Cinneadh
Ms X and DAA Public Limited Company
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-148125-H8H6K9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-148125-H8H6K9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Records 22, 23 & 28 are “environmental information” within the meaning of the AIE Regulations; and, if so, whether DAA was justified in refusing release of twenty-two (22) records, i.e. Records 01, 02, 04, 05, 06, 07, 11, 12, 16, 17, 18, 19, 20, 21, 21.1, 21.2, 22, 23, 25, 26, 27, & 28, under article 9(1)(b) of the AIE Regulations.
15 August 2024
1. This review relates to a request for information submitted to DAA by the appellant in respect of information concerning PFAS/PFOS contamination at Dublin Airport.
2. PFAS is an abbreviation for per- and poly-fluoroalkylated substances which are a large class of synthetic chemicals. Further information on PFAS (and PFOS) substances can be found on the Environmental Protection Agency (EPA) public website: https://www.epa.ie/our-services/monitoring--assessment/waste/chemicals/pfas/
3. On 8 January 2024, the appellant submitted the following request for information:
“a. Any correspondence, including emails and attachments, between [a commercial company] and DAA that relates to PFAS/PFOS contamination at Dublin Airport.
b. Any meeting agenda, minutes and reports discussed at meetings held between DAA and [the commercial company] that relates to PFAS/PFOS contamination. I would like any records that date from 1 January 2022 to present, please.”
4. DAA acknowledged the appellant’s AIE request on 12 January 2024. Later, on 7 February 2024, DAA notified the appellant that “due to the complexity of [the] request”, it would not be possible to make a decision on same within the required one-month timeframe and invoked an extension up to 7 March 2024 under article 7(2)(b) of the AIE Regulations.
5. DAA provided an original decision on 7 March 2024, refusing access to records identified in response to the appellant’s request under article 9(1)(b) of the AIE Regulations.
6. On 7 March 2024, the appellant requested an internal review of DAA’s decision, as follows:
“I am appealing this refusal on the grounds that adequate weight has not been given to the public interest. This relates to public health, environment, and potentially public money, so is clearly in the public interest to release.”
7. DAA issued its internal review decision on 5 April 2024 which affirmed the original decision, adding only that “the public interest that might be served by disclosing the [r]ecords is far outweighed by the very real risk that disclosure will adversely affect the course of justice”.
8. The appellant submitted an appeal to this Office on 11 April 2024. On 13 May 2024, DAA was provided with a copy of the appellant’s statement of appeal and was requested to forward, within six (6) weeks or by 24 June 2024, both the subject matter information/ records and a final submission on any exceptions that it wished to rely upon and to explain its decision(s) on the specific information/records at issue.
9. I am directed by the Commissioner for Environmental Information to carry out a review of this appeal. I have now completed this review under article 12(5) of the Regulations. In so doing, I have had regard to all submissions made by DAA and I have reviewed the records at issue. I have also taken account of submissions from a relevant third party in this matter. In addition, I have had regard to:
10. A submission from DAA was received by this Office on 24 June 2024, along with a copy of thirty (30) records and a “schedule listing all documents gathered for this request and [which] includes details such as date, title, description, whether the record has been granted or refused, and the relevant provisions of the Regulations on which any refusal was based”. DAA, in its cover submission, reaffirmed its original position and provided further detail as to the basis for its refusal on the grounds of article 9(1)(b) of the AIE Regulations, as follows:
“The documents gathered for this request were refused under Article 9(1)(b) of the AIE Regulations, in circumstances where the disclosure of same would adversely affect the course of justice. [DAA] issued legal proceedings in the High Court of Ireland against a number of parties. While the subject matter of those legal proceedings is confidential and not yet in the public domain, we can confirm that the records are directly relevant to the proceedings and will be relied upon by [DAA] in such proceedings. As a result, [DAA] is extremely concerned that the disclosure of those Records to third parties could seriously prejudice [DAA]’s position in, and impair the progress of, the proceedings. In this regard, it is [DAA]’s strong view that the public interest that might be served by disclosing the Records is far outweighed by the very real risk that disclosure will adversely affect the course of justice.”
11. The schedule itself went on to list twenty-five (25) records as refused under article 9(1)(b) of the AIE Regulations. In addition, two (2) records (Records 01 & 24) were listed in the ‘Decision’ column as “Not [in] Scope” and a further three (3) records (Records 22, 23 & 28) were listed as “Not environmental information” (presumably a reference to article 3(1) of the AIE Regulations).
12. The investigator assigned to this appeal wrote to DAA on 27 June 2024 seeking clarification as to why Records 01 & 24 should be considered out of scope. The investigator also highlighted her view that DAA’s statement on Records 22, 23 & 28 did not provide a sufficient level of analysis to ground a decision that the requested information is not “environmental information” within the meaning of the definition provided in article 3(1) of the AIE Regulations, and invited further submissions in this regard.
13. The investigator also sought further information from DAA on its reliance on article 9(1)(b) of the AIE Regulation, including the precise nature of the legal proceedings, enquiry, or investigation referred to by it and asked DAA to explain why it considered that, on balance, the public interest would not be better served by the disclosure of the records. The investigator also asked DAA to consider whether there was any material contained in the information requested in respect of which partial disclosure could be made, in accordance with article 10(5) of the Regulations (i.e. information which could be separated from the information to which the exception in article 9(1)(b) might apply).
14. In a submission to this Office dated 11 July 2024, DAA re-iterated its position that the
information refused under article 9(1)(b) should not be disclosed; however, it provided no further information to indicate what legal proceeding or formal inquiry was involved or how the information concerned could prejudice same. In respect of public interest considerations, DAA stated that, “While [DAA] acknowledge[s] the importance of transparency and public interest, [DAA] has already published extensive monitoring reports that address the PFAS issue, thereby satisfying the public interest in this matter. These comprehensive reports provide detailed information about contaminant monitoring and future recommendations to address the issue”. It added that, “[DAA] is open to discussing specific redactions that might allow for the part-release of certain information”.
15. In relation to Records 01 & 24, DAA maintained its position that these records are out of scope, stating that they “pre-date the period to which the request pertains”. In relation to Records 22, 23, and 28, DAA also maintained its position that these records do not constitute “environmental information” as defined under article 3(1) of the AIE Regulations, stating that they “simply contain information about staff changes and arranging future meetings”.
16. In relation to Records 02, 03, 08, 09, 10, 13, 14 and 15, DAA submitted that these records are publicly available as part of the ‘2021-2023 Environmental Monitoring Report’, accessible at https://www.dublinairport.com/corporate/environmental-social-governance/sustainability . (It may be noted that this report is a 1,372-page document dated 8 April 2024. An abstract explains that “Fehily Timoney (FT) was retained by [DAA] to prepare an environmental monitoring report for the airport site. This report has been produced following the completion of environmental monitoring within the curtilage of the airport and its environs”.)
17. In relation to Records 11 and 12, DAA submitted that “these records are superseded versions of records 13 and 14 that are publicly available”.
18. On 18 July 2024, the investigator wrote again to DAA, seeking clarity on its position in relation to Records 02, 03, 08, 09, 10, 11, 12, 13, 14 and 15. The investigator asked DAA to identify precisely where these records were publicly available (including the relevant page numbers of any wider published reports); to confirm whether there were any variations between the relevant records and any publicly available versions of the reports at issue; and lastly, to confirm whether DAA was seeking to rely upon any article of the AIE Regulations to continue to withhold the relevant records. The investigator also requested final submissions as to why the remaining information at issue should be refused under article 9(1)(b) of the AIE Regulations.
19. In a response dated 25 July 2024, DAA submitted that records publicly available as part of the ‘2021-2023 Environmental Monitoring Report’ (linked above), could be located at the following pages of this report:
20. DAA also submitted that, “the only variation between records 02, 11 and 12 and 08, 13 and 14 is the third-party name that has been omitted and changed to “offsite” in records 08, 13 and 14”. It stated, “Other than that, the records are identical in content”. DAA also confirmed that it was not relying on any article of the AIE Regulations to withhold these records as they are already publicly available.
21. DAA submitted that the remaining information continued to be refused under article 9(1)(b) at this time, stating that, “While the subject matter of [the legal proceedings concerned] is confidential and not yet in the public domain, we can confirm that the records are directly relevant to the proceedings and will be relied upon by [DAA] in such proceedings”. In respect of partial release of information, DAA submitted, “after careful review, [DAA] has determined that [it] will not be proceeding with any redactions. [DAA’s] position is that the records in question, as a whole, fall under the grounds for refusal as specified in [a]rticle 9(1)(b)”.
22. During the course of this appeal, this Office formed the view that the interests of a third party may be affected by any proposed disclosure of the environmental information concerned. On 8 July 2024, the commercial company referenced in the AIE request was notified of the appeal at hand and given an opportunity to make submissions on potential disclosure of the information at issue.
23. In a submission received by this Office on 29 July 2024, the third party noted that, “[it] was not a party to this AIE request and was not a party to the communications that have been exchanged to date between (i) DAA and [the appellant] or (ii) DAA and the OCEI”. The third party acknowledged the role of the Commissioner for Environmental Information under the AIE Regulations and submitted that, “Having reviewed the relevant documentation and taking into account the OCEI’s position, [it] does not propose to object to the provision of this documentation to [the appellant], should the Commissioner form the view that it should be provided by DAA to [the appellant]”.
24. Articles 7(4) and 11(4) of the AIE Regulations make it clear that a public authority is required to provide reasoning for its decisions at original decision and internal review stage. The sole reason provided to the appellant in this case stated that the request was being refused under article 9(1)(b) of the AIE Regulations. No adequate explanation as to how article 9(1)(b) applied in the circumstances of the case was included in the decisions. No schedule of records or description of the information it holds was provided by DAA when notifying the requestor of its decision and only brief reference was made to the public interest balancing test. The judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 372 makes it clear that “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”.
25. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and the Directive but is also recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed, whether at internal review stage or through an appeal to this Office.
26. The submission provided by DAA to this Office on 24 June 2024 was accompanied by a schedule of records and a copy of thirty (30) individual records which were identified as relating to the request. Only on examination of the schedule did it become apparent that, in addition to refusal under article 9(1)(b) of the AIE Regulations, two (2) records were being refused as outside of scope of the request, and a further three (3) records were being refused as not coming within the definition of “environmental information”. These additional grounds for refusal were not mentioned to the appellant by DAA at original decision or internal review stage and it is unsatisfactory for public authorities to seek to add additional grounds of refusal at appeal stage. The fundamental purpose of the duty to provide reasons, as outlined above, is, in my view, significantly undermined if a public authority seeks to invoke additional reasons for refusal throughout the course of an appeal to this Office.
Records 02, 03, 08, 09, 10, 11, 12, 13, 14 & 15
27. As outlined above, in correspondence to this Office dated 25 July 2024, DAA proffered page numbers where it had indicated that the above records were publicly available as part of DAA’s ‘2021-2023 Environmental Monitoring Report’.
28. I have considered DAA’s submission and I am in a position to validate the above statement with certain clarifications, regarding precise page numbers, for the following records:
29. However, in respect of the following records, I believe that there are a number of issues which require highlighting as follows:
30. DAA submitted that, “the only variation between records 02, 11 and 12 and 08, 13 and 14 is the third-party name that has been omitted and changed to “offsite” in records 08, 13 and 14”. Whilst this may indeed be one substantive difference, it is not true to say that these records are otherwise identical in content.
31. I note that DAA has confirmed that it is no longer relying on any article of the AIE Regulations to withhold the above ten (10) records on the basis that they are publicly available. I acknowledge that seven (7) of these records, i.e. Records 03, 08, 09, 10, 13, 14 & 15 are indeed publicly available. As such, I expect DAA to release this information to the appellant.
32. However, there is no evidence before me to confirm that Records 02, 11 & 12 are publicly available. Therefore, I will proceed to consider the exception originally applied by DAA as grounds to refuse these records, i.e. article 9(1)(b) of the AIE Regulations.
Records 01 & 24
33. DAA has refused access to this information on the basis that these records are out of scope, explaining that “they pre-date the period to which the request pertains”.
34. In respect of Record 01, DAA submitted that the, “Report was generated in 2022 upon request, however the samples were collected and analysed in November of 2021. Therefore, the records for this report were created in 2021”. The description of the record and reasoning provided by DAA, in itself, appears correct. However, based on all the information before me, I have observed that this particular analysis report also appears to have been included in a communication between DAA and the commercial company within the timeframe of the appellant’s request (Record 6 refers). Therefore, I find that Record 1 does fall within scope of the request and furthermore, that its release can reasonably fall to be considered on the same basis as Record 6, where DAA has sought refusal under article 9(1)(b) of the AIE Regulations.
35. In respect of Record 24, DAA submitted that, “The email is from 2021, and was forwarded internally in 2022 for record keeping, before staff departed [DAA]”. The AIE request concerns correspondence between DAA and the commercial company during a specified period. On this basis, and having reviewed the record concerned, I am satisfied that DAA’s interpretation of Record 24 is correct that it may be considered outside of scope of this appeal.
Records 04, 05, 06, 07, 16, 17, 18, 19, 20, 21, 21.1, 21.2, 22, 23, 25, 26, & 27
36. DAA has refused access to this information under article 9(1)(b) of the AIE Regulations.
Records 22, 23 & 28
37. Notwithstanding that DAA has cited article 9(1)(b) as grounds to refuse access to Record 22 & 23, it has also argued that this information is not “environmental information” and as such, placing it outside of scope. DAA has similarly refused access to Record 28 on the basis that it is not “environmental information” as defined under article 3(1) of the AIE Regulations.
38. In respect of Records 22, 23 & 28, I have observed that the content of same appears to have been included in other records which have been refused for release under article 9(1)(b) (Records 16/19 & 20 refer). Therefore, if I find that Records 22, 23 & 28 are “environmental information”, I find that their release can reasonably fall to be considered as part of the records where DAA has sought refusal under article 9(1)(b) of the AIE Regulations.
39. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review DAA’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, the Commissioner will require the public authority to make available environmental information to the appellant.
40. As outlined above, DAA initially relied solely on article 9(1)(b) of the AIE Regulations in refusing access to the information at issue. During the course of this review, it also sought to rely on article 3(1) of the AIE Regulations in respect of some records. A review by the Commissioner is considered to be de novo and my jurisdiction allows me to review the matter in full. Accordingly, I consider it appropriate to examine the applicability of article 3(1) in respect of Records 22, 23 & 28, notwithstanding the fact that the provision was not originally relied upon by DAA in its internal review decision.
41. This review is therefore concerned with:
(a) whether Records 22, 23 & 28 contain “environmental information” within the meaning of the AIE Regulations; and, if so,
(b) whether DAA was justified in refusing release of twenty-two (22) records, that is Records 01, 02, 04, 05, 06, 07, 11, 12, 16, 17, 18, 19, 20, 21, 21.1, 21.2, 22, 23, 25, 26, 27, & 28, under articles 9(1)(b) of the AIE Regulations.
42. It should be noted that, while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the content of the record(s) and the extent to which I can describe certain matters in my analysis is limited.
Whether Records 22, 23 & 28 contain “environmental information”
43. The definition of “environmental information” is set out in article 3 of the AIE Regulations. The right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of article 3(1). According to national and EU case law on the definition of “environmental information”, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU.
44. In his decision in RTÉ, Barrett J expressly endorses the approach set out in Henney to determine the “information on” element of the definition (see RTÉ, paragraph 52). This involves identifying the relevant element of the definition to which the information in question relates. In this case, the information requested relates to PFAS/PFOS contamination at Dublin Airport. As noted above, DAA contends that certain records identified in response to the request are not “environmental information”.
45. Paragraph (b) of the definition states that “environmental information” means “any information in written, visual, aural, electronic or any other material form on – … (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”. In considering the subject of this appeal, PFAS/PFOS contamination is clearly captured by the terms “emissions, discharges and other releases into the environment” contained in this part of the definition.
46. As noted by DAA in material published on its website, PFAS/PFOS substances are an emerging pollutant of concern, which have been in use since the 1950s in a range of products and industries. They can be found in many everyday products – outdoor clothing and equipment, textiles, paints, food packaging, photographic coatings, non-stick coatings on cookware as well as fire-fighting foam. PFAS are long lasting compounds and have now been found in water and soil, in almost every country in the world. They can have harmful effects on human and animal health. They are often referred to as “forever chemicals”. In April 2024, DAA published material (linked above at point 16.) relating to a two-year risk assessment of PFAS at Dublin Airport.
47. The stated basis for DAA’s conclusion that the information in Records 22, 23 & 28 is not “environmental information” is that they “simply contain information about staff changes and arranging future meetings”. However, as previously noted, information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond, paragraph 58, see also ESB, paragraph 43). Given that the subject matter of these meetings is clearly the same as the subject of this appeal, i.e., PFAS/PFOS contamination at Dublin Airport, I consider that the records clearly do represent information “on” the factors within the meaning of paragraph (b) of the definition of “environmental information” as set out in article 3(1) of the AIE Regulations.
Whether the information is exempt from release under article 9(1)(b) of the AIE Regulations
48. DAA contends that the information contained Records 01, 02, 04, 05, 06, 07, 11, 12, 16, 17, 18, 19, 20, 21, 21.1, 21.2, 22, 23, 25, 26, 27, & 28, may be refused under article 9(1)(b) of the AIE Regulations. This provision states:
“9. (1) A public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect—…. (b) the course of justice (including criminal inquiries and disciplinary inquiries).”
49. Article 9(1)(b) of the AIE Regulations transposes Article 4(2)(c) of the AIE Directive, which in turn is based on Article 4(4)(c) of the Aarhus Convention. Article 4(2)(c) of the AIE Directive provides that Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature.
50. The Minister’s Guidance, in considering “The Course of Justice” states:
“Environmental information relating to anything which is the subject matter of any legal proceedings, or of any formal inquiry (whether past or present), or any preliminary investigation, may be refused. Examples would include information in connection with intended prosecution of offences by the Director of Public Prosecutions or by local or other public authorities; information affecting enforcement proceedings; material arising from public or disciplinary inquiries; and information relating to preliminary or other proceedings instituted by the European Commission” (paragraph 12.3).
51. Article 9(1)(b) of the AIE Regulations must be read alongside article 10, which provides for certain limitations on the ability of a public authority to refuse environmental information. Article 10(3) clearly provides that the request must be considered on an individual basis with the public interest served by disclosure weighed against the public interest served by refusal. Also, article 10(5) 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.
52. The wording of article 9(1)(b) makes it clear that there must be some adverse effect on the course of justice in order for the exception to apply. Accordingly, when relying on article 9(1)(b) the relevant party must set out the reasons why it considers that the disclosure of the information at issue could specifically and actually undermine the course of justice as set out by the CJEU at paragraph 69 of Land Baden-Wurttemberg v DR, Case C-619/19. The risk of the course of justice being undermined must be reasonably foreseeable and not purely hypothetical. Where grounds for refusal are identified, the information should be examined to determine whether certain information may be released without adversely affecting the course of justice.
Record 01
53. Record 01 is a Certificate of Analysis Report (No. 673041) concerning samples dated 15 November 2021. As outlined above, this record also appears to have been contained in Record 06. Furthermore, I have observed that this record is publicly available as part of DAA’s ‘2021-2023 Environmental Monitoring Report’, at page 199.
Record 02
54. Record 02 is a Certificate of Analysis Report (No. 670129) concerning samples dated 16 November 2022. It can also be noted that Record 02, as provided to this Office, is redacted in parts. I can confirm that these redactions do appear to be contained in the version forwarded by DAA to the commercial company (Record 5 refers), and therefore, I wish to note that it is only this redacted version that falls within scope of this review.
Record 04
55. Record 04 is an email from DAA to the commercial company on 15 November 2022 (@13:40), containing one (1) attachment. The attachment is a Certificate of Analysis Report (No. 651102) concerning samples dated 3 June 2022. I have observed that Report No. 651102 is “superseded in full” by Report No. 673033. Report No. 673033 is Record 10, which is no longer refused by DAA and it is also publicly available as part of DAA’s ‘2021-2023 Environmental Monitoring Report’, at page 347.
Record 05
56. Record 05 is an email from DAA to the commercial company on 16 November 2023 (@16:00), summarising results contained in the following four (4) included attachments:
Record 06
57. Record 06 is an email from DAA to the commercial company on 18 December 2023 (@16:01), containing link to environmental monitoring results for the following eight (8) dates – 15 November 2021, 10 February 2022, 15 March 2022, 03 June 2022, 16 November 2022, 13 February 2023, 29 May 2023, and 15 August 2023. In relation to these dates, I have observed the following:
Record 07
58. Record 07 is an email from DAA to the commercial company on 17 November 2023 (@16:25), noting correction to body of previous email (Record 05 above).
Record 11
59. Record 11 is a Certificate of Analysis Report (No. 634904) concerning samples dated 10 February 2022.
Record 12
60. Record 12 is a Certificate of Analysis Report (No. 639445) concerning samples dated 15 March 2022.
Record 16
61. Record 16 is an email from DAA to the commercial company on 2 June 2022 (@18:25), referencing meeting held and containing links to legislation and the following three (3) attachments:
Records 16, 17, 18, 19, 20, 22, 23, 25 & 28
62. These nine (9) records, in totality, consist of a chain of email correspondence between DAA and the commercial company as follows – 2 June 2022 (@18:52 & @18:25), 1 June 2022 (@16:23, @13:24 & @11:04), 25 May 2022 (@16:14 & @ 09:33), and 24 May 2022 (@16:45). In addition, I have observed that Record 19 is an exact duplicate of Record 16. Record 25 is also an exact duplicate of Record 20. Record 28 is an email circulated internally in DAA on 3 June 2022, and on this basis could perhaps be considered out of scope, similar to Record 24. However, in this instance the information included within consists only of two (2) email chain attachments, which I have observed are exact copies of Records 16/19 & 20.
Records 21, 21.1 & 21.2
63. Record 21 is an email from DAA to the commercial company on 21 November 2023 (@13:35), referencing two (2) included attachments (which are Records 21.1 & 21.2). The Schedule of Records provided to this Office by DAA describes Record 21.1 as “Letter to FCC regarding PFAS and offsite wells” and Record 21.2 as “Map of listed Wells around Dublin Airport from GSI, with coordinates”.
Record 26
64. Record 26 is an email from the commercial company to DAA on 15 November 2022 (@14:52) in response to previous email from DAA (Record 04 above).
Record 27
65. Record 27 is an email from DAA to the commercial company on 3 February 2022 (@16:26) and response from the commercial company on 4 February 2022 (@14:15).
66. Although DAA has indicated that each of the above records withheld are directly relevant to legal proceedings and “will be relied upon” by it in the context of same, it has not identified, for the purposes of this review, the specific legal proceedings involved or provided any adequate information as to the nature of the proceedings. Having examined the content of the records, it is not apparent to me how release could adversely affect the course of justice. As outlined above, the records consist mainly of communications in relation to meetings planned and held, and documentation relating to the collection of samples and sample results. A large amount of email content is duplicated across records. Some of the information, in particular sample results, are already publicly available and those which are not clearly contain similar type content, and it being information which is of a factual nature. I am also cognisant that the commercial company/third party has not objected to release of the information.
67. In conclusion, DAA has not shown how the release of any of the above records could adversely affect the course of justice; or that any such expectation of an adverse effect is reasonably foreseeable within the terms of the exemption. Without this information (which was specifically requested by this Office), it is not possible for me to find that the information sought is relevant to the proceedings, or to find that the course of justice would be adversely affected by the release of the requested information.
68. Overall, in the circumstances of this case and having examined the content of the records at issue, I find that article 9(1)(b) does not apply to the information sought.
69. I would encourage DAA to review this decision and other recent decisions issued by this Office in respect of appeals against decisions of DAA and ensure that when processing future AIE requests that a) adequate reasons are provided to the requestor when a decision is made to refuse access to information, and b) that DAA engages with this Office and where specific information is sought as part of our investigation, that this information is provided.
70. Having carried out a review under article 12(5) of the AIE Regulations on behalf of the Commissioner for Environmental Information, I hereby annul the decision of DAA. In addition to the release of seven (7) records that DAA is no longer withholding and are publicly available, I direct it to release all remaining identified information to the appellant, apart from Record 24, which I consider to be outside of scope of the appellant’s request.
71. 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