Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150539-V0C2J9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified, under article 9(2)(c) of the AIE Regulations, in refusing access to fourteen records that it identified as coming within the scope of the appellant’s request for access to information relating to onshore wind energy
28 November 2024
1. On 24 March 2024, the appellant made the following request to the Department:
“I request access to records supporting the policy change leading to the decision to target 9GW onshore wind energy, as detailed in the Climate Action Plan 2023. I quote “Dial up to 9 GW onshore wind, 8 GW solar, and at least 7 GW of offshore wind by 2030 (with 2 GW earmarked for green hydrogen production).” CLIMATE ACTION PLAN 2023
(i) I would expect such records to include but not limited to modelling analysis and related reports, carried out on Ireland’s land area and the power generating potential from wind energy projects on the areas. I am seeking access to the outcomes of the modelling under various setback and turbine height scenarios (for the State, as a whole, and by local authority area, if available);
(ii) Information relating to minimum turbine size and setback distances required to provide for what the department would consider commercially feasible wind energy development in Ireland.”
2. The appellant also submitted “[a]s the policy is now on record, all deliberations are complete, I anticipate the release of the information would serve to inform and provide clarity to the decision.”
3. On 19 April 2024, the Department applied an extension under article 7(2)(b) of the AIE Regulations.
4. On 24 May 2024, the Department issued its decision wherein it part-granted the appellant’s request. The Department listed 45 records that it considered relevant on the schedule. It stated that it was granting access to 27 records (records 1, 2, 3, 6, 8, 10, 12, 14, 15, 18, 19, 21, 24, 25, 27, 28, 30, 32, 34, 35, 36, 37, 39, 41, 43, 44, 45). The Department stated that it was refusing access to 14 records under article 9(2)(c) of the AIE Regulations (records 7, 9, 11, 17, 20, 22, 23, 26, 29, 31, 33, 38, 40, 42), and in respect of three of those records it indicated that another record was supplied (records 29, 31, 33) and in respect of 10 of those records it indicated that it was “refusing” access to a version of the information under article 7(3)(a)(i) of the AIE Regulation’s on the basis that another record was publicly available (records 9, 11, 17, 20, 22, 23, 26, 38, 40, 42). The Department also stated that it was “refusing” access to 4 records under article 7(3)(a)(i) of the AIE Regulations (records 4, 5, 13, and 16) on the basis that those records were also publicly available.
5. On 30 May 2024, the appellant sought an internal review of the Department’s decision “of all refusals.” She also commented: “I argue that the disclosure of modelling information would not adversely affect confidentiality of the proceedings as all deliberations have ceased. The modelling data is an expert report, factual information to which the public has an overriding interest, especially given the lengthy delay in the revision process of the wind energy development guidelines, now more than 10 years, 7,500 public submissions were made to the initial revisions. The wind energy development guidelines are intrinsically linked to the onshore wind energy target, the setback is determined by the noise emissions from the wind turbines.”
6. On 13 June 2024, the Department issued its internal review decision wherein it affirmed its original decision.
7. On 12 July 2024, the appellant submitted an appeal to this Office.
8. 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 the Department and the appellant as outlined above and to correspondence between my Office and both the Department 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)
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. 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.
11. As indicated, the Department stated that it was refusing access to 14 records under article 9(2)(c) of the AIE Regulations (records 7, 9, 11, 17, 20, 22, 23, 26, 29, 31, 33, 38, 40, 42) and, in respect of 10 of those records it indicated that it was “refusing” access to another version of the information under article 7(3)(a)(i) of the AIE Regulation’s on the basis that another record was publicly available (records 9, 11, 17, 20, 22, 23, 26, 38, 40, 42). The Department also stated that it was “refusing” access to 4 records under article 7(3)(a)(i) of the AIE Regulations (records 4, 5, 13, and 16) on the basis that those records were publicly available. For reference, the Department’s schedule at internal review decision included the details set out at Appendix 1.
12. 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. I note that the appellant did not specify a particular form of access desired and I also note that while the Department stated that it was “refusing” access under article 7(3)(a)(i) of the AIE Regulations to records 4, 5, 13, and 16, and other versions of information in records 9, 11, 17, 20, 22, 23, 26, 38, 40, 42, it did in fact provide the appellant with links to where those records were publicly available (see Appendix 1).
13. In her submissions to this Office, the appellant made no reference to the information that was provided by way of the links given on the schedule. She does not appear to dispute the manner in which the information that is publicly available (records 4, 6, 13, and 16) was provided to her under article 7(3) of the AIE Regulations, instead she appears to be seeking access to the information that was refused which is not already publicly available by way of the links provided.
14. In all the circumstances, I am satisfied that the scope of this review concerns whether the Department was justified in refusing access to records 7, 9, 11, 17, 20, 22, 23, 26, 29, 31, 33, 38, 40, 42, as identified on the schedules and provided to this Office, under article 9(2)(c) of the AIE Regulations.
Positions of the Parties
15. The Department, in its original and internal review decisions, stated that the records at issue should be refused under the AIE Regulations pursuant to article 9(2)(c) of the AIE Regulations which concerns material in the course of completion, or unfinished documents or data. The Department referred to articles 10(3) and 10(4) of the AIE Regulations and stated that it weighed the public interest served by disclosure against the interest served by refusal, and it determined that the public interest would not be served by disclosing the information concerned. On the schedules provided to the appellant the Department indicated that the records at issue were in draft and noted if the “final version” of the information is publicly available or had been supplied.
16. The Department’s submissions to this Office, included the following additional comments:
• “This AIE Request sought access to the records supporting the policy change leading to the decision to target 9 gigawatts (GW) of onshore wind energy by 2030, as set out in the Climate Action Plan 2023 (CAP23).”
• “To give some background information, CAP23, while the second Climate Action Plan Update, was the first Update to be prepared under the Climate Action and Low Carbon Development (Amendment) Act, 2021, and following the introduction, in 2022, of the economy-wide carbon budgets and sectoral emissions ceilings. The sectoral emissions ceilings set maximum limits on greenhouse gas emissions for each sector of the Irish economy to the end of this decade. The electricity sector has been set one of the smallest carbon budget allocations and the steepest decline (-75%) of all sectors.”
• “As evidenced by the Schedule of Records, the policy change to target 9 GW of onshore wind was not taken in isolation, but rather as part of an overall increase in ambition.”
• “Records 2, 4, and 5, as listed in the Schedule of Records, are directly related to this policy change.”
• The records at issue “were unfinished documents and/or already available as finished documents online. In such cases where the information is available online, …a link to the relevant document in the Schedule of Records [was provided].”
• The request “mentioned a number of details the requester expected would be included, specifically:
o ‘…modelling analysis and related reports, carried out on Ireland’s land area and the power generating potential from wind energy projects on the areas”
o ‘…the outcomes of the modelling under various setback and turbine height scenarios…’ and
o ‘Information relating to minimum turbine size and setback distances required…’
[The Department] was unable to find any records which meet the criteria above…nothing meeting the above criteria was prepared for the development of the Electricity Chapter of the CAP23.”
• The Department “emailed the requester in an attempt to ensure [its] interpretation of the request was accurate, as the broad interpretation [it] took resulted in the inclusion of a number of indirectly related and draft documents on the Schedule of Records, some of which, as previously mentioned, were not released as they are not incomplete and/or already publicly available. However, the requester did not wish to clarify the request any further.”
17. The appellant, in her submissions to this Office, made a number comments, including those set out below.
• The appellant reiterated that her request was for: “access to records supporting the policy change leading to the decision to target 9GW onshore wind energy, as detailed in the Climate Action Plan 2023. I quote “Dial up to 9 GW onshore wind, 8 GW solar, and at least 7 GW of offshore wind by 2030 (with 2 GW earmarked for green hydrogen production).” CLIMATE ACTION PLAN 2023
(i) I would expect such records to include but not limited to modelling analysis and related reports, carried out on Ireland’s land area and the power generating potential from wind energy projects on the areas. I am seeking access to the outcomes of the modelling under various setback and turbine height scenarios (for the State, as a whole, and by local authority area, if available);
(ii) Information relating to minimum turbine size and setback distances required to provide for what the department would consider commercially feasible wind energy development in Ireland.”
• The appellant also reiterated her contention that “[a]s the policy is now on record, all deliberations are complete, I anticipate the release of the information would serve to inform and provide clarity to the decision.”
• In referring to a previous case before this Office, Case CEI/15/0027 , which, I note, considered article 8(a)(iv) of the AIE Regulations, the appellant stated that she “[agreed] with the argument made by the appellant in that case that, ‘[i]t would be astonishing if the restricted public interest in non-disclosure could trump significant public interests in disclosure in this instance, such as:
(1) The public interest in individuals being able to exercise their rights under the AIE Regulations in order to enhance their understanding of the reasons for courses of actions taken by a public body, in this case the Department;
(2) The public interest in members of the public having a reassurance and knowledge that public bodies in their provision of a high level of service can disclose certain information, in the public interest, in relation to deliberations;
(3) The public interest in increasing the openness, transparency and accountability in the conduct of public business in particular in an area of such public importance;
(4) The public interest in ensuring that expert reports are accurate and reliable in an area where those developing such reports may have a pecuniary/conflicted interest through related activities;
(5) The public interest in involving the public at the earliest stage possible in environmental decision making - as required under Aarhus, EU and Irish law - to ensure that environmental decisions are taken under appropriate heightened scrutiny;
(6) The public interest in having the public fully informed, through access to information, in order to scrutinise the reasons put forward by politicians in delaying important policy decisions, in particular during the pre-election period of the parliamentary cycle, when heightened scrutiny of such decisions or delays is required by the electorate in any functioning democracy.’
• Also in referring to Case CEI/15/0027 , she noted the following comments of the Commissioner in that case:
“In my opinion, it is at least possible that disclosure of the withheld information would help the public to scrutinise the reasons put forward by politicians in delaying this important policy decision. I therefore accept that this public interest argument would favour disclosure now, before a decision is made.
[…]
…if disclosure were to lead to a submission being made to the Department which was of such import that it could not be ignored, such a submission would appear to be highly important and very much in the public interest. There is a strong public interest in making the decision as soon as possible, but there is also a strong public interest in getting it right.
For these reasons I am not persuaded that disclosure would be contrary to the public interest. As that is my conclusion, I must find that refusal to provide access to the withheld information is not justified on this ground.”
• The appellant stated that “… 8 years later and these important decisions remain delayed, without explanation. I hope to participate in an informed manner to the pending revised wind energy development guidelines.”
• The appellant also drew attention to the Inspector’s Report in ABP-315656-23, at page 37:
“I submit that perhaps it is time to give consideration over to stalling determinations on applications for wind farm development where no new guidance is in place. I submit that this would likely be the incentive to ensure an early delivery of new finalised Guidelines. Perhaps approvals for wind farm development could, thus, be determined to be premature pending the delivery of new finalised Guidelines. While there is much emphasis in public policy on promoting renewable energy and the benefits which would accrue from it, there appears to be little urgency in producing critically important up-to-date guidance which would allow for informed decision-making on the delivery of it in the right locations in a sustainable manner. I submit that this lack of up-to-date guidance is likely to continue to result in more court challenges as the Board and planning authorities are left isolated in seeking to deal with matters where the principal Guidelines are almost 20 years old, indeed archaic, when due regard is had to how wind energy development has significantly evolved in form and scale since then." (Appellant’s emphasis)
• The appellant stated “[t]he wind energy development guidelines are 20 years old (published in 2004). The government has delayed the revision of the wind energy development guidelines for 15 years. Planners are left without the tools to effectively assess the suitability of likely impact of wind energy developments and are forced to consider current policy targets, such as the 9GW onshore when deciding on planning applications and / or appeals.”
• The appellant stated “The public has the right to know and the right to scrutinise the models and the correspondence that led to the 9GW target, when it weights heavily towards the granting of planning permissions.”
• The appellant’s representative also made submissions to this Office, which included some similar comments to those set out above.
18. The Department refused access to the 14 records at issue in this case, records 7, 9, 11, 17, 20, 22, 23, 26, 29, 31, 33, 38, 40, 42, under article 9(2)(c) of the AIE Regulations.
19. 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.
20. Article 9(2)(c) 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. 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.
21. 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. In this regard, the High Court in Right to Know v An Taoiseach [2018] IEHC 372 noted, in particular, that “in light of the adjudicatory processes in which a decision-maker is required to engage pursuant to Articles 10(3), (4) and (5) and 11(4) of the AIE Regulations, the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal” (paragraph 106). The Court held that in an absence of any indicator in the review decision that the balancing exercise mandated by articles 10(3) and (4) had been carried out, suggested that no balancing exercise had, in fact, been undertaken and that the same was true in respect of the mandatory obligation set out in article 10(5) of the AIE Regulations (paragraph 87).
22. When relying on article 9(2)(c) of the AIE Regulations, the public authority should explain why the information at issue falls within the scope of the exception, outlining which limb(s) of the exception is being relied upon. It is then for the public authority to weigh the public interest served by disclosure against the interest served by the refusal as is required by articles 10(3) and 10(4). I note the comments of the CJEU in Case C-619/19, Land Baden-Württemberg v DR (Land Baden-Württemberg):
“…[A] public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.” (paragraph 69)
23. 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.
24. 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).
25. In Roheline Kogukond MTÜ, which dealt with the question as to whether data on the location of permanent sample plots for a statistical forest inventory were to be classified as material in the course of completion or unfinished documents or data, the Court referred to the decision in Land BadenWürttemberg. In considering the material in the course of completion and unfinished documents or data exception, it noted at paragraphs 37 to 41:
“The referring court asks, in the first place, whether disclosure of the coordinates for the location of the permanent sample plots used for the periodic collection of data with a view to drawing up a national statistical forest inventory may be refused on the basis of point (d) of the first subparagraph of Article 4(1) of Directive 2003/4, which allows Member States to refuse a request for environmental information relating to documents in the course of completion or to unfinished documents or data.
Although the concepts of ‘material in the course of completion’ and ‘unfinished documents or data’ are not defined by [the AIE Directive], it is apparent from the explanations relating to Article 4 of the Proposal for a Directive of the European Parliament and of the Council on public access to environmental information presented by the Commission on 29 June 2000 (COM(2000) 402 final) (OJ 2000 C 337 E, p. 156) that the purpose of that exception is to meet the need of the public authorities to have a protected space in which to pursue internal considerations and debates (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C-619/19, EU:C:2021:35, paragraph 44). The Court has also held that, unlike the ground for refusing access provided for in point (e) of the first subparagraph of Article 4(1) of Directive 2003/4 relating to internal communications, that provided for in point (d) of the first subparagraph of Article 4(1) of the directive relates to the preparation or drafting of documents and is therefore of a temporary nature (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C-619/19, EU:C:2021:35, paragraph 56).
That interpretation is corroborated by that of Article 4(3)(c) of the Aarhus Convention, which provides for an exception to the right of access to environmental information in relation to documents in the course of completion, and by the explanations contained in the document entitled The Aarhus Convention: An implementation guide (second edition, 2014) published by the United Nations Economic Commission for Europe, which, although it has no normative value, is one of the elements that may guide the interpretation of that convention (see, to that effect, judgment of 16 February 2012, Solvay and Others, C-182/10, EU:C:2012:82, paragraph 27).
The location coordinates of permanent sample plots used for the collection of data for drawing up a national statistical forest inventory cannot be regarded as documents in the course of completion or as unfinished documents or data when they relate to the state of the forest on a given date.
The fact that those sample plots are used to measure developments in the state of forest resources and soils in successive statistical forest inventories or other reports does not call that conclusion into question. To interpret it otherwise would be tantamount to allowing the exception provided for in point (d) of the first subparagraph of Article 4(1) of Directive 2003/4 to be applied without any time limit, even though that exception is, as has been pointed out above, of a temporary nature.”
26. As indicated above, the first question to be addressed is whether or not article 9(2)(c) of the AIE Regulations is engaged on the basis that the information at issue “concerns material in the course of completion, or unfinished documents or data” (i.e. which limb(s) of the exemption is being relied upon).
27. It is this Office’s view that “material in the course of completion” relates to the process of preparing information/documents. The Aarhus Guide states that “the expression ‘in the course of completion’ relates to the process of preparation of the information or the document and not to any decision-making process for the purpose of which the given information or document has been prepared.” However, this Office considers that the factual circumstance of each case is relevant to assess and considers that this exemption may apply in two ways, firstly to information that is itself in the course of completion or unfinished, but secondly to information that while not itself material in the course of completion or unfinished, sufficiently concerns the material in the course of completion or unfinished information.
28. The Aarhus Guide also includes the following commentary:
A request for access to raw environmental data cannot be refused on the grounds that it is “material in the course of completion” to be made publicly available only after processing or correction factors have been applied. In its findings on ACCC/C/2010/53 (United Kingdom), the Committee considered whether raw air pollution data collected from a monitoring station and not yet subject to data correction could be exempted from disclosure as “material in the course of completion”. The Committee considered that the raw data was itself environmental information within the meaning of article 2, paragraph 3 (a), of the Convention. […]
Similarly, the mere status of something as a draft alone does not automatically bring it under the exception. 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 time frame. Other articles of the Convention also give some guidance as to how Parties might interpret “in the course of completion”. Articles 6, 7 and 8 concerning public participation require certain draft documents to be accessible for public review. Thus, drafts of documents such as permits, EIAs, policies, programmes, plans and executive regulations that are open for comment under the Convention would not be “materials in the course of completion” under this exception.
29. I consider that the purpose of this exemption is to give public authorities time and private space to draft and amend documents that they are preparing before they are finalised. The European Commission acknowledged this interest in its First Proposal for the AIE Directive, as did the Court of Justice of the European Union in Case C 619/19 Land Baden-Württemberg v. D.R. at paragraph 44. I emphasise that this interest is in maintaining the confidentiality of draft documents while they are still being actively worked on, rather than in maintaining the confidentiality of completed documents pending the conclusion of decision-making process.
30. In Roheline Kogukond MTÜ, the information at issue concerned location coordinates of permanent sample plots used to draw up the Estonian statistical forest inventory. The CJEU noted that “the permanent sample plots, the location coordinates of which are requested…, are sampling units used for the periodic collection of data with a view to drawing up, by extrapolation, statistical reports on forest stands in Estonia and on land use and development. Those sample plots are located on the sides of 64- hectare square plots, chosen for their representative nature of the state of the forest and soils.” The CJEU held that “[t]he location coordinates of permanent sample plots used for the collection of data for drawing up a national statistical forest inventory cannot be regarded as documents in the course of completion or as unfinished documents or data when they relate to the state of the forest on a given date. It noted that “the fact that those sample plots are used to measure developments in the state of forest resources and soils in successive statistical forest inventories or other reports does not call that conclusion into question. To interpret it otherwise would be tantamount to allowing the exception…to be applied without any time limit, even though that exception is…of a temporary nature.”
31. Advocate General Kokott in her Opinion commented “the data on the location of the permanent sample plots of the statistical forest inventory are already available in full and therefore do not fall into any of the three categories [provided for in the exception]” (paragraph 60). She further stated, at paragraphs 61 to 64:
“The fact that the data on the location of the permanent sample plots of the statistical forest inventory are to be used to regularly produce further reports on the state of the forests does not change that. Those reports and the information collected therein may at certain times fall under the abovementioned categories of cases and thus within the exception pursuant to Article 4(1)(d) of the Environmental Information Directive. However, that does not mean that the location data may be withheld. While they are explicitly or implicitly part of the reports, they are significant in their own right regardless of the individual reports, which may not yet have been completed. That is also demonstrated by the fact that those location data not only form the basis of reports that are still being processed, but – as the Environment Agency acknowledges – also form the basis of reports that have already been completed in the past.
The above considerations on the possibly limited interest of the public in the disclosure of the location data do not change the conclusion. They do not change the fact that the location data are part of operations that have already been completed.
It would be contrary to the temporary nature of that exemption to apply it indefinitely to certain data by reason of the repeated use of that data, even though the data has already been definitively established. Rather, the exception is intended to apply only during a specific period, that is to say during the processing of materials, documents and data. The idea of a time-limited application of that exception is confirmed by the second subparagraph of Article 4(1) of the Environmental Information Directive, according to which a refusal to disclose material that is in the process of being completed must already indicate when the material is expected to be complete.
Therefore, data on the location of the permanent sample plots of a regularly repeated statistical forest inventory do not constitute material in the process of being completed, nor are they documents which have not yet been completed or data which have not yet been processed for the purposes of Article 4(1)(d) of the Environmental Information Directive.”
32. I wish to reiterate that the particular factual scenario in each individual case must be considered and, in addition to the specific information at issue, is a key factor in assessing the application of article 9(2)(c) of the AIE Regulations. Cases are often distinguished on their facts.
33. As stated above, I am satisfied that article 9(2)(c) of the AIE Regulations can be relied upon in circumstances both where the information itself is, for example, “material in the course of completion” or “unfinished data”, and where the information concerns “material in the course of completion” or “unfinished data”.
34. I consider that “material in the course of completion” refers to the process of preparing “material” that is itself being actively worked on (just because something is labelled “draft” does not necessarily mean it is “in the course of completion”). However, while information no longer being actively worked on may not itself be “material in the course of completion” it may concern material in the course of completion. In assessing whether the information at issue concerns “material in the course of completion”, I am of the view that it is necessary to identify material that is actively being worked upon, be able to explain why, and how, the information at issue concerns that material, and consider whether the information at issue is a separate and independent piece of work to that material – if the information at issue is a separate and independent piece of work, the exception will not be applicable. I also consider that the material that is actively being worked upon must have a physical existence (it cannot be something that does not have a physical existence (e.g. a project, exercise or process, although it can be part of same). For example, an overarching project, even if it is not complete, cannot be considered to be “material in the course of completion”, however individual documents that form part of the project might be if they have not yet been completed.
35. I consider that “unfinished documents” are documents that a public authority is still working on (just because something is labelled “draft” does not necessarily mean it is “unfinished”) and “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 documents” or “unfinished data”, I am of the view that it is necessary to identify the document being worked on / data that is actively being collected, be able to explain why, and how, the information at issue concerns that document/data, and consider whether the information at issue is a separate and independent piece of work to that document/data – if the information at issue is a separate and independent piece of work, the exception will not be applicable. Whether documents/data can be considered to be unfinished depends on the circumstances. I consider that data which is part of routine monitoring or collected raw data being used as part of ongoing research or policy development, even if it has not been analysed or validated, may not generally be regarded as part of ongoing unfinished data collection.
36. As highlighted 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.
37. In this case, the Department appears to have merely referred to article 9(2)(c) of the AIE Regulations in seeking to refuse access to the records at issue in full. While the Department indicated on the schedule where it considered the record to contain “draft” information, it provided no further explanation regarding its application of article 9(2)(c) of the AIE Regulations to the particular information at issue, as is required. Furthermore, regarding articles 10(3) and 10(4) of the AIE Regulations, the Department simply mentioned those articles and stated that it had weighed the public interest served by disclosure against the interest served by refusal, determining that the public interest would not be served by disclosing the information. The Department gave no indication of any factors in favour of or against release and provided no explanation of any balancing exercise carried out. It also gave no consideration of whether partial disclosure of any of the records refused was possible in line with article 10(5) of the AIE Regulations. Finally, the Department did not address article 10(6) of the AIE Regulations.
38. In the circumstances, while it may be the case that article 9(2)(c) of the AIE Regulations, subject to article 10, is applicable in respect of certain information, I am not satisfied that the Department properly considered the information at issue and, in essence, adopted a “blanket approach” to its refusal under article 9(2)(c) of the AIE Regulations, regardless of the specific nature or content of the records and without also giving adequate consideration of article 10 of the AIE Regulations. It is clear that the Department did not provide adequate reasons for refusal of the records at issue.
39. Accordingly, at this stage, I consider that the most appropriate course of action to take in this case is to annul the Department’s decision under article 9(2)(c) of the AIE Regulations and to direct it to undertake a fresh internal review decision-making process in respect of the records at issue.
40. In reaching this conclusion, while I appreciate that this causes delay for the appellant, including in light of the presence of third party information in the withheld information, I do not believe that it is appropriate for this Office to direct release of the information at this point. Furthermore, this Office has a significant backlog of appeals and I consider that it is not the best use of resources to carry out the task of reviewing information which does not appear to have been done by public authorities in the first instance. I understand that this may be frustrating for the appellant but I consider that the AIE regime is best served by remittal in this case. Should the Department not correctly engage with its obligations under the AIE regulations when carrying out a new internal review decision-making process, I may have to consider simply ordering release of the information.
41. In re-considering the request, should the Department wish to rely on article 9(2)(c) of the AIE Regulations (or any other exemption provision provided for in article 8/9 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). The Department should note that simply because a document is labelled “draft”, it does not automatically come within the exemption provided for in article 9(2)(c). The Department should also in particular note its obligation in article 10(4) to interpret the exemptions on a restrictive basis having regard to the public interest served by disclosure.
42. Finally, given comments made by the Department in its submissions to this Office regarding information it was unable to locate, it may also be relevant for the Department to set out the searches undertaken to identify relevant information to the appellant and, if any information is being refused under article 7(5) of the AIE Regulations on the basis that it is not “held by or for” the Department, to set out the reasons for reaching that conclusion.
43. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Department’s decision to refuse access to the fourteen records at issue under article 9(2)(c) of the AIE Regulations. I direct the Department to carry out a fresh internal review decision-making process in respect of those records.
44. 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