Cinneadh
Mr X. and Meath County Council
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-142176-N6B9X1; OCE-142487-P1N9V0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-142176-N6B9X1; OCE-142487-P1N9V0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified, on the basis of article 8(a)(iv), article 9(2)(c) of the AIE Regulations, in refusing to provide access to the requested material.
5 September 2025
1. This decision concerns two appeals to this Office against the Council’s decisions on two requests submitted by the appellant under the AIE regulations. The subject matter of both appeals is essentially the same. Both appeal concern requests for similar information from planning files relating to applications for planning permission by the same developer on adjacent sites. Access was refused in both appeals under the same provisions of the AIE Regulations. Both appeals are, therefore, being dealt with jointly in this decision.
Request 1: OCE-142176-N6B9X1
2. On 8 July 2023, the Appellant made a request to the Council for the following:
“For planning file 23500 please forward a copy of any document not on the web portal. This would include the planners report recommending further information be sought.”
3. On 8 August 2023, the Council refused the request, citing article 8(a)(iv), article 9(2)(c) of the AIE Regulations as the basis for the refusal.
4. On the same day, the Appellant sought an internal review of the Council’s decision. On 7 September 2023, the Council issued its internal review which affirmed the original decision on the same grounds. The Council identified three records falling within the scope of the appellant’s request; the application form (containing contact details), internal reports (Referral Letters to Internal Staff for: - Public Lighting - Transportation - Conservation Officer - Fire Officer Report - Housing – Broadband) and the planner’s report. Access to all three records was refused.
5. The appellant appealed to my Office on 25 July 2023.
Request 2: OCE-142487-P1N9V0
6. On 21 July 2023, the Appellant made the following request to the Council:
“Could you send me copies of any file not on the planning portal for cases 23500 and 23542, this would include the planner’s report recommending FI in each case.”
The appellant subsequently clarified that the information sought was only in respect of file 23542.
7. The Council identified 16 records falling within the scope of the appellant’s request, broadly falling into the following categories: Internal reports (Broadband, Transport, Housing, Public Lighting, Environment, Environment Flooding, Fire Officer’s Report) Planner’s Report- F1 and Requests for Internal Reports. On 18 August 2023, the Council granted access to Requests for internal requests (Schedule 5) but refused the remainder of the appellant’s request on the basis of article 8(a)(iv), article 9(2)(c) of the AIE Regulations.
8. The appellant requested an internal review on 21 August 2023. On 20 September 2023, the Council issued its internal review which affirmed the original decision on the same grounds.
9. The appellant appealed to my Office on 8 September 2023.
10. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Council. In addition, I have had regard to:
a. the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
11. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
12. In accordance with article 12(5) of the AIE Regulations, my role is to review the Council’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Council to make available environmental information to the appellant.
13. The scope of this review is to determine whether the Council was justified in refusing access to the requested material on the basis of exceptions under article 8(a)(iv) and article 9(2)(c) of the AIE regulations.
14. In this case, the two planning applications relevant to these appeals were ultimately withdrawn in January 2024, and it appears that at least some of the information requested was published on the Council’s website. However, I consider it appropriate to continue to consider this appeal and issue a decision in order to provide guidance to the Council and other public authorities as to how cases such as this might be dealt with in the future. I should note that decisions of the Commissioner are not considered to create precedent, and facts may vary from case to case, but the general principles set out below should be of assistance when dealing with future requests of a similar nature.
15. In relation to article 8(a)(iv) of the AIE Regulations, the appellant cited the CJEU judgment in Flachglas Torgau GmbH v Federal Republic of Germany Case C-204/09 where the concept of “proceedings” was defined as “the final stages of the decision-making process of public authorities.”
16. The appellant contended that the elements required to engage the exception under the article are that proceedings (final stages of the decision-making process of public authorities and only the deliberation (i.e. discussion) stage of decision-making procedures) must be identified. He said that the concept of decision-making should only refer to the actual making of the decision and not the entire administrative procedure leading to the decision.
17. He stated that the records sought in these appeals do not relate to deliberations but are simply technical reports which are part of the administrative procedure which precedes deliberation. The fact that a decision has not issued on the overall grant or refusal of planning permission simply illustrates that the deliberation stage had yet to be reached, as the identified documents are part of the information gathering stage.
18. He also said the other elements of the Article 8(a)(iv) of the AIE Regulations have not been met, specifically that the information is confidential, protected by law and that the confidentiality would be adversely affected by disclosure. While the Council, in its decision (original and internal review) cited Section 33 of the Planning and Development Regulations 2001, the appellant stated that this provision simply outlines “the further information process” and is not a basis for confidentiality. He said that it also illustrates that the requested information relates to the information gathering stage and not the deliberation part of the procedure.
19. The appellant argued that article 9(2)(c) of the AIE Regulations does not apply; the requested documents have been completed and require no further input and are not, therefore, being actively worked on. He referred to the Opinion of the Advocate General, Roheline Kogukond MTÜ and Others, Case C-234/22, EU:C:2023:68. In that case, he said that the fact the material involved would go on to inform further reports, as is the case in the present appeals, was found not to be a relevant ground to refuse disclosure.
20. With regard to the right of access to environmental information under the AIE Regulations and transparency in the planning process, the appellant argued that the earlier planning information is made available, the better prepared the public can be to participate in further stages in the procedure. He stated, for example, that if further information submitted is advertised for public observations, the public only has two weeks to respond. Having the planning authority’s internal reports available at the earliest possible stage, therefore, makes it easier to prepare for this stage, given the tight timeframe. He argued that even if an exception were engaged, this outweighs the public interest in refusing to grant access.
21. The Council stated that the information related to confidential proceedings of a public authority. This confidentiality was protected by law and would be adversely affected by the disclosure of the information sought. It referred to Section 33 of the Planning and Development Regulations 2001, stating that this provision provides the legislative basis for the availability of documents in planning applications.
22. Furthermore, it stated that a public authority may refuse to make environmental information available where the request concerns material in the course of completion, or unfinished documents or data; the proceedings in this case would be complete once the Planner made a decision on the case.
23. It also stated that a public interest test was carried out as required under Article 10 (3). The factors in favour of release included public access to environmental information rights, transparency in the planning process and allowing the public to have a voice in matters that affect the environment. The factors against release were that the seeking of further information indicated that planning assessment was still under deliberation and that, on balance, the public interest was best served by withholding the information “as the statutory provisions take precedence”. It stated that if the developer returned the requested information within the requisite 6-month time-period, the information would be released to the public.
24. Article 8(a)(iv) of the AIE Regulations permits refusal to disclose information where to do so would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law.
25. It provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts). This provision seeks to transpose Article 4(2)(a) of the AIE Directive, which in turn is based on Article 4(4)(a) of the Aarhus Convention.
26. When relying on article 8(a)(iv) of the AIE Regulations a public authority must identify the proceedings to which the information at issue relates and show that those proceedings have an element of confidentiality, that the confidentiality of those proceedings is protected by law, and that the disclosure of the information at issue would adversely affect that confidentiality. The public authority must demonstrate a clear link between disclosure of the specific information that it has withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
27. The term “proceedings” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, the CJEU in C-204/09 Flachglas Torgau GmBH v Bundesrepublik Deutschland set out that the concept of proceedings “refers to the final stages of the decision-making process of public authorities” (paragraph 63). A similar conclusion was reached by the CJEU in C-60/15 Saint-Gobain Glass Deutschland v Commission. Although that case dealt with Regulations 1049/2001 and 1367/2006 rather than the AIE Directive, it considered the provisions of the Aarhus Convention, upon which both the AIE Directive and the AIE Regulations are based. The Court noted “…Article 4(4)(a) of the Aarhus Convention provides that a request for environmental information may be refused where disclosure of that information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law, and not the entire administrative procedure at the end of which those authorities hold their proceedings” (paragraph 81). Also, Advocate General Szpunar in that case indicated that “the concept of ‘proceedings’ must be understood as covering only the deliberation stage of decision-making procedures” (see paragraph 51 of the Opinion).
28. In these cases, I consider that the relevant proceedings are the planning applications in question. The requested information consists of technical reports on the planning applications in question, and reports of a planner who assessed the applications and recommended seeking further information. This stage clearly precedes any final decision on the planning applications. Due to this, I cannot be satisfied that the information sought sufficiently relates to the final stages of decision-making process in respect of the planning applications. While it may be the case that such reports would ultimately be considered as part of that final decision-making stage, that is not sufficient to bring them within the exemption provided for in article 8(a)(iv). As per the comments of the CJEU in Saint-Gobain, above, this exemption does not protect the entire administrative process that leads up to a final decision-making stage.
29. In any event, it appears that neither application (planning file 23500 and planning file 23542) ever reached the final decision-making stage. The online status for both applications show that they were withdrawn on 21 January 2024, prior to any decision being issued. With respect to planning file 23542, further information was requested on 14 July 2023 but there is no record of the planning authority having received this further information. Further information was requested in file 23500 on 5 July 2023 and, similarly, there is no record of the further information having been received prior to the application being withdrawn. Both applications are listed as “incomplete applications”. This only further emphasises that the final decision-making stage of the applications had not been reached at the time of the request, as the applications had not been completed.
30. Given the above, I cannot find that that the information sought relates to the final stage of the decision-making process and due to this, article 8(a)(iv) cannot apply.
31. I will also note that the decisions of the Council appeared to suggest that section 33 of the Planning and Development Regulations 2001 provided a legislative basis for the confidentiality of the relevant proceedings in these appeals. This provision provides:“The Planning Authority may issue a request for further information (a) to submit any further information (including any plans, maps or drawings, or any information as to any estate or interest in or right over land), which the authority considers necessary to enable it to deal with the application, or (b) to produce any evidence which the authority may reasonably require verifying any particulars or information given in, or in relation to, the application.” This provision simply sets out the procedure and I do not consider it to provide a basis for confidentiality in law as required by article 8(a)(iv).
32. When relying on article 9(2)(c) of the AIE Regulations, the public authority should explain why the information at issue falls within the scope of the exception, outlining which limb(s) of the exception is being relied upon. It is then for the public authority to weigh the public interest served by disclosure against the interest served by the refusal as is required by articles 10(3) and 10(4). I note the comments of the CJEU in Case C-619/19, Land Baden-Württemberg v DR (Land Baden-Württemberg):
“…[A] public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.” (paragraph 69)
33. The terms “material in the course of completion” and “unfinished documents or data” are not defined in the AIE Regulations, AIE Directive, or the Aarhus Convention. However, the decisions of the CJEU in Land Baden-Württemberg, and Case C-234/22, Roheline Kogukond MTÜ and Others v Keskkonnaagentuur (Roheline Kogukond MTÜ), provide some guidance on the exception.
34. While Land Baden-Württemberg more specifically concerned the internal communications exception (discussed in further detail below), the Court indicated that both the internal communications exception and the exception concerning material in the course of completion and unfinished documents or data are “intended to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions” (see paragraph 44).
35. In Roheline Kogukond MTÜ, which dealt with the question as to whether data on the location of permanent sample plots for a statistical forest inventory were to be classified as material in the course of completion or unfinished documents or data, the Court referred to the decision in Land Baden-Württemberg. In considering the material in the course of completion and unfinished documents or data exception, it noted at paragraphs 37 to 41:
“The referring court asks, in the first place, whether disclosure of the coordinates for the location of the permanent sample plots used for the periodic collection of data with a view to drawing up a national statistical forest inventory may be refused on the basis of point (d) of the first subparagraph of Article 4(1) of Directive 2003/4, which allows Member States to refuse a request for environmental information relating to documents in the course of completion or to unfinished documents or data.
Although the concepts of ‘material in the course of completion’ and ‘unfinished documents or data’ are not defined by [the AIE Directive], it is apparent from the explanations relating to Article 4 of the Proposal for a Directive of the European Parliament and of the Council on public access to environmental information presented by the Commission on 29 June 2000 (COM(2000) 402 final) (OJ 2000 C 337 E, p. 156) that the purpose of that exception is to meet the need of the public authorities to have a protected space in which to pursue internal considerations and debates (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C-619/19, EU:C:2021:35, paragraph 44). The Court has also held that, unlike the ground for refusing access provided for in point (e) of the first subparagraph of Article 4(1) of Directive 2003/4 relating to internal communications, that provided for in point (d) of the first subparagraph of Article 4(1) of the directive relates to the preparation or drafting of documents and is therefore of a temporary nature (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C-619/19, EU:C:2021:35, paragraph 56).
That interpretation is corroborated by that of Article 4(3)(c) of the Aarhus Convention, which provides for an exception to the right of access to environmental information in relation to documents in the course of completion, and by the explanations contained in the document entitled “The Aarhus Convention: An implementation guide (second edition, 2014)” published by the United Nations Economic Commission for Europe, which, although it has no normative value, is one of the elements that may guide the interpretation of that convention (see, to that effect, judgment of 16 February 2012, Solvay and Others, C-182/10, EU:C:2012:82, paragraph 27).
The location coordinates of permanent sample plots used for the collection of data for drawing up a national statistical forest inventory cannot be regarded as documents in the course of completion or as unfinished documents or data when they relate to the state of the forest on a given date.
The fact that those sample plots are used to measure developments in the state of forest resources and soils in successive statistical forest inventories or other reports does not call that conclusion into question. To interpret it otherwise would be tantamount to allowing the exception provided for in point (d) of the first subparagraph of Article 4(1) of Directive 2003/4 to be applied without any time limit, even though that exception is, as has been pointed out above, of a temporary nature.”
36. As indicated above, the first question to be addressed is whether or not article 9(2)(c) of the AIE Regulations is engaged on the basis that the information at issue “concerns material in the course of completion, or unfinished documents or data” (i.e. which limb(s) of the exemption is being relied upon).
37. It is this Office’s view that “material in the course of completion” relates to the process of preparing information/documents. The Aarhus Guide states that “the expression ‘in the course of completion’ relates to the process of preparation of the information or the document and not to any decision-making process for the purpose of which the given information or document has been prepared.” However, this Office considers that the factual circumstance of each case is relevant to assess and considers that this exemption may apply in two ways, firstly to information that is itself in the course of completion or unfinished, but secondly to information that while not itself material in the course of completion or unfinished, sufficiently concerns the material in the course of completion or unfinished information.
38. I consider that the purpose of this exemption is to give public authorities time and private space to draft and amend documents that they are preparing before they are finalised. The European Commission acknowledged this interest in its First Proposal for the AIE Directive, as did the Court of Justice of the European Union in Case C 619/19 Land Baden-Württemberg v. D.R. at paragraph 44. I emphasise that this interest is in maintaining the confidentiality of draft documents while they are still being actively worked on, rather than in maintaining the confidentiality of completed documents pending the conclusion of decision-making process.
39. In Roheline Kogukond MTÜ, the information at issue concerned location coordinates of permanent sample plots used to draw up the Estonian statistical forest inventory. The CJEU noted that “the permanent sample plots, the location coordinates of which are requested…, are sampling units used for the periodic collection of data with a view to drawing up, by extrapolation, statistical reports on forest stands in Estonia and on land use and development. Those sample plots are located on the sides of 64- hectare square plots, chosen for their representative nature of the state of the forest and soils.” The CJEU held that “[t]he location coordinates of permanent sample plots used for the collection of data for drawing up a national statistical forest inventory cannot be regarded as documents in the course of completion or as unfinished documents or data when they relate to the state of the forest on a given date. It noted that “the fact that those sample plots are used to measure developments in the state of forest resources and soils in successive statistical forest inventories or other reports does not call that conclusion into question. To interpret it otherwise would be tantamount to allowing the exception…to be applied without any time limit, even though that exception is…of a temporary nature.”
40. Advocate General Kokott in her Opinion commented “the data on the location of the permanent sample plots of the statistical forest inventory are already available in full and therefore do not fall into any of the three categories [provided for in the exception]” (paragraph 60). She further stated, at paragraphs 61 to 64:
“The fact that the data on the location of the permanent sample plots of the statistical forest inventory are to be used to regularly produce further reports on the state of the forests does not change that. Those reports and the information collected therein may at certain times fall under the abovementioned categories of cases and thus within the exception pursuant to Article 4(1)(d) of the Environmental Information Directive. However, that does not mean that the location data may be withheld. While they are explicitly or implicitly part of the reports, they are significant in their own right regardless of the individual reports, which may not yet have been completed. That is also demonstrated by the fact that those location data not only form the basis of reports that are still being processed, but – as the Environment Agency acknowledges – also form the basis of reports that have already been completed in the past.
The above considerations on the possibly limited interest of the public in the disclosure of the location data do not change the conclusion. They do not change the fact that the location data are part of operations that have already been completed.
It would be contrary to the temporary nature of that exemption to apply it indefinitely to certain data by reason of the repeated use of that data, even though the data has already been definitively established. Rather, the exception is intended to apply only during a specific period, that is to say during the processing of materials, documents and data. The idea of a time-limited application of that exception is confirmed by the second subparagraph of Article 4(1) of the Environmental Information Directive, according to which a refusal to disclose material that is in the process of being completed must already indicate when the material is expected to be complete.
Therefore, data on the location of the permanent sample plots of a regularly repeated statistical forest inventory do not constitute material in the process of being completed, nor are they documents which have not yet been completed or data which have not yet been processed for the purposes of Article 4(1)(d) of the Environmental Information Directive.”
41. I wish to reiterate that the particular factual scenario in each individual case must be considered and, in addition to the specific information at issue, is a key factor in assessing the application of article 9(2)(c) of the AIE Regulations. Cases are often distinguished on their facts.
42. As stated above, I am satisfied that article 9(2)(c) of the AIE Regulations can be relied upon in circumstances both where the information itself is, for example, “material in the course of completion” or “unfinished data”, and where the information concerns “material in the course of completion” or “unfinished data”.
43. I consider that “material in the course of completion” refers to the process of preparing “material” that is itself being actively worked on (just because smething is labelled “draft” does not necessarily mean it is “in the course of completion”). However, while informatin no longer being actively worked on may not itself be “material in the course of completion” it may concern material in the course of completion. In assessing whether the information at issue concerns “material in the course of completion”, I am of the view that it is necessary to identify material that is actively being worked upon, be able to explain why and how the information at issue concerns that material, and consider whether the information at issue is a separate and independent piece of work to that material – if the information at issue is a separate and independent piece of work, the exception will not be applicable. I also consider that the material that is actively being worked upon must have a physical existence (it cannot be something that does not have a physical existence (e.g. a project, exercise or process, although it can be part of same). For example, an overarching project, even if it is not complete, cannot be considered to be “material in the course of completion”, however individual documents that form part of the project might be if they have not yet been completed.
44. With regard to the present appeal, the Council has not explained why the information at issue falls within the scope of the exception, outlining which limb(s) of the exception is being relied upon. The material at issue is not being actively worked upon. The requests for reports and the reports themselves have been completed and were complete at the time of the request. The material is not, therefore, “in the course of completion”.
45. Similarly, the information sought does not concern material in the course of completion. The Council has not explained why and how the information at issue concerns that material or set out whether it considered if the information at issue is a separate and independent piece of work to that material. The fact that the information sought relates to a planning application process that was at the time ongoing is not sufficient to bring it within the exemption provided for in article 9(2)(c). As set out in the Aarhus Convention, in the course of completion relates to preparing information or documents and not to a decision-making process the information or documents has been prepared for. In Roheline Kogukond MTÜ, the fact that information was to be used to inform further reports did not render it “material in the course of completion”. The completed requests and reports completed on foot of the requests are separate and independent pieces of work.
46. From all the foregoing, the exceptions under articles 8(a)(iv) and article 9(2)(c) of the AIE Regulations do not apply and I annul the decisions of the Council and direct release of the information sought. It may be the case that some or all of the requested information is available on the Council’s website and, if so, the Council may direct the appellant to where the information is available.
47. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Council’s decision in refusing access to the requested material under articles 8(a)(iv) and 9(2)(c) of the AIE Regulations and I direct release of the information sought.
48. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information