Cinneadh
Dr. Fred Logue and Meath County Council
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150825-Q3J6X6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150825-Q3J6X6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in giving access to information relating to the appeal other than in the form or manner requested under article 7(3)(a) of the AIE Regulations and, in refusing access to additional requested information on the basis of articles 7(5), 9(1)(c) and 9(2)(c).
8 July 2025
1. On 23 April 2024 the appellant made a request for information to Meath County Council (the Council) relating to material published for the consultation on proposed variation number 1 to the Meath County Development Plan (CDP), detailed below:
1. Copy of letter dated 3 July 2023 to Minister O’Brien (pdf)
2. The documentation and/or specification for the “Residential Tracking and Monitoring System” for Co Meath, including all instruction manuals, operating procedures etc. (pdfs)
3. A copy of the dataset making up the “Residential Tracking and Monitoring System” in an open format that complies with the Open Data Directive (Directive 2019/1024/EU and/or SI 376/2021)
4. A copy of the review of the residential monitoring data that informed Table 2.12 that is referred to in the second last paragraph of page 5 of the document explaining the proposed variation (https://consult.meath.ie/en/system/files/materials/8524/Variation%20No.1%20of %20the%20Meath%20CDP%202021-2027.pdf) (Excel format)
5. A list of the planning register numbers of the planning permissions making up the 781 units identified as completed and/or expired in 2019 and therefore outside of the housing allocation period of 2020-2027 (Excel Format)
6. The current housing capacity for all settlements in Meath in Tiers 1 to 5 inclusive (Excel format).
2. On 21 May 2024 the Council wrote to advise the appellant of a delay in the issuing of the decision, noting that:
“In respect of your request, due to the complexity of your request and unexpected staff leave, it will not be possible to make a decision on your request within the standard one-month timeframe. Accordingly, I am extending the timeframe for dealing with your request by one month from the date indicated to you in the acknowledgement letter. The decision-maker will therefore notify you of the decision as soon as possible, but at the latest by 21/06/2024 ”
3. On 21 June 2024 the Council issued its original decision which part granted access to the information sought, providing the below by way of response:
“Access to information sought is refused in accordance with :
• 9 (2) A public authority may refuse to make environmental information available where the request
• C) Concerns material in the course of completion, or unfinished documents or data
Commentary :
Item 2: The specification which Meath County Council utilise is per Section 10.3.1 Core Strategy Monitoring contained in the Section 28 Development Plans, Guidelines for Planning Authorities, June 2022, published by the Dept. of Local Government & Heritage; p113.
Item 3: The most up to date verified data which the Planning Authority have is publicly available in a story map format on the MCC website via the following link:
The story map provides key housing data for each settlement in the county since the coming into effect of the Meath CDP 2021-2027 in accordance with the Development Plans Guidelines for the Planning Authorities. Data on the number and type of residential units permitted along with the housing mi, is provided for each settlement in the county. The number of units commenced and completed in each settlement is also provided. The story map is in interactive format which allows the public to zoom into a particular settlement and obtain details on the number of units which have been permitted since the commencement of the Meath CDP 2021-2027.
Items 4 &5 : The list of permissions considered is attached. No review or report exists in this regard.
Item 6 : The Planning Dept. do not have a database which details the current housing capacity for all settlements in Meath for Tiers 1-5. The capacity available in a particular settlement is constantly changing and is therefore assessed at each planning application stage.
Regarding making the housing dataset publicly available, Meath County Council as the competent authority is the responsible body mandated in the both the Local Government Act and Planning and Development Act 2000-2022 to carry out this work in the administrative area of County Meath. Planning is not and should not be a simple arithmetic or numbers exercise. The implementation of the Core Strategy and the development of settlements are dynamic and are subject to change on the foot of expiring planning permissions or the grant of additional planning permissions. Consequently, a publicly available dataset may be out of date within days of its publication.
When assessing planning applications within the context of the Core Strategy, Meath County Council must rely on Section 4 and Section 10 of the Development Plan Guidelines for Local Authorities 2022 which distinguishes between permissions that have commenced construction and permissions that are yet to commence. While yet-to-commence permissions represent potential housing delivery over the plan period, they cannot be considered in isolation of the wider issues.
These wider issues include units delivered, expiring permissions, phasing of permissions, planning appeals, the current and anticipated rate of housing delivery, infrastructural constraints, or other impediments that will be assessed at the pre-planning and planning phase of an application for residential development. The number of large-scale residential developments that have been legally challenged through the courts in recent years are also a major impediment to housing delivery and causing further confusion in the monitoring and management of Core Strategies.
Given the above variety of factors involved, the number of units granted permission is only one element of the Core Strategy and does not determine the remaining units available as confirmed by Section 4.4.1 and Appendix A Section 1.2.3 of the Development Plan Guidelines for Local Authorities 2022. Section 10.3 of the Development Plan Guidelines 2022 requires Annual Core Strategy Monitoring (page 113).
Section 10.3.1 states ‘It is a policy and objective of these Guidelines that an Annual Development Plan Monitoring Report containing this key information is assembled by the planning authority and made available to the elected members. It shall be published thereafter including on the website of the planning authority’. The most recent Annual Core Strategy Monitoring figures can be found via the following links on the meath.ie website:
In arriving at a decision on your request, I confirm that I have had regard to the provisions of Article 10 of the Regulations, as a decision to refuse to disclose information under Article 9 must not be taken in isolation from the relevant provisions in Article 10.
In line with Article 10(3), my deliberations have included weighing the public interest served by disclosure against the interest served by refusal.
The factors in favour of release of this information are:
• the right of the public to exercise their rights under the AIE legislation.
• the transparency of the Planning Process.
The factors in favour of withholding this information are:
• Allowing the Planning Authority the allocated timeframe to gather and carry out due diligence on data and publish the material in line with statutory guidelines.
I have decided that, on balance, the public interest in this case is best served by withholding this information. It is anticipated that the next publication of data will take place in December 2024 in accordance with Section 10.3 of the Development Plan Guidelines 2022.”
4. On 25 June 2024, the appellant requested an internal review decision on parts 3, 4 and 6 of the request. He also queried why the Council had extended the original decision by one month when in his view “there is nothing in the response that warranted an extra month, given that it essentially points to existing websites and the remainder is a small amount of pre-existing information”.
5. Details of the internal review request quoted as follows:
Pt 3. “I asked for the data set and not the front-end viewer. This viewer is very difficult to interrogate, but presumably the data required under Section 10.3.1 of the Development Plan Guidelines exists in an open format. My expectation is that the data should be provided in the format requested. I wish to receive the data in excel format.”
Pt 4. “This part asked for the review mentioned in the material published with Variation 1 to the Meath CDP: A review of the Residential monitoring data that informed Table 2.12: Core Strategy Table, on Population and Household distribution to 2027 has identified an issue in the existing residential planning permissions in the County. While it was previously understood that the existing units not yet built in the county comprised 5,820 units, subsequent commencement and completion data as part of the Two-Year Review of the County Development Plan identified that 781 of these units were completed and/or expired in 2019 and therefore were outside of the household allocation period of 2020 -2027. This situation occurred as a result of delays in the preparation and adoption of the Meath County Development Plan 2021-2027 which was originally planned for adoption in 2019 but incurred significant delays pending the publication of the National Planning Framework 2018, Regional and Economic Spatial Strategy in 2019 and the Covid pandemic in 2020. Since the Variation documentation specifically mentions a review and this was used to ground a proposed variation to the CDP then it is not credible that there is no documented review or report.”
Pt 6. “This is not material in the course of completion since it relates to the capacity of settlements at a particular point of time. The concept of material in the course of completion is that the exception will be time-limited. The fact that the information may change in the future would mean that this exception would in essence be indefinite and therefore this is not a correct interpretation (See case 234/22 paras 39 to 40). The Council’s views on how the requested information might be used or whether it is out of date is irrelevant to the request. I am not required to state an interest in making a request. However, the Council’s own document on Variation No 1 states: Where settlement household allocations are therefore reaching or at capacity and where centrally located brownfield/infill sites remain available for development, prioritization will be given to vacant sites in town centre locations once physical and social infrastructure is available and adequate. ”
6. On July 24th, 2024, the Council issued its internal review decision, affirming its original decision and offering the below commentary on the three outstanding categories of information (parts 3,4 and 6 of the request) as below:
Pt 3. “I have reviewed the response and the link to data provided under No. 3 of your original request and I affirm the decision of the original decision maker. Under AIE Regulations, Article 7(3) Meath County Council is entitled to provide information in a format other than that requested, if it is already available to the public in another form or manner that is easily accessible. I believe this is a reasonable format, allowing you examine in detail the data you have requested .”
Pt 4. “I have reviewed the response and the link to data provided under No. 4 of your original request and I affirm the decision of the original decision maker. You have received confirmation that there was no report produced following the review of the residential monitoring data, and therefore nothing that can be released under your AIE request. We have attempted to assist your investigations by releasing the Planning references of the permissions that fell outside of the household allocation period, i.e. were complete and/or expired in 2019. We do not hold a report that can give any further information on this. ”
Pt 6. “I have reviewed the response and the link to data provided under No. 6 of your original request and I confirm that I affirm the decision of the original decision maker but believe that Article 10(6) is the applicable article for this refusal. As you have stated, you are looking for information on capacity at a particular point in time. Live data regarding capacity is not maintained for all settlements but examined each time a planning application is received. (A very comprehensive response on why a publicly available dataset on the implementation and management of the Core Strategy is not feasible, has been provided in the AIE Response). I note your position in relation to the data constantly changing and agree that this should not be the reason for not releasing the information. However, you have been provided with a link to the data produced following the County Development Plan Two Year Progress report from the end of 2023, and it has been confirmed that there will be a further publication of data in December 2024. Meath County Council is not obliged to complete this exercise at the time of your request, and create new records, when there is a plan and timeframe for the up to date information being made available (Articles 9(2)(c) & 10(6) apply_).”
7. The appellant appealed to the OCEI on 29 July 2024, with respect to parts 3, 4 and 6 of his request, based on his view that this information had been wrongly refused.
8. 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 Meath County Council 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’).
What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
9. 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.
10. The scope of this review concerns whether the Council was justified in giving access to information relating to the appeal other than in the form or manner requested under article 7(3)(a) of the AIE Regulations and in refusing access to additional requested information the basis of articles 7(5), 9(1)(c) and 9(2)(c). As parts 1, 2 and 5 of his request were granted at original decision stage by the Council, the scope of this review concerns parts 3, 4 and 6 only.
11. I note that the Council chose to invoke the one-month time extension to answer the original request as provided for under Article 7(2)(b) of the AIE Regulations, citing the “complexity” of the request and “unexpected staff leave” as the reason for same. I remind the Council that this extension is only available where a public authority is unable, because of the volume or complexity of the environmental information requested, to make a decision within one month from receipt of the original request. Firstly, unexpected staff leave is not a basis on which to apply the time extension and secondly, to invoke the article on the basis of the complexity of a request requires the public authority to identify how the information requested reaches this threshold, to simply state that it is complex without elaborating on why, is insufficient.
12. The appellant provided a detailed submission alongside his appeal, which I will both summarise and quote directly from below, as appropriate.
13. With respect to part 3 of the request, concerning the data set making up the residential tracking and monitoring system in an open format, the appellant contends that the Story Map which the Council referred to as a source of the requested information, is not appropriate, as it is not a dataset and is not an open format, noting that the front-end viewer format which the map provides is ‘hard to interrogate’. The appellant contends that the information used to inform this map must exist in an open data format and that under article 7(3)(a) the information should be provided to him in the format he requested.
14. With respect to part 4 of the request, concerning access to the review of the residential monitoring data referred to in proposed variation 1 of the CDP, the appellant contends that in his view it is not credible that such a report does not exist, as the Council asserts. The appellant further notes:
“How can a public authority decide to vary its development plan without a documented evidential basis to back up the variation? The Council is a hierarchical bureaucratic organisation. I simply don’t believe that there is no record of the review identified in the Draft Variation. Perhaps there isn’t a document with the label “report”, but the Council says there was a review and therefore should provide the documentation evidencing this review .”
15. With respect to part 6 of the request, which sought the current capacity for all settlements in Meath (tiers 1 to 5), the appellant states that:
“_The Council refused this part of the request on the basis that the Planning dept. does not have a database which details the current housing capacity for all settlements in Meath for Tiers 1 and 5 because the capacity is constantly changing and is therefore assessed at each planning application stage. It appears that the reason for the refusal was based on Regulation 9(2)(c), material in the course of competition or unfinished documents or data.
On internal review I pointed out that this exception could not be invoked in relation to data which is regularly updated since it would conflict with the temporary nature of the exception (case C-234/22, 39 to 40). The internal review response was incoherent. It said that live data is not maintained regarding capacity at a particular point in time or for all settlements but is examined each time a planning application is received.
The decision agrees that the constantly changing nature of the data is not a reason for refusal and then points to the response to the other parts of the request (which doesn’t include information on settlement capacity). It then states that Meath County Council is not required to create new records when there is a plan and timeframe for the up-to-date information being made available (9(2)(c) and 10(6) apply)_.”
16. It is the appellant’s contention that if the Council assesses capacity on a regular basis when in the process of reviewing planning applications then the information being sought in the request “clearly exists and is readily available to the Council ” citing that:
“It seems to me that given that there is a daily need within the Council for information on existing settlement capacity it is a routine operation to extract information to answer the request. In other words, I am not asking the Council to extract data that it would otherwise not extract for its own use. Therefore, I am not asking to Council to create a new record. Record should be interpreted in its broadest sense to include information that may be routinely accessed from a database ”.
17. The Council provided further submissions to this Office during the course of this review, the key points of which I have set out below.
18. In relation to part 3 of the request, the Council provided a copy of the dataset to the OCEI, acknowledging that this resource informs the Story Map, however it stated that it has ‘grave concerns’ with respect to releasing the data, relying on article 9(2)(c) and 9(1)(c) to outline its position.
19. The Council contend that as this data set contains only permissions granted, rather than units delivered, it does not represent housing capacity and further that it is subject to on-going, sometimes daily change, stating:
“When assessing planning applications within the context of the Core Strategy, Meath County Council must rely on Section 4 and Section 10 of the Development Plan Guidelines for Local Authorities 2022 which distinguishes between permissions that have commenced construction and permissions that are yet to commence. This dataset does not contain commenced or completed housing data, expiring permissions, phasing of permissions, planning appeals, or the current and anticipated rate of housing delivery and infrastructural constraints .
The Council are concerned that if this dataset is made public, the appellant, landowners and members of the public will, in isolation of the other considerations outlined above, incorrectly perceive the dataset as reflecting the remaining housing capacity of a settlement and mislead the public when published in the absence of the several caveats that must be considered when reviewing this data. Accordingly, the Council asks the Investigator to avail of the right to refuse under Section 9(2)(c) of the AIE Regulations whereby the dataset is regarded an unfinished data, designed to inform the County Development Plan Annual Monitoring Report and Online Story Map which is published annually_”.
20. The Council further contend that release of the dataset has a “potential inflationary effect ” on residentially zoned land in certain settlements, stating:
“While the dataset forms part of a wider set of considerations that inform housing delivery, the dataset also has the potential to identify the settlements that are nearing their household allocation with planning permissions alone, and therefore, identify the settlements where remaining available residential zoned lands without planning permission have become in short supply. This is because the quantum of lands zoned in the Meath CDP 2021-2027 generally correlates with the housing allocation for a settlement. The release of this information has the potential to increase the market value of the remaining residential zoned lands in such settlements. Land values are highly speculative, particularly in areas with significant development pressure or where there's a strong expectation of future growth, as is the case in many of the settlements of Meath. This dataset has the potential to indicate where limited supply of zoned lands exists, which will increase their perceived value and impact the future purchase price for developers and house purchasers. The Council asks the Investigator to refuse this request on Discretionary Refusal reason 9(1)(c) where the data is allowed to avail of confidentiality to protect a legitimate economic interest. ”
21. In relation to part 4 of the request, the Council have stated that:
“_Before the commencement of Variation No.1 to the Meath CDP 2021-2027, the council carried out a review of the Excel database of planning permissions granted during the Core Strategy timeframe of 2020-2027. When reviewing the planning permissions granted, a number of planning permissions that were delivered prior to 2020, were found. The result of this discovery meant these permissions were counted in Table 12.2 Column F as ‘extant units not yet built’ when in fact, these units were already built and taken into account in Column E ‘Approximate households completed 2016-2019’, leading to double counting of figures.
The review of this Excel also found planning permissions that had expired in 2019 without having commenced, and therefore, also required removal from the planning permission database. While no report was produced, these planning permissions that were incorrectly included in the planning permission database for 2020-2027, were removed from the excel and placed into separate excel tab. The Excel table containing the planning permissions that were removed was sent to the appellant when requested. This was the search undertaken that informed Draft variation 1/ Table 2.12_”.
22. In relation to part 6 of the request, the Council reiterate their contentions previous outlined with respect to refusing access to information in Part 3 of the request, that the release of this data in its ‘current’ state at any point in time could lead to a “flawed interpretation of housing capacity levels in a settlement, as it does not set out infrastructural constraints etc that inhibit developmental capacity ”. The Council further state that while they support operating in a transparent environment, they are concerned that “the release of this information would serve to further inflate land values in the residential construction sector, where the public interest in disclosure would not outweigh the greater good of withholding it as outlined in Section 9(1) c of the AIE Regulations ”.
Part 3) A copy of the dataset making up the residential tracking and monitoring system in an open format that complies with the Open Data Directive
23. In its original decision, the Council directed the appellant to the Story Maps section of its website in respect of this part of the request. The Council did not at this stage specifically rely on article 7(3) or explain why it was seeking to provide the data in this format. In its internal review decision, the Council did rely on article 7(3)(a), stating that the information requested was already accessible in another format, via the Story Map site. During this appeal, the Council also contended that articles 9(2)(c) and 9(1)(c) also apply to this part of the request. I will review the application of each of these three articles below.
24. The AIE Regulations also make it clear that the default position is that an appellant is entitled to be provided with information in the form or manner requested. It is only possible to depart from that default position where the requirements of article 7(3)(a) are satisfied.
25. Article 7(3)(a)(i) of the AIE Regulations provides that where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless the information is already available to the public in another form or manner that is easily accessible. Article 7(3)(a) of the AIE Regulations seeks to transpose article 3(4)(a) of the AIE Directive, which provides that where an applicant requests a public authority to make environmental information available in a specific form or format (including in the form of copies), the public authority shall make it available, unless it is already publicly available in another form or format which is easily accessible by applicants.
26. It is important to note that article 7(3)(a) must be read alongside article 7(3)(b), which provides that where a public authority decides to make available environmental information other than in the form or manner specified in the request, the reason therefore shall be given by the public authority in writing.
27. The Council provided a copy of the dataset to this Office. The dataset, which is in excel format, contains quantitative information which includes planning permissions granted/under appeal, land zone use, type of settlement/unit type, with information tracked against the Core Development Strategy, where relevant.
28. The story maps section of the Council website contains a variety of information and maps within a progress report on the County Development Plan. The maps contain information including planning permission granted (including applicant name), development description, unit type, total units built and land zone use.
29. While the information in the data set and in the Story Maps is similar, the data set also tracks the units with permission per settlement against the Core Strategy. Also, notably, the data set contains more up to date information as it is updated on a weekly basis, while the story maps section of the website is updated on a quarterly basis. The effect of this is that the story maps did not hold information that was accurate as of the date of the appellant’s request, while the data set would have been much more up to date.
30. The accessibility of the Story Map, however, is evidentially different from that of the dataset. The Story Map site does not provide the detail in an open format, making the extraction of information for broad review challenging.
31. The appellant’s request for this information asks for a dataset in open format, with which the Story Map site does not comply by the nature of the limits attached to the usability of the interface its hosted on. While the site allows viewers to engage with an interactive map and choose individual settlements to access further detail, this is a front-end viewer and extracting the information for the purposes of a creating an open data set would prove difficult and time consuming.
32. Having considered all of the above, I find that the Story Map site cannot be considered to equate to the information requested in another form or manner which is easily accessible or could be considered reasonable, as per the obligations of article 7(3)(a). The story map site is not easily accessible, does not contain all of the information contained in the dataset, and is not updated as frequently as the dataset.
33. The appellant correctly contends that the information does exist as a dataset maintained by the Council, in open/excel format. Next therefore, I must consider the arguments put forward by the Council in refusing to release this data set, in its reliance on 9(2)(c) and 9(1)(c).
34. Article 9(2)(c) of the AIE Regulations provides 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. This provision transposes Article 4(1)(d) of the AIE Directive, which in turn is based on part of Article 4(3)(c) of the Aarhus Convention. This exemption is not harm-based. It is not necessary for the public authority to show that there is any adverse effect in respect of the release of the information at issue to engage the exception, just that the information concerns material in the course of completion, or unfinished documents or data, although, as noted below, there is still a requirement to then consider the public interest.
35. Article 9(2)(c) of the AIE Regulations must be read alongside article 10 of the AIE Regulations:
i. 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.
ii. 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.
iii. Article 10(5) of the AIE Regulations provides that nothing in articles 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.
iv. Article 10(6) of the AIE Regulations states that where a request is refused pursuant to article 9(2)(c) because it concerns material in the course of completion, the public authority shall inform the applicant of the name of the authority preparing the material and the estimated time needed for completion.
36. 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).
37. At the outset, it is important to note that this article allows for the withholding of information under two categories, “material in the course of completion ” and “unfinished documents or data ”. It has been established that the first of these categories applies only to documents that are being actively worked upon at the date of a request. The explanation of this term in the Aarhus Guide notes that “the words ‘in the course of completion " suggest that the term refers to individual documents that are actively being worked on by the public authority. Once those documents are no longer in the course of completion they may be released, even if they are still unfinished and even if the decision to which they pertain has not yet been resolved. “In the course of completion ” suggests that the document will have more work done on it within some reasonable timeframe. I acknowledge that the Aarhus Guide is an aid to interpretation rather than a binding document. However, its interpretation accords with the wording of article 4(1)(d) of the AIE Directive and article 9(2)(c) of the AIE Regulations, both of which, importantly, extend the exemption in the Aarhus Convention to information that constitutes “unfinished documents or data ” at the date of a request.
38. 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.
39. While Land Baden-Württemberg more specifically concerned the internal communications exception, 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).
40. The first question I must consider therefore, 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 ”. It is my 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.” I consider 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.
41. 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.
42. I consider that “unfinished data ” is data that a public authority is still collecting at the time of the decision. Again, in assessing whether the information at issue concerns “unfinished data ”, I am of the view that it is necessary to identify the data that is actively being collected, be able to explain why, and how, the information at issue concerns that data, and consider whether the information at issue is a separate and independent piece of work to that data – if the information at issue is a separate and independent piece of work, the exception will not be applicable. Whether data can be considered to be unfinished depends on the circumstances. I consider that data which is part of routine monitoring, even if it has not been analysed or validated, may not generally be regarded as part of ongoing unfinished data collection.
43. In refusing the appellant’s request for the residential tracking and monitoring system data set, the Council contend that the data set is ‘unfinished’ due to the fact that the information within it changes on a frequent basis and, because it does not include other categories of information relating to housing capacity.
44. In the first instance, I am not satisfied that it has been established that the appellant’s request in fact concerns “material in the course of completion” or “unfinished documents or data ”. That the information changes frequently and that it does not contain additional categories of information which the Council deem relevant, does not make the data set in and of itself incomplete. While I accept that the data set changes frequently, by the very nature of its purpose, I do not consider the request to concern unfinished documents or data since the appellant’s request should be understood as one for information on the residential tracking and monitoring data at the date of his request.
45. The information in the dataset represents quantitative numerical data, figures which are of themselves complete. That this data is used to continuously review and update planning data against the Core Development Strategy does not make the information itself incomplete. Further, it is only documents, and not processes, that attract the protection of article 9(2)(c).
46. The Council submitted that the data-set if released, would be out of date ‘within days’ and that, as it does not contain additional categories of information (outlined in paragraph 19) it is concerned that if released in isolation of the other considerations persons may “incorrectly perceive the dataset as reflecting the remaining housing capacity of a settlement and mislead the public when published in the absence of the several caveats that must be considered when reviewing this data ”. That the Council contends that ‘several caveats’ are necessary when reviewing the data does not establish grounds for refusal under 9(2)(c) as the Council can freely identify and communicate these caveats, as they have done so to this Office, in releasing the information to the appellant.
47. For these reasons, I cannot find, based on the information before me, that article 9(2)(c) provides grounds for refusal of the appellant’s request for the residential tracking and monitoring system in open data format.
48. Next, I must consider the Council’s reliance on article 9(1)(c) in refusing release of the data set.
49. Article 9(1)(c) of the AIE Regulations allows a public authority to refuse a request for information “where the disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national and Community law to protect a legitimate economic interest ”. A number of elements are required in order to engage the exemption provided for in this article:
i. The information must be commercial or industrial in nature.
ii. The confidentiality of the information must be provided for by law.
iii. The confidentiality must protecting a legitimate economic interest.
iv. The confidentiality must be adversely affected by disclosure.
50. In order to show that the confidentiality of the information is protecting a legitimate economic interest,
51. In the first instance while the Council have asked that the OCEI “to refuse this request on Discretionary Refusal reason 9(1)(c) where the data is allowed to avail of confidentiality to protect a legitimate economic interest ” it has failed to identify how the information itself is commercial or industrial in nature, how the confidentiality of the information is protected by law, nor has it identified the legitimate economic interest concerned.
52. As the above limbs have not been met, the information cannot, in my view, invoke protection from article 9(1)(c) but I will comment nevertheless on the submissions that the Council did put forward in respect of this article.
53. To show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interest that the confidentiality is designed to protect.
54. The AIE Regulations do not specifically state that it is for a public authority to demonstrate that the refusal to make environmental information available is justified. However, Recital 16 of the AIE Directive provides that “the right to information means that disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases ”. Article 10(4) of the Regulations provides that the grounds for refusal of a request must be interpreted on a restrictive basis having regard to the public interest served by disclosure. I therefore consider that the scheme of the AIE Regulations and the Directive make it clear that there is a presumption in favour of the release of environmental information and that it is generally for the public authority seeking to withhold information to establish that it is entitled to do so having regard to the grounds for refusal set out in the Regulations.
55. My view in this regard is supported by the decision of the Court of Justice of the European Union in C-619/19 Land Baden-Württenberg v DR which makes it clear that “…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 ” and that “the risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical ”. Accordingly, when relying on article 9(1)(c) the Council must set out the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the economic interest identified. If no adverse effect on the economic interest identified is established, then article 9(1)(c) cannot be relied upon.
56. The Council have not identified the “legitimate economic interest ” that is relevant to the application of article 9(1)(c) in this context. I have considered the relevant information, and I also cannot identify any relevant legitimate economic interest at play here. The information does not relate to any specific third party or indeed to the interests of the Council itself.
57. In applying 9(1)(c) the Council contend that release of the data set information has a “potentially inflationary effects ” detailed further in paragraph 20 above. There are a number of observations to make here regarding the Council’s contentions. The first is that as outlined in paragraph 55 above, an argument on a ‘potential’ effect, is not in my view robust enough to meet the threshold of 9(1)(C).
58. Secondly, it is reasonable to contend that information which may be relevant to, or which may inform land speculation of a particular settlement, can be obtained publicly by means other than the data set at question, to include on the planning permission register and County Development Plan of the Council. Due to this, the release of the information sought cannot be found to create any adverse effect.
59. Accordingly, for the reasons outlined above, I do not find that the Council are justified in refusing access to the information pertaining to part 3 of the request, on the basis of 9(2)(c) and 9(1)(c) of the AIE Regulations.
Part 4) A copy of the review of the residential monitoring data that informed variation 1 of the County Development Plan (2021-2027) .
60. Article 7(5) of the AIE Regulations is the relevant provision to consider here, where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned.
61. This Office’s approach to dealing with this type of case is to assess whether adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied. What will be considered reasonable will vary from case to case.
62. It is the Council’s contention that no review report exists and that the reference to a ‘review’ in the Variation 1 document comprised of a review by staff of the Excel database of planning permissions granted during the Core Strategy timeframe of 2020-2027, with subsequent edits made to the document, to include the generation of a new Excel tab with additional information. The Council states that these documents have been shared with the appellant.
63. While the appellant contends that documentation relating to the review of the data must exist, citing the reference to same in variation 1, it would appear reasonable to me that a quantitative review of an Excel Sheet, with the view to identifying incorrect information with respect to planning permissions, revising and updating same, may have no accompanying documentation other than the revised Excel sheet itself.
64. It is my view that the term ‘review’ was used by the Council to describe a process of reviewing relevant data, rather than the creation of a report or additional documents. I am persuaded therefore, by the contention given by the Council that the documents already released to the appellant reflect the records with respect to the process of reviewing the data in question.
Part 6) The current housing capacity for all settlements in Meath in Tiers 1 to 5 inclusive
65. The Council have stated that it does not maintain a database of current housing capacity for settlements in Meath, rather that the capacity available in a particular settlement is constantly changing and is therefore assessed at each planning application stage, relying on article 9(2)(c) and 10(6) in its internal review response, contending that the information is in the course of completion. Further, that the Council are not obliged to create a new record for the AIE request when the information relevant to the request is published in the County Development Plan Two Year Progress Report (December 2023).
66. In submissions to this Office the Council further rely on article 9(1)(c) contending that the arguments made with respect to Part 3 of the request apply here, that release of the information would present an incomplete picture of housing capacity and could lead to land inflation.
67. It is my view that the contentions put forth by the Council are somewhat contradictory in nature. Firstly, that the Council does not maintain a record of this particular information is not in itself relevant in refusing the request as it states simultaneously that housing capacity is assessed at each planning stage. Essentially it would appear that while a live data set is not maintained, it is created and reviewed on a frequent basis to support the planning application process. In relying on 9(2)(c) the Council appear to be saying the dataset doesn’t exist but simultaneously that the data is constantly changing and therefore is incomplete and cannot be released. The reasoning I have outlined in paragraphs 34-46 above apply here, the dataset, which, as the Council have stated, is created and reviewed frequently, cannot be considered ‘in the course of completion’ or ‘unfinished’ as it is by its very nature and purpose, a data set which records new information as it is received, it could therefore never be considered ‘complete’ and this is not a justifiable reason, under the AIE Regulations, not to disclose it.
68. With respect to the Council’s assertion that it is ‘not obliged to create a new record’, article 7(1) of the Regulations obliges a public authority to “make available to [an] applicant any environmental information, the subject of the request, held by, or for, the public authority ”. “Environmental information held by a public authority ” is defined as “environmental information in the possession of a public authority that has been produced or received by that authority”. “Environmental information held for a public authority” is “environmental information that is physically held by a natural or legal person on behalf of that authority”. The definition of “environmental information” is set out in article 3(1) which states:
“_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)_”
69. The question to be addressed then is what is meant by “material form ”. In interpreting that term, regard must be had to the overall purpose of the Directive as well as to the wording of the Regulations, the Directive and the Aarhus Convention. As the CJEU in Fish Legal note, the Aarhus Guide can also be used for explanatory purposes although it is not of normative effect. The Aarhus Guide notes that:
“Environmental information may be in any material form, which specifically includes written, visual, aural and electronic forms. Thus paper documents, photographs, illustrations, video and audio recordings and computer files are all examples of the material forms that information can take. Any other material forms not mentioned, existing now or developed in the future, also fall under this definition […].
70. It is also important to distinguish between documents and information. The Convention guarantees access to information. The “material form ” language is not meant to restrict the definition of environmental information to finished products or other documentation as that may be formally understood. Information in raw and unprocessed form (sometimes referred to as “raw data”) is covered by the definition as well as documents.
71. By way of contrast, in Case T-264/04 WWF-EPO v Council of the European Union, the European Court of First Instance ruled that the “concept of document must be distinguished from that of information”. Thus, under the Transparency Regulation, the Community institutions were only obliged to disclose information held in the form of a formal document, as opposed to “…any information in written, visual, aural or electronic or any other material form” as defined in article 2, paragraph 3, of the Aarhus Convention (and article 2, paragraph 1(d), of the Aarhus Regulation). At the time the case was brought, the Aarhus Regulation had not yet been promulgated and today this unduly narrow interpretation of document/information would no longer apply” (see p 51).
72. The Aarhus Guide thus indicates that information does not need to have been completed or formalised in order to come within the definition. That would appear to me to lend support to the view that as the Council do hold the information requested regarding settlement capacity, even if it not ‘formalised’ in a standalone record but rather can be extracted from data held by it, it can be said that the information exists in material form.
73. The Council have confirmed, following further submissions, that the data regarding settlement capacity can be extracted from the data set at question in part 3 of the request. This does not appear to be a particularly onerous operation. Based on the above, I consider that the Council are obliged to extract this information in order to process the appellant’s request.
74. I consider the further reliance by the Council on article 9(1)(c), in which it contends, as with Part 3 of the request, that in releasing the information an incomplete picture of housing capacity would emerge and could lead to the inflation of land value, to be an insufficient application of the Regulation. As outlined in paragraphs 48-55, the test of 9(1)(c) has not been met here, as the adverse affect on the legitimate economic interest put forth by the Council is hypothesized rather than reasonably foreseeable, the data can already be gathered via the public realm and, the Council have failed to identify national or Community law which provides a basis for the confidentiality of the information sought.
75. Accordingly, for the reasons outlined above, I do not find that the Council are justified in refusing access to the information pertaining to part 6 of the request, on the basis of 9(2)(c) and 9(1)(c) of the AIE Regulations.
76. As I do not find that Council can rely on 9(2)(c) and 9(1)(c) it is not necessary for me to consider the implications of article 10 with respect to the information sought.
77. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Council’s decision with respect to part 3 and 6 of the appeal and direct the Council to release the information sought. With respect to part 4 of the appeal, I affirm the Council’s internal review decision.
78. 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