Cinneadh
Mr Ken Foxe & DAA Public Limited Company (DAA)
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-156150-T1H5S5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-156150-T1H5S5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether DAA was justified in refusing access to the information sought relating to purchase orders over €20,000 in Q3 2024 on the basis that it is not environmental information or under articles 9(2)(a), 9(1)(c), and 9(1)(a) of the AIE Regulations.
20 June 2025
1. On 1 November 2024, the appellant submitted the following request to DAA: “I’ve taken into account the decision in AIE request 2435 and have decided to reduce the scope considerably for a new and separate request. Under the AIE Regulations, I am seeking the following: - a database/spreadsheet/record of all purchase orders/payments in excess of €20,000 for Q3 2024. Please ask the decision maker to refamiliarise themselves with the following so that they can make the distinction of what is and isn't expenditure that would be captured by AIE: https://ocei.ie/en/ombudsman-decision/1c10e-right-toknow-clg-and-bord-na-mona/ I would prefer to receive this information electronically, ideally in its original electronic format. If you need to clarify anything in this request, please contact me via email.”
2. On 30 December 2024, DAA issued its decision, refusing the appellant’s request under articles 9(2)(a) and 9(1)(c) of the AIE Regulations. Subsequently, the appellant sought an internal review of that decision. On 29 January 2025, DAA issued its internal review decision, affirming its decision under articles 9(2)(a) and 9(1)(c) of the AIE Regulations. On 31 January the appellant submitted an appeal to this Office of DAA’s decision.
3. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between DAA and the appellant as outlined above and to correspondence between my Office and both DAA and the appellant on the matter. In addition, I have had regard to:
• 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);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• 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
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the Aarhus Guide)
4. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
5. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
6. During the course of this review, DAA provided this Office with a copy of the spreadsheet it had identified as relevant to the appellant’s request and made submissions to this Office (discussed in more detail below). In addition to noting that further to articles 9(2)(a) and 9(1)(c) it was seeking to rely on article 9(1)(a) of the AIE Regulations, it also outlined its view that none of the information sought was environmental information.
7. In the circumstances of this case, while whether information is “environmental information” is a threshold jurisdictional question, I am satisfied that this review concerns whether DAA was justified in refusing access to the information sought on the basis that it is not environmental information or under articles 9(2)(a), 9(1)(a), and 9(1)(c) of the AIE Regulations.
8. A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law at the time of this decision. Accordingly, I consider it appropriate to examine DAA’s position that the information sought is not environmental information and the applicability of the additional exemption cited by DAA in its submissions to this Office, article 9(1)(a) of the AIE Regulations.
Definition of Environmental Information
9. Article 3(1) of the AIE Regulations is the relevant provision to consider where the issue is whether information is “environmental information”. In line with Article 2(1) of the AIE Directive, article 3(1) of the AIE Regulations provides that "environmental information" means: "any information in written, visual, aural, electronic or any other material form on –
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c). "
10. In addition, there are a number of judgments of the Superior Courts, which deal with the definition of environmental information; Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), Redmond & Anor v Commissioner for Environmental Information & Anor [2020] IECA 83 (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB No. 1), Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ) and Electricity Supply Board v Commissioner for Environmental Information [2024] IEHC 17 (ESB No. 2). There are also decisions of the European Court of Justice in case C-316/01 Glawischnig v Bundesminister für Sicherieit und Generationen (Glawischnig) and case C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), and the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney) (which is referenced in the decisions in Redmond, ESB No. 1, RTÉ and ESB No. 2); and the decision of the UK Upper Tribunal in Department for Transport, DVSA and Porsche Cars GB Ltd v Information Commissioner and John Cieslik [2018] UKUT 127 (AAC) (Porsche).
11. According to national and EU case law, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB No. 1 at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU. However, the right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the definition.
12. In my view, paragraph (c) of the definition, which provides that “environmental information” means any information on measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements, is the most relevant to this review. Paragraph (c) has three requirements to be considered: (1) the identification of a measure or activity, (2) whether that measure or activity is affecting, likely to affect, or designed to protect the environment (i.e. has the requisite environmental effect) (3) whether the information sought is “on” the measure or activity. Further detail relating to these three requirements is set out below.
• Paragraph (c) requires the identification of a relevant measure or activity, which the information sought is “on”. Information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB No. 1 at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term ‘measure’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity” (Mecklenburg at paragraph 20), and a similarly expansive approach should be taken to the term ‘activity’ (RTÉ at paragraph 19).
• A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. Collins J, delivering judgment on behalf of the Court of Appeal in Redmond, noted that “something more than a remote or theoretical possibility is required (because that would sweep too widely and could result in the “general and unlimited right of access” that Glawischnig indicates the AIE Directive was not intended to provide) but it is not necessary to establish the probability of a relevant environmental impact (because that would, in my opinion, sweep too narrowly and risk undermining the fundamental objectives of the AIE Directive)” (paragraph 63).
• As “any information … on” a measure or activity affecting or likely to affect the environment is prima facie environmental information, the information at issue does not, in itself, have to affect or be likely to affect the environment in order to constitute information “on” such a measure (Redmond at paragraphs 57 and 59). As the High Court outlined in its decision in the ESB No. 1 case, relying on the English Court of Appeal decision in Henney, that information is “on” a measure if it is about, relates to or concerns the measure (see paragraph 41 of ESB No. 1, referring to paragraph 37 in Henney). The question as to whether information is “on” a measure is fact and context specific. This question is to be considered by reference to the Directive and Aarhus Convention. According to Henney, the recitals to both the Directive and Convention “give an indication of how the very broad language of the text of the provisions may have to be assessed and provide a framework for determining the question of whether in a particular case information can properly be described as "on" a given measure” (at paragraph 48).
• Importantly, while Henney uses the terms “critical”, “fundamental” or “integral”, it did so to describe the relationship between the communications and data component of the smart meter plan and the overall smart meter plan. There was a dispute in that case between the parties as to what was the correct measure. The Court did not use these terms to say that for information to be on a measure it had to be critical, fundamental or integral to that measure.
• I note the purposive test as articulated in Henney. The Court of Appeal in Redmond noted that the Court of Appeal of England and Wales in Henney suggests that, in determining whether information is “on” the relevant measure or activity, it may be relevant to consider the purpose of the information such as why it was produced, how important it is to that purpose, how it is to be used, and whether access to it advances the purposes of the Aarhus Convention and AIE Directive (see Redmond at paragraph 99). Information that does not advance the purposes of the Aarhus Convention and AIE Directive may not be “on” the relevant measure or activity (Redmond at paragraph 99). The test set out in Henney was also explicitly endorsed by the High Court in the RTÉ case (see paragraph 52) and is also referenced in the recent ESB No. 2 judgment.
13. In its original and internal review decisions, DAA indicated its view that some of the information sought could be environmental information, however further examination was required. As outlined above, during the course of this review, DAA made submissions to this Office. It noted that notwithstanding that some of the information sought could be environmental information and exemption provisions provided for in article 9 of the AIE Regulations applied, it was of the view that none of the information sought was environmental information. It commented:
• “Related to but without prejudice to the above [discussion regarding 9(2)(a) and 9(1)(c)], we are strongly of the view that it is unlikely that this information would be considered Environmental Information under the definition in the AIE Regulations. The POs requested could relate to various matters that do not touch on any of the issues referred to in that definition.
• “We also note that, contrary to the decision in the recent Bord na Mona matter (decision OCE128538-M9C1X7) (the BnM decision), daa undertakes several functions which are not related to the environment or environmental issues. Large parts of daa’s commercial business do not come within that definition. For example, daa and its subsidiaries operate the retail businesses in Dublin and Cork Airports (and at a large number of airports abroad) and act as licensor in respect of the vast number of food and beverage units in Dublin and Cork Airports. daa also acts as a commercial landlord in respect of the numerous office buildings at Dublin and Cork Airports, including the commercial office development known as Dublin Airport Central.”
• “This point of distinction is very important in assessing whether is it likely that this information would actually come within the definition of Environmental Information. We also note the sliding scale referred to in para 47 of the BnM decision. It refers to the judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner EWCA Civ 844 (the Henney case) which states that information related to a public authority’s procurement of canteen services in the department responsible for delivering a road project would likely be considered too remote. The likelihood is that (assuming that the definition of environmental information is fulfilled) there would be numerous instances of these “canteen services” type payments caught by the current request.
• “Additionally, we understand that there is a current High Court Appeal in the case of ESB Networks DAC v the Commissioner for Environmental Information, High Court Record No. H.MCA.2025.0000076 (the ESB case) underway in relation to the definition of Environmental Information which we believe would be relevant to the outcome of the question of whether the information in this case does come within that definition. That case relates to whether inter alia legal fees paid to external counsel constitute environmental information. daa contends that the outcome of that case will impact on this matter and that any decision by the Commissioner in this case as to whether the information sought constitutes environmental information, should be deferred pending a determination of the ESB case. As the ESB case relates to the extent to which legal payments made by public authorities when carrying out their activities constitute environmental information, the ultimate determination in the ESB case will no doubt be of direct relevance to the issue of whether payments made by public authorities of the type at issue here constitute environmental information.”
• “In addition, as this is a threshold issue, and the extent of the Commissioner’s jurisdiction will be determined by it, we would urge the Commissioner to defer proceeding to determine this matter, until the ESB case has been determined. daa also points out that there is precedent for deferring a determination of matters pending High Court consideration. Determinations by the Commissioner were deferred in several cases, pending the outcome of a decision by the High Court case of OCEI v Coillte Teoranta and People over Wind [2023] IEHC 227”
14. At this point, I wish to set out that OCE-128538-M9C1X7 concerned whether Bord na Mona (BnM) was justified in refusing access to information sought relating to all purchase orders over €20,000 in 2019, 2020, 2021, and 2022 contained on an identified spreadsheet on the basis that the information is not “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations. In that case, I found that information relating some purchase orders over €20,000 (i.e. those integral to the undertaking of operations of BnM likely to affect the environment) is very likely to be environmental information within the meaning of paragraph (c) of the definition in article 3(1) of the AIE Regulations. That decision annulled BnM’s decision to refuse access to the information sought relating to all purchase orders over €20,000 contained on the identified spreadsheet in that case on the basis that it is not “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations. It directed BnM to carry out a fresh internal review decision-making process.
15. As noted, it appears that in its original and internal review decisions DAA was initially of the view that the information sought could comprise environmental information. However, as outlined above, it appeared to revise this view in its submissions to this Office, stating that it was unlikely that the information sought would be environmental information. It stated that the purchase orders “could relate to various matters that do not touch on any of the issues referred to in OCE-128538-M9C1X7 . However, it gave no further consideration as to why that might be the case other than to state that:
“contrary to the decision in [OCE-128538-M9C1X7], daa undertakes several functions which are not related to the environment or environmental issues. Large parts of daa’s commercial business do not come within that definition. For example, daa and its subsidiaries operate the retail businesses in Dublin and Cork Airports (and at a large number of airports abroad) and act as licensor in respect of the vast number of food and beverage units in Dublin and Cork Airports. daa also acts as a commercial landlord in respect of the numerous office buildings at Dublin and Cork Airports, including the commercial office development known as Dublin Airport Central.”
16. While DAA may be involved in a wide range of functions, in arguing that certain are not “related to the environment or environmental issues” it did not provide any substantive analysis of the definition as provided for in the AIE Regulations. It also made no effort to identify whether any of the functions referred to above were actually relevant to the purchase orders listed or to consider any other functions. Furthermore, while it referred to Henney, seemingly in the context of addressing whether information might be “on” a measure/activity with the requisite environmental effect, and commented that “the likelihood is that…there would be numerous instances of these “canteen services” type payments caught by the current request,” it again provided no further detail or examples in respect of the actual information at issue. It is also important to note that while the approach in OCE-128538-M9C1X7 may be relevant to the approach to be taken in assessing whether the information sought in this case is environmental information, the factual matrix of each matter is important.
17. I turn to DAA’s comments regarding H.MCA.2025.0000069, which concerns an appeal to the High Court of decisions of this Office on the question of whether information related to costs for the engagement of external legal services for processing AIE requests, appeals and litigation is environmental information. While certain information relevant to the case at hand may overlap with the matters on appeal to the High Court, DAA made no specific argument in that regard. Furthermore, even if some of the purchase orders at issue in this case relate to costs for the engagement of external legal services for processing AIE requests, appeals and litigation, I do not accept that all of the purchase orders at issue in this case relate to those particular costs. It was open to DAA in this case to refuse access to the information sought in respect of specific purchase orders related to costs for the engagement of external legal services for processing AIE requests, appeals and litigation on the basis that it did not such information to be “environmental information”, however it did not identify any such purchase orders nor did it provide any reasoning for the refusal on that basis in either its decisions or its submissions to this Office. In circumstances where this case concerns a broader range of purchase orders and is not limited to specific purchase orders related to costs for the engagement of legal services for processing AIE requests, appeals and litigation, I am satisfied that it was not appropriate for me to place this case on hold pending receipt of the High Court’s guidance in H.MCA.2025.0000069
18. Articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stage, consistent with Article 4(5) of the AIE Directive. It is widely accepted that the duty to give reasons arises not only by virtue of the AIE Regulations and Directive but that it is recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90).
19. Having regard to all of the above, it is clear that DAA has not provided adequate reasons for its position that all (or some of) the information sought is not “environmental information” in either its decisions or its submissions to this Office. It is most disappointing that DAA does not appear to have fully engaged with its obligations under the AIE Regulations. In the circumstances of this case, where I do not accept that DAA has properly assessed whether the information sought is “environmental information”, I cannot find that its decision to refuse access to all of the information sought on the basis that it is not “environmental information” justified. Notwithstanding that the definition of “environmental information” is a threshold issue and I do not consider it appropriate, where DAA has not fulfilled its obligations under the AIE Regulations, for this Office at this stage to make a specific determination in that regard, I will proceed to consider DAA’s application of articles 9(2)(a), 9(1)(c), and 9(1)(a) of the AIE Regulations.
Article 9(2)(a) of the AIE Regulations
20. Article 9(2)(a) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. This provision seeks to transpose Article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and, in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.
21. Article 9(2)(a) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
22. The Minister’s Guidance, at paragraph 12.8, states that article 9(2) of the AIE Regulations “clarifies that a public authority may refuse to make information available if the request is considered unreasonable due to the range of material sought, if the request is too general or if the material requested is not yet completed. Public authorities are requested to invoke these grounds for refusal sparingly, and to assist the applicant (to reformulate a request, for example) as appropriate” (my emphasis). In light of this, I am of the view that where a public authority intends to refuse a request under article 9(2)(a) of the AIE Regulations, it should first assist the appellant to reformulate the request as appropriate. Both public authorities and appellants should seek to liaise constructively with a view to processing the request as efficiently as possible.
23. DAA, in its original decision included the following comments:
“Despite the revised request for data relating to a shorter period, the additional requirements identified above would make the work involved in collating and reviewing data pertaining to your request manifestly unreasonable. For context, the file shared on identifies over 350 purchase orders, with related payments and withholding tax deductions adding to the complexity.”
24. DAA, in its submissions to this Office included the following comments:
“In accordance with the AIE Regulations, we have determined, under Article 9(2)(a), that the request is manifestly unreasonable. This is notwithstanding that daa sought and the applicant agreed to refine the scope of his request. To fulfil the refined scope of this request, we will be required to identify the relevant contract related to each PO and to then review each individual contract to identify the subject matter of the contract. The file shared identifies 423 purchase orders that meet the threshold of over €20,000 during the period requested.”
25. While DAA referred to correspondence with the appellant to refine the scope of the request, it unfortunately did not provide a copy of that correspondence to this Office. I note that the appellant’s original request refers back to another previous separate request, stating “I’ve taken into account the decision in AIE request 2435 and have decided to reduce the scope considerably for a new and separate request”. It is unclear to me what correspondence related to refinement of the request at issue (dated 1 November 2024) took place. Where the applicable correspondence has not been provided to this Office, I cannot be satisfied that DAA provided reasonable assistance to the appellant in refining his request. It is important to note that constructive engagement is not, in and of itself, a requirement for a public body’s reliance on or an immediate basis for refusal under article 9(2)(a) of the AIE Regulations.
26. The European Commission’s First Proposal for the AIE Directive envisaged that the exception in Article 4(1)(b) would cover requests “variously described in national legal systems as vexatious or amounting to an abus de droit.” It noted that “compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. Public authorities should be able to refuse access in such cases in order to ensure their proper functioning.” The Aarhus Convention Compliance Committee (ACCC) has emphasised that “whether or not a request is manifestly unreasonable relates to the nature of the request itself, for example, its volume, vagueness, complexity or repetitive nature, rather than the reason for the request, which is not required to be stated.” (Report adopted on request for advice by Belarus, ACCC/A/2014/1, para. 28).
27. In respect of a request which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, it is clear that a request is not necessarily covered by the “manifestly unreasonable” exception just because it is voluminous or complex. Both article 7(2)(b) of the AIE Regulations and Article 3(2)(b) of the AIE Directive specifically envisage that public authorities will deal with voluminous or complex requests, albeit in a longer timeframe. I further note the parallel duty in Article 7(1) of the AIE Directive to ensure that public authorities organise environmental information with a view to its active and systematic dissemination to the public, and article 5 of the AIE Regulations which seeks to implement that provision. In his Opinion in C-217/97 Commission v Germany at paragraph 30, Advocate General Fennelly stated that the duty in Article 7 of the AIE Directive indicates that individual requests should, in principle, be on matters of detail. Accordingly, the fact that a request is detailed does not mean that it is necessarily unreasonable.
28. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, I must examine whether responding to the request would involve the public authority in disproportionate cost or effort, or would obstruct or significantly interfere with the normal course of its activities. In light of the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission, at paragraphs 101-115, I consider that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request. I expect that if a public authority wishes to rely on the manifestly unreasonable nature of a request, that public authority will clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.
29. This position is supported by recent comments from Advocate General Medina in his opinion on Coillte v Commissioner for Environmental Information Case C-129/24, in which he stated “in so far as it constitutes an exception to the general rule that information must be provided, refusal on the ground of a manifestly unreasonable request must remain exceptional”. In this opinion he also states “In particular, with regard to the volume of the information requested, according to Article 3(2)(b) of Directive 2003/4 that factor (as well as the complexity of the information requested) justifies an extension of the one-month time limit in which the administration must reply. It follows from a combined reading of Article 3(2)(b) of Directive 2003/4 and Article 4(2)(b) of that directive that the volume of the requested information alone does not render a request manifestly unreasonable”. He concludes however that a holistic view must be taken of each case, stating “it follows that determining whether a request is manifestly unreasonable depends not on the number, the nature or the frequency of requests taken in isolation, but on all the circumstances of each case.”
30. It is also important to bear in mind article 5 of the AIE Regulations and Articles 7 and 3(5) of the AIE Directive, which place duties on public authorities to organise and actively disseminate environmental information, to support the public in seeking access to information and to put practical arrangements in place to ensure the effective exercise of the right to access environmental information. It is not within this Office’s powers to examine the implementation of article 5 of the AIE Regulations or article 7 of the AIE Directive by public authorities. However, I am satisfied that the exemption in article 9(2)(a) is not intended to endorse any failure by a public authority to comply with its duties to organise and disseminate environmental information under those provisions. Furthermore, in every case, regard should be had to the purpose of the AIE Regime, as reflected in Recital 1 of the Preamble 6 to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment.” Accordingly, in cases involving article 9(2)(a) this Office may consider whether the information requested is the kind of environmental information that one would expect to be organised by the public authority in a manner that enables its easy dissemination.
31. In his statement of appeal to this Office, the appellant included the following comments:
• “The request is not manifestly unreasonable. It covers only a single quarter of the year. Such lists of purchase orders are published as a matter of routine by every public body in the state. The type of analysis discussed in the daa decision letter is not necessary. They could simply use the subheadings in the financial management system they have to determine which of these are likely to be environmental or not.”
• “I would also again like to draw the attention of the CEI to the routine use of four-week extensions when it is obvious that the daa never had the slightest intention of releasing any of this information.”
32. I wish to note that the fact that other public bodies are required to generally or decide to publish purchase orders over €20,000, does not automatically mean that DAA is required to have made a determination purchase orders over €20,000 as to whether it is environmental information or that DAA is required to publish details relating to purchase orders over €20,000 under the AIE Regulations, where they comprise environmental information. However, adequate reasons for any decision to refuse access under the AIE Regulations must be provided.
33. I understand that DAA applied an extension in this case. Regarding the appellant’s comments to this Office expressing his disappointment that an extension was applied. It is important to note that there is no specific appeal right to this Office in respect of a public authority’s decision to apply an extension.
34. In its original decision, DAA included the following comments regarding its reliance on article 9(2)(a) of the AIE Regulations:
• “In accordance with the AIE Regulations, we have determined that, under Article 9(2)(a), we find that the request is manifestly unreasonable due to the volume and range of information sought. Having reviewed the level of internal requirements to fulfil your request in more detail, we feel that it remains manifestly unreasonable and non-specific, requiring that all our purchasing and payment activity would need to be trawled through in detail.”
• “In many cases, the work to identify if a purchase order relates to environmental information or not is more time-consuming than first estimated and requires cross-functional engagement to ensure the correct classification is arrived at. Having discussed the request at more length with our internal Procurement and Legal teams, new requirements have been identified as precursors to potentially sharing any information outside of the company. These include:
o Review of all contracts and purchase terms and conditions related to the relevant suppliers to ensure sharing this data would not expose daa to any potential litigation from its suppliers or other third parties.
o Notification to suppliers whose data is to be shared to ensure they have an opportunity to respond.”
• “Despite the revised request for data relating to a shorter period, the additional requirements identified above would make the work involved in collating and reviewing data pertaining to your request manifestly unreasonable. For context, the file shared on identifies over 350 purchase orders, with related payments and withholding tax deductions adding to the complexity.”
35. In its internal review decision, DAA included the following comments regarding its reliance on article 9(2)(a) of the AIE Regulations:
• “In accordance with the AIE Regulations, I have concluded that, as per Article 9(2)(a), the request is manifestly unreasonable due to the extensive volume and variety of information being sought. Upon a thorough examination of the internal resources that would be required to address your request, I maintain that it remains “manifestly unreasonable” and that the request lacks specificity. I agree with the original rationale outlined in our initial response letter.”
• “In our initial response letter, we outlined that determining whether a purchase order pertains to environmental information is very labour-intensive. We estimate between two and four months would be required to assess the relevant data. Our Procurement and Legal teams also highlighted that before any information can be shared externally a comprehensive review of all supplier contracts and purchase terms must be completed to confirm that sharing data is in line with the relevant contracts and legal obligations, and would not breach the rights of daa or obligations to suppliers or third parties by sharing.”
36. In its submissions to this Office, DAA included the following comments regarding its reliance on article 9(2)(a) of the AIE Regulations:
• “In accordance with the AIE Regulations, we have determined, under Article 9(2)(a), that the request is manifestly unreasonable. This is notwithstanding that daa sought and the applicant agreed to refine the scope of his request. To fulfil the refined scope of this request, we will be required to identify the relevant contract related to each PO and to then review each individual contract to identify the subject matter of the contract. The file shared identifies 423 purchase orders that meet the threshold of over €20,000 during the period requested. We estimate the total time to complete a review of all POs and associated individual contracts to assess whether they relate to issues that could be considered to be environmental information to be c. 212 hours, or 26.5 working days (allowing 30 mins per PO) for this one task alone. This would impose a significant burden on staff who already operate under significant commercial pressures.”
37. While DAA in its decisions, expanded upon in its submissions to this Office, gave some indication of the number of purchase orders (423) at issue, the work involved, resources required, and time to be taken in processing the request involved, it gave no breakdown of the estimated 30 minutes per purchase order (total c.212 hours) across the various tasks involved. It is unclear to me how the estimated 30 minutes per purchase order was arrived at. DAA also did not identify the number of, or which staff member(s) would be involved, explain their day-to-day duties, or give any indication as to how their other work / other work of DAA would be impacted. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request, and this requires the public authority to provide a satisfactory level of detail regarding the time it would take to process the request. This detail should include how many staff members would be required, what steps would be involved in answering the request and how much time would be spent on each of those tasks.
38. In light of the above, it is clear that DAA did not provide adequate reasons for refusal of the information at issue under article 9(2)(a) of the AIE Regulations. While this Office considers each matter on an individual basis, I would draw DAA’s attention to two recent decisions involving BnM and purchase orders over €20,000 and the type of detail this Office considers relevant when considering article 9(2)(a) of the AIE Regulations (see OCE-153652-R3F4T1 and OCE-154128-B4C9Y0).
Article 9(1)(c) of the AIE Regulations
39. Article 9(1)(c) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or European law to protect a legitimate economic interest. This provision seeks to transpose Article 4(2)(d) of the AIE Directive, which, in turn, is based on Article 4(4)(d) of the Aarhus Convention. Article 9(1)(c) of the AIE Regulations must also be read alongside article 10 of the AIE Regulations.
40. The Minister’s Guidance, in considering article 9(1)(c) of the AIE Regulations, states:
“The fact that a person or company asks for information to be treated as confidential does not of itself establish it as such for the purpose of the Regulations, and the public authority must satisfy itself that real and substantial commercial interests are threatened. In addition, the fact that the release of information (for example, in relation to a pollution incident) might damage the reputation of a company is not of itself adequate reason for withholding it.” (paragraph 12.4)
41. When relying on article 9(1)(c) of the AIE Regulations a public authority must show that the information at issue is commercial or industrial in nature; that the commercial or industrial information has an element of confidentiality; that the confidentiality of that commercial or industrial information is provided for in law to protect a legitimate economic interest; and that the economic interest, and thereby its confidentiality, would be adversely affected by disclosure of the information at issue. The public authority must demonstrate a clear link between disclosure of the information that has actually been withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical. A mere assertion of an expectation of harm is not sufficient.
42. In his statement of appeal to this Office, the appellant included the following comments:
• “The information is not commercially sensitive anymore than the lists of purchase orders published by every public body in the state are commercially sensitive. While they give an overarching picture of spending, they provide only an extremely broad categorisation of expenditure without any detail on what work was involved, the extent of it, or how long the work took. It is important also to note that while the daa is a semi-state agency, it has no competitors in the Republic of Ireland and has a monopoly on air travel in the cities it operates.
• Separately, I wish to add that a similar request made by me to the Dublin Port Company for 2022, 2023, and most of 2024 was answered without any apparent difficulty. I am happy to send that material to the CEI if it is of assistance to give perspective on the scope of this request and how it applies to a similar semi-state.
43. In its original decision, DAA included the following comments regarding its reliance on article 9(1)(c) of the AIE Regulations:
• “The information requested is commercial in nature: The details of purchase orders and payments are considered commercially sensitive as they contain financial and operational data that are integral to our business operations.”
• Confidentiality is required to protect a legitimate economic interest: Disclosure of this information could significantly damage our competitive position and economic interests by revealing sensitive financial data to competitors. This concern is significantly heightened based on the potential impact on tender processes that are being run at present and will be run in the future. These tenders are publicly issued and said data could facilitate extrapolation of existing pricing terms, undermining these processes and negatively impacting the pricing terms achieved through the same.
• Adverse effect on economic interest: The release of this information could undermine our economic interests by providing competitors with insights into our financial dealings, potentially leading to a loss of competitive advantage.”
44. In its internal review decision, DAA included the following comments regarding its reliance on article 9(1)(c) of the AIE Regulations:
• “Furthermore, under Article 9(1)(c), I agree with the original determination that the requested information is of a commercial nature and that the specifics of purchase orders and payments are deemed commercially sensitive, as they encompass financial and operational data critical to our business functions. It is essential to safeguard daa’s legitimate economic interest as the disclosure of this information could severely undermine our competitive standing and economic interests by revealing sensitive details. It could also very negatively impact the commercial interests of daa suppliers.”
45. In its submissions to this Office, DAA included the following comments regarding its reliance on article 9(1)(c) of the AIE Regulations:
• “While we appreciate that the OCEI is regularly in receipt of confidential information, it is incumbent upon us to flag that the financial information contained within this material is highly sensitive and that its disclosure would cause serious harm to daa’s commercial interests and ultimately to the State as daa’s shareholder. Additionally, it could cause serious harm to the commercial interests of third parties identified in the material, as set out below.”
• “It is also important to note that daa is a Commercial Semi State Organisation, and not a Public Sector Organisation. This has the effect that there are legitimate commercial concerns arising for daa that may not arise for some public bodies without a commercial mandate. We would request that this distinction please be borne in mind when considering this request. There are companies in the daa group, the debt securities of which are traded on the Irish stock exchange and which come under EU and Irish legislation in that regard. This creates further distinctions between daa and some other purely state entities and creates concerns around the release of this information.”
• “Without prejudice to my view that this request is manifestly unreasonable due to the reasons set out above, and that the question of whether the information sought constitutes Environmental Information remains unresolved, for completeness I am of the view that if it was considered to be Environmental Information, the exemption under Article 9(1)(c) would apply to this information, as the component elements of that exemption are clearly satisfied by this information”
• “The information requested is commercial in nature. The details of purchase orders and payments are clearly commercial in nature and are considered commercially sensitive as they contain financial data that are integral to our business operations, and that of our suppliers.
• Confidentiality is required to protect a legitimate economic interest: Disclosure of this information could significantly damage our competitive position and economic interests by revealing sensitive financial data to competitors. This concern is significantly heightened based on the potential impact on tender processes that are being run at present and will be run in the future. These tenders are publicly issued, and this data could facilitate extrapolation of confidential pricing terms of suppliers to daa, undermining these processes and negatively impacting the pricing terms achieved through the same. Enforced disclosure of sensitive information could deter companies from participating in future daa tenders due to the fear of their confidential information being disclosed, leading to them losing their competitive advantage. This reduced participation could limit the pool of bidders in daa tenders and lead to less competition in the market.”
• The information is subject to a duty of confidence. Additionally, it is likely that the relevant contracts underlying these POs contain confidentiality obligations. This is usually the case with daa standard contracts. In those cases, we would need to identify the relevant supplier in each case and then contact the supplier and seek consent from the supplier to share the relevant information.
• The release of this information could undermine our economic interests by providing competitors with insights into our financial dealings, potentially leading to a loss of competitive advantage. It could also lead to an adverse impact on our supplier’s economic interest as their competitors could extrapolate confidential information from this release.
46. As noted above, when relying on article 9(1)(c) of the AIE Regulations a public authority must show that the information at issue is commercial or industrial in nature; that the commercial or industrial information has an element of confidentiality; that the confidentiality of that commercial or industrial information is provided for in law to protect a legitimate economic interest; and that the economic interest, and thereby its confidentiality, would be adversely affected by disclosure of the information at issue. The public authority must demonstrate a clear link between disclosure of the information that has actually been withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical. A mere assertion of an expectation of harm is not sufficient.
47. As noted above, I wish to reiterate that the fact that other public bodies are required to generally or decide to publish purchase orders over €20,000, does not automatically mean that DAA is required to have made a determination purchase orders over €20,000 as to whether it is environmental information or that DAA is required to publish details relating to purchase orders over €20,000 under the AIE Regulations, where they comprise environmental information. However, adequate reasons for any decision to refuse access under the AIE Regulations must be provided.
48. Although the DAA appears to have considered whether the information at issue is commercial or industrial in nature and whether confidentiality is required to protect a legitimate economic interest, it did not explain why the financial data is particularly sensitive, other than stating it is integral to its business operations and that of its suppliers, did not provide further details as to how its competitive position would be undermined, or give any examples of relevant tender processes.
49. In addition, while DAA referred to the “duty of confidence” and “relevant contracts” it merely mentioned same and provided no further detail or analysis in respect of its consideration of whether the confidentiality of the information at issue is provided for in law to protect a legitimate economic interest. It also provided no evidence of or examples from any specific contracts.
50. Furthermore, while DAA stated that release could undermine its economic interests by providing competitors with insights into its financial dealings potentially leading to a loss of competitive advantage and could also lead to an adverse impact on its supplier’s economic interests as their competitors could extrapolate confidential information from its release - these are speculative claims, the DAA made no attempt to demonstrate a clear link between disclosure of the particular information at issue and any adverse effect.
51. Accordingly, I do not find that DAA’s reliance on article 9(1)(c) of the AIE Regulations is justified. In the circumstances, I am not required to consider article 10.
Article 9(1)(a) of the AIE Regulations
52. Article 9(1)(a) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect international relations, national defence, or public security. This provision seeks to transpose Article 4(2)(b) of the AIE Directive, which in turn is based on Article 4(4)(b) of the Aarhus Convention. Article 9(1)(a) must also be read alongside article 10 of the AIE Regulations.
53. When relying on article 9(1)(a) of the AIE Regulations, the public authority should identify the relevant limb(s) of the provision concerned (i.e. international relations, national defence, or public security) and show how disclosure of the information at issue would have an adverse effect on that limb(s). Again, 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 international relations, national defence, or public security being undermined must be reasonably foreseeable and not purely hypothetical.
54. The term “public security” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, I note that Regulation (EU) 2018/1807 of the European Parliament and of the Council of 14 November 2018 on a framework for the free flow of non-personal data in the European Union outlines, at Recital 19:
“The concept of ‘public security’, within the meaning of Article 52 TFEU and as interpreted by the Court of Justice, covers both the internal and external security of a Member State, as well as issues of public safety, in order, in particular, to facilitate the investigation, detection and prosecution of criminal offences. It presupposes the existence of a genuine and sufficiently serious threat affecting one of the fundamental interests of society, such as a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or the peaceful coexistence of nations, or a risk to military interests. In compliance with the principle of proportionality, data localisation requirements that are justified on grounds of public security should be suitable for attaining the objective pursued, and should not go beyond what is necessary to attain that objective.”
55. The Aarhus Guide (p.86) explains that:
“The Convention does not define the terms “international relations”, “national defence” or “public security”, but it is implicit that the definition of such terms should be determined by the Parties in accordance with their generally accepted meaning in international law. Many national Governments already have similar exceptions in place and have interpreted them narrowly. Some countries have chosen to require information concerning the environment to be made publicly accessible, regardless of how it affects international relations, national defence or public security.”
56. In its submissions to this Office, DAA included the following comments regarding its consideration of article 9(1)(a) of the AIE Regulations:
“We have specific concerns around the publication of details of the supplier of IT services to Dublin and Cork Airports, and as such the release of this information could present issues in relation to Information Technology and Cyber Security. In an industry where the threat of cyber-attack is ever present and where such an attack could have devastating consequences for the travelling public, we would be very concerned about this information being made generally public. In this regard, daa considers that Article 9(1)(a) is a relevant consideration as it entitles public authorities to refuse to make available environmental information where disclosure of the information would adversely affect public security.”
57. As indicated above, the wording of article 9(1)(a) of the AIE Regulations makes it clear that there must be some adverse effect on public security in order for the exception to apply. There must be a clear link between disclosure of the specific information that it has withheld and any adverse effect. The risk of public security being undermined must be reasonably foreseeable and not purely hypothetical. A mere assertion of an expectation of harm is not sufficient.
58. I understand that it is DAA’s position that disclosure would adversely affect public security. DAA stated that it has specific concerns around the publication of details of the supplier of IT services to the airports, as the release of the information could present issues in relation to information technology and cyber security, and it has concerns regarding release “in an industry where the threat of cyber-attack is ever present and where such an attack could have devastating consequences for the travelling public”. However, DAA did not provide any further detail regarding its concerns related to public security or explained how, or the likelihood that, the release of the particular information at issue relating to the purchase orders, including the details of the supplier of IT services, would give rise to a cyber-attack. In my view, it has failed to provide sufficient evidence to support the assertion that a cyber-attack would occur on foot of the release of the information at issue such that public security would be undermined.
59. Accordingly, I do not find that DAA’s reliance on article 9(1)(a) of the AIE Regulations is justified. In the circumstances, I am not required to consider article 10.
60. As indicated above, articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stages, consistent with Article 4(5) of the AIE Directive. It is clear that DAA did not provide adequate reasons for refusal of the appellant’s request in either its decisions or submissions to this Office. Accordingly, I am satisfied that DAA did not justify its refusal on the basis that the information sought is not environmental information or under articles 9(2)(a), 9(1)(c), or 9(1)(a) of the AIE Regulations. In the circumstances where the spreadsheet of purchase orders identified and provided to this Office has not been properly considered by DAA and it includes information relating to third parties, I do not believe that it is appropriate for me to assess the spreadsheet in detail and/or direct the release of information at this point. My Office has a significant backlog of appeals and I consider that it is not the best use of our resources to carry out the task of reviewing information which has not been done by public authorities in the first instance. In re-considering the matter afresh, should DAA wish to refuse access to any of the information concerned on the basis it is not “environmental information” or wish to refuse access to any of the environmental information concerned under articles 8 or 9 of the AIE Regulations, it must fully set out its reasons for reaching its conclusions as well as, where relevant, its considerations of article 10 of the AIE Regulations, including paragraphs (3), (4), and (5).
61. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul DAA’s decision. I direct DAA to carry out a new internal review decision-making process in respect of the appellant’s request.
62. 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