Cinneadh
Mr F and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-118187-Q5V7J7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-118187-Q5V7J7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
1. This appeal concerns the information on the risk analysis process which determines whether a forestry-related application receives a ‘field and desk’ or a ‘desk only’ inspection.
2. By letter dated 27 November 2021, the appellant requested the following information:
“All information relating to the development of the Risk Analysis process which determines whether a Forestry related application receives Field & Desk or a Desk Only Inspection.
“To include;
I request that the information is provided in an electronic format as soon as is possible.”
3. The Department issued a decision on 13 December 2021. It refused the appellant’s request under article 8(a)(iii) of the AIE Regulations, namely on the basis that disclosure of the information would adversely affect the protection of the environment to which the information related. The decision considered the weighing of the public interest served by disclosure against the interest served by refusal, in accordance with article 10(3) of the Regulations, concluding that, on balance, the public interest is best served by withholding the information sought on the basis of a “right to privacy of persons who may be identified by releasing the information and the right to due process.”
4. The appellant sought an internal review on 14 December 2021, alleging that the decision-maker had not provided any evidence or justification with respect to any adverse effect on the protection of the environment that would result from the release of the information requested. He also alleged that the weighing of the public interest was generic and inadequate, claiming that it had been copied from another document “as it does not even relate to the grounds for refusal.”
5. Due to an administrative error, the internal review decision, though dated 13 January 2022, did not issue to the appellant until 25 January 2022, outside the one-month timeframe provided for by Directive 2003/4/EC (the AIE Directive) and the AIE Regulations, and after the appellant had lodged an appeal with my Office on 17 January 2022.
6. The internal review decision affirmed the original decision, stating that the release of the information sought “could lead to the circumvention of the risk analysis procedures, which would undermine the system.” It noted, moreover, that the “public interest is not served by releasing this material, as the public must have confidence in the robustness of any such system.” Of note is the fact that the internal review decision made no reference to the right of privacy of persons and to the right of due process that the Department had cited in its original decision in weighing up the public interest served by disclosure against the interest served by refusal. It is a matter of conjecture whether the appellant’s comment on this point in his request for an internal review held any sway in the Department’s decision to excise it from the internal review decision. As stated, the appellant appealed to this Office on 17 January 2022. At the invitation of this Office, he submitted submissions in support of his appeal on 29 March 2022.
7. The Department made submissions in support of its decision to my Office on 13 May 2022. It added a new ground for its refusal to release information in the form of reliance on article 9(2)(c) of the Regulations, which provides discretion to a public authority to refuse access to environmental information where the request “concerns material in the course of completion, or unfinished documents or data”.
8. The Department was requested to lodge further submissions on 22 March 2023. No response was received by this Office.
9. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In carrying out this review, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
a. the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention);
d. the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);e. e.
e. the decisions of the High Court in:
(i). Right to Know v An Taoiseach [2018] IEHC 372 (Right to Know);
(ii). M50 Skip Hire & Recycling Limited v Commissioner for Environmental Information [2020] IEHC 430 (M50);
f. the decision of the Court of Appeal in Redmond v Commissioner for Environmental Information [2020] IECA 83 (Redmond); and
g. the decision of the Court of Justice of the European Union (CJEU) in C-619/19 Land Baden-Württenberg v DR (Land Baden-Württenberg).
10. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
11. The internal review decision in this case upheld the original decision, refusing the request under article 8(a)(iii) of the AIE Regulations. In submissions lodged by the Department with this Office in the course of the review of the appeal, it added a further ground to justify its refusal to release information, namely article 9(2)(c).
12. A review by the Commissioner is considered to be de novo, which means that it is based on the circumstances and the law at the time of the decision. Accordingly, I consider it appropriate to examine the applicability of the additional exemption cited by the Department in its submissions to this Office, which is article 9(2)(c) of the AIE Regulations, notwithstanding the fact that the provision was not originally relied upon by the Department in its internal review decision.
13. In the course of the review in this case, this Office’s investigator wrote to the Department seeking clarification on a number of matters related to its decision and posing certain questions put forward by the appellant in his submissions to this Office. No response was received. This is highly regrettable as failure by public bodies to engage with my Office in a timely manner makes it more difficult to deal efficiently with the relevant appeal.
14. The scope of the review in this case is confined to whether the refusal of the request is justified under articles 8(a)(iii) and 9(2)(c) of the AIE Regulations.
15. It is regrettable that in this appeal no identification was made by the Department, either in its original or internal review decisions, of the information in its possession, relevant to the appellant’s appeal but not disclosed. In the ordinary course, a public authority will respond to a request for information by identifying those records which it proposes to release and those which, by virtue of a relevant exemption under the AIE Regulations, it proposes not to release. From such an approach, a requester can be satisfied that relevant information has been identified and located and can make a determination as to whether to pursue an internal review, or not, as the case may be. It is best practice that a requestor be provided with a schedule of records, with each record identified separately and, where information is considered by the public authority to be exempt, identifying the relevant provision of the AIE Regulations. However, in cases where a public authority does not identify relevant information to a requester, it constrains the ability of a requester to make a judgment as to whether to request an internal review or, as in the current case, to appeal a decision to this Office.
16. Copies of the relevant records, together with an accompanying schedule were provided to this Office during the course of the appeal. While there is no obligation on public authorities to provide a schedule of relevant records with its decisions, it is best practice to do so. In this case, neither the schedule provided by the Department to this Office, nor any other schedule, appears to have been given to the appellant with the original or internal review decisions. The Department is encouraged routinely in future to provide a schedule of relevant records in a response to a request for information, noting whether each record is being released, part-released or refused, with the reasons and the relevant article of the Regulations which apply in each case.
17. For the purposes of this appeal, I am required only to consider the Department’s arguments made in its internal review decision and in its submissions submitted to this Office subsequent to the lodging of the appeal. However, I take the opportunity to note, for the benefit of the Department, that though in its original decision it cited article 8(a)(iii) as the basis for its refusal to release any information to the appellant, it gave no detail in relation to the adverse effects it contended the release of information would have on the protection of the environment to which the information related. It merely restated the provision of the article. This lack of detail would not have been sufficient, in and of itself, to allow me to sustain the Department’s position, had it been the case that no internal review decision nor subsequent submissions had been provided by it in this case. As stated by Faherty J in Right to Know, “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” (para. 106).
18. I note, further, that in its weighing up of the interests served by disclosure as against non-disclosure in line with article 10(3) of the Regulations, it decided in favour of non-disclosure on the basis of a right to privacy of persons who may be identified by releasing the information and the right to due process. This basis appears to be, rather than a factor to be taken into account in the article 10(3) weighing up process, a first instance reason for refusing to release information permitted by the AIE Regulations, as part of it at least – the right to privacy, if this can be interpreted to equate to the right to confidentiality of personal information – is an exemption to the release of information grounded in article 8(a)(i) of the Regulations. It may be either that the Department confused the right to privacy of persons in this latter article with a factor to be taken into account in the article 10(3) weighing up process, or the effect, as the appellant contends, of a copying exercise by the Department from another document unrelated to this appeal. The Department did not elaborate on how the right to privacy arises in the context of this request and the information sought. In any event, consideration of the original decision letter is not required for the purposes of this decision.
19. It was the view of the investigator assigned to this case that some of the records submitted to this Office in the course of the appeal, none of which was disclosed to the appellant, could potentially be considered to be already in the public domain by virtue of their wide circulation and, therefore, were not exempt from release under the provisions of articles 8(a)(iii) and 9(2)(c). This point was made to the Department but no response was forthcoming. An example of one record that could potentially fall into this category is a consultation environmental report, which extends an invitation to “interested organisations and members of the public” to view and comment on it. Given this invitation to the world at large, it is difficult to understand why the Department has refused to release it to the appellant, as it has already been put into the public domain. This would suggest that a blanket approach has been taken to this request and that the Department has not carried out a critical examination of every document to ascertain whether each can be disclosed or whether one or other may fall to be considered under one of the exempting provisions of the AIE Regulations. This is failure on the part of the Department to carry out its duties under the AIE Regulations.
The Appellant’s contentions
20. The Appellant’s contentions are as follows:
a. No evidence or justification has been provided as to any adverse effect on the protection of the environment that would result from the release of the information requested;
b. The weighing of the public interest is not only generic and inadequate but has clearly been copied from another document as it does not relate to the grounds of refusal in [article 8(a)(iii);
c. If the danger of circumvention of the risk analysis procedures stems from the possibility of forestry licence applicants manipulating their applications in order to avoid a field inspection, it is for the Department to evidence how such licence applicants could circumvent the process and how circumvention could lead to an adverse effect on the environment.
d. It is difficult to see how information on how the Forest Service determines whether to carry out a field inspection of a particular application would make it more likely that the environment to which such material relates would be damaged.
e. There is a public interest in ensuring that the Department’s procedures for risk analysis of projects is sufficiently robust so as to establish a public confidence in those procedures.
f. The public interest test carried out by the Department is largely generic and has not given full consideration to the public interest benefits that would follow from release of the information.
g. It appears that the material protected by non-disclosure in section 11.4 of the Ministerial Guidelines, designed to cover information “such as that pertaining to the location of endangered species where, for example, disclosure of detailed information would pose a risk to the continued integrity of rare specimens” and the disclosure of which “would make it more likely that the environment to which such material related would be damaged” is of a very different nature to the information requested by him.
h. There is nothing in the Department’s decision to indicate that Article 10(4) of the Regulations has been applied.
The Department’s contentions - Article 8(a)(iii)
21. The internal review decision appears to rely on article 8(a)(iii) in refusing the request, although the decision letter itself does not make explicit reference to the provision. Affirming the original decision, it states that releasing “material in relation to this request could lead to the circumvention of the risk analysis procedures, which would undermine the system. The public interest is not served by releasing this material, as the public must have confidence in the robustness of any such system.”
22. In its submissions to this Office, which were accompanied by a schedule of records held by the Department and copies of the records themselves, it maintained its position that to make this information available would adversely affect the protection of the environment to which the information related, adopting the exemption found in article 8(a)(iii) of the AIE Regulations, and that the information, if released, could be given to prospective applicants and used to circumvent the risk analysis procedures, with the possible result of licences being granted in locations where it is wholly inappropriate that any afforestation, road building or felling should take place, thereby achieving the opposite of protecting the environment.
Article 9(2)(c)
23. In its submissions to this Office, the Department also relied on article 9(2)(c) in refusing access to the information sought. It stated that risk analysis procedures are continually reviewed by the various technical sections (ecology, archaeology and inspectors), and updated and should therefore be considered as being in the course of completion, or unfinished documents in accordance with article 9(2)(c).
Whether refusal is justified by article 8(a)(iii) of the AIE Regulations
24. The Department has relied on article 8(a)(iii) of the AIE Regulations in refusing the appellant’s request. Article 8(a)(iii) provides that a public authority shall not make available information where the disclosure would adversely affect the protection of the environment to which that information relates. This provision seeks to transpose Article 4(2)(h) of the AIE Directive, which in turn is based on Article 4(4)(h) of the Aarhus Convention.
25. Where a prima facie correct application of article 8(a)(iii) has been made, it must then 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.
26. The Minister’s Guidance, in considering “[m]aterial the disclosure of which would make it more likely that the environment to which such material related would be damaged” outlines:
“This exclusion is designed to cover information such as that pertaining to the location of endangered species where, for example, disclosure of detailed information would pose a risk to the continued integrity of rare specimens” (paragraph 11.4).
27. The Aarhus Guide notes that the equivalent provision in the Aarhus Convention allows public authorities “to protect certain sites, such as the breeding sites of rare species, from exploitation — even to the extent of keeping their location a secret. It exists primarily as a safeguard, allowing public authorities to take harm to the environment into consideration when making a decision whether or not to release information.” The AIE Directive at article 4(2)(h) also allows for a request for environmental information to be refused if disclosure would adversely affect “the protection of the environment to which such information relates, such as the location of rare species.”
28. Though the Aarhus Convention, AIE Directive, and Minister’s Guidance all refer variously to the protection of “rare species”, “endangered species” or “rare specimens” as the subject matter of the protection to be conferred by non-disclosure of environmental information, this does not signify that the protection is exclusive to rare species or specimens of, for example, birds, insects and other living creatures, or to trees, flowers and other naturally occurring plant life. The protection is generic and all-compassing by providing that “a public authority shall not make available information where the disclosure would adversely affect the protection of the environment to which that information relates.” The specific examples given are nothing more than that. The provisions affording the protection are couched in generic language precisely in order to preclude the exclusion of any type of harm that could arise from a release of information relating to the environment in which that harm could take place. The appellant contends that the information which he is seeking is of a very different nature to that relating to the specific examples given above. While article 10(4) requires the grounds for refusal of environmental information to be interpreted on a restrictive basis, I consider that those examples are not exhaustive and the protection afforded by article 8(a)(iii) is broader than the protection of endangered species or rare specimens, requiring consideration on a case by case basis.
29. It is clear that the purpose of article 8(a)(iii) of the AIE Regulations is to allow for the withholding of information where disclosure would be harmful to the protection of the environment. When relying on article 8(a)(iii) the public authority should identify the environment to which the information at issue relates and explain how disclosure of the information at issue would adversely affect the protection of that environment. Again, the public authority must demonstrate a clear link between disclosure of the specific information that it has withheld and any adverse effect. As stated by the CJEU in Land Baden- Württenberg, the risk of the protection of the environment being undermined must be reasonably foreseeable and not purely hypothetical (para. 69). A mere assertion of an expectation of harm is not sufficient.
30. The investigator in this appeal asked the Department to explain in detail how disclosure of the information at issue would adversely affect the protection of the environment to which that information relates. In doing so, it was asked to describe the nature of the adverse effect(s) expected, to explain how the release of the particular information is expected to result in the adverse effect(s) identified and to explain why the Department considers the adverse effects(s) to be reasonably foreseeable. However, no response was forthcoming from the Department to these questions.
31. The Department contends that release of “material in relation to this request could lead to the circumvention of the risk analysis procedures, which would undermine the system” and that the information, if released, could be given to prospective applicants and used to circumvent the risk analysis procedures, with the possible result of licences being granted in locations where it is wholly inappropriate that any afforestation, road building or felling should take place, thereby achieving the opposite of protecting the environment.
32. The Department has not identified in sufficient detail the environment to which the information at issue relates. It has not explained how disclosure of the information would adversely affect the protection of that environment, nor demonstrated a clear link between disclosure of the specific information that it has withheld and any adverse effect. Due to this, the Department has failed to provide sufficient evidence to support the assertion that any adverse effect on the protection of the environment would occur on foot of the release of the information at issue. For example, it has not explained how the information would allow for prospective applicants to circumvent the risk analysis procedure. It also does not specify the possible results of licences being granted in locations which may be inappropriate for afforestation, road building or felling and does not explain what it means by the undermining of “the system”. Given the lack of detailed reasoning provided by the Department, I cannot conclude that any adverse effect on the protection of the environment from the release of the requested information is anything more than purely hypothetical.
33. It is for this reason that I cannot find that the Department’s use of article 8(a)(iii) is justified in the circumstances. That being the case, it is not necessary for me to consider whether the requirements of article 10 of the AIE Regulations have been complied with by the Department in its application of article 8(a)(iii).
Whether refusal is justified by article 9(2)(c) of the AIE Regulations
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.
35. In its submissions to this Office, the Department contended that the risk analysis procedures the subject of the appeal are continually reviewed by the various technical sections (ecology, archaeology and inspectors), and updated, and should therefore be considered as being in the course of completion, or unfinished documents in accordance with article 9(2)(c) of the AIE Regulations. It applied this exemption to all of the records identified and refused.
36. When relying on article 9(2)(c) of the AIE Regulations a public authority should explain why the information at issue comes under the exemption and make it clear which limb(s) of the exemption it is invoking, i.e. whether it concerns material in the course of completion and/or unfinished documents and/or unfinished data. In doing so, a public authority must consider the status of the records themselves and not the overall process to which the records relate. The question is whether the information, rather than the procedures in respect of which the information has been generated, “concerns material in the course of completion or unfinished documents or data”. In addition, the mere status of a record as a draft alone does not automatically bring it under the exemption.
37. The Department has provided no further detail and has not referred to any particular records or information – copies of which were supplied to this Office – that might fall to be considered “in the course of completion” and/or “unfinished”. As noted, the records comprise documents, including documents that have been redacted or are capable of otherwise being considered draft in nature, and email chains. It seems to me that the Department’s application of article 9(2)(c) to all of the records refused may be due to their relationship with the risk analysis procedures concerned with forestry related applications, regardless of their specific nature or content. This is not an appropriate application of the exemption. There is no evidence to suggest that any consideration was given to each one of the records to determine if any did in fact concern material in the course of completion, or any was an unfinished document.
38. The Aarhus Guide supports the view that the expression “in the course of completion” contained in article 9(2)(c) relates to the process of preparation of the information or document. It does not relate to any process or procedure for the purpose of which the information at issue has been prepared. This aligns with the clear wording of article 9(2)(c) which refers in no uncertain terms to “materials in the course of completion” and “unfinished documents or data”, and not to any process or procedure.
39. The Department has provided 35 documents to this Office, which it considers to be within the scope of the appellant’s request. It is clear that many of these documents are not incomplete or unfinished. For example, some of the documents are internal Departmental emails, whilst others are completed reports, manuals or guidelines. These emails and publications cannot be said to amount to incomplete or unfinished documents. While one document provided to this Office by the Department has the word “draft” in its title, and at least one has the word ‘draft’ embossed as a watermark on its pages, the Department has otherwise not identified in its submissions or in its schedule of records which of the documents provided are in the course of completion or which are unfinished. It is to be noted, however, that use of the word “draft” in a document does not mean, in and of itself, that it is in the course of completion or unfinished. It appears that the Department has decided to refuse release of all the documents under the umbrella of article 9(2)(c) without examining which of them truly can be considered to fall within its embrace. This approach runs counter to the spirit and the letter of the AIE Regulations, which seek to foster an open circulation of information on the environment, subject to certain necessary exceptions.
40. Further, if the Department’s reliance on article 9(2)(c) had been correctly set out, it would have also given reasons why it was necessary to refuse access to documents that “are in the course of completion” or which are “unfinished”. In its submissions, the Department merely states that the risk analysis procedures are continually reviewed and updated. It is my considered view that this explanation falls short of compliance with the duty to give reasons which the High Court made clear exists in Right to Know. As Faherty J held at paragraph 106 of her judgment, the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot constitute a sufficient reason for a refusal to disclose such information. As explained above, the exemption in article 9(2)(c) must apply to requested information, not to procedures. Moreover, it may be the case that some unfinished documents, or documents in the course of completion, do in fact remain in that state in perpetuity, never to be finished or completed. The exemption applies only to documents that do not fall into that category but rather to those that are being actively worked upon by a public authority. As the Aarhus Guide explains, “[t]he 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” (article 3(a)(c)). Unless the Department can point to the documents which it is actively working upon and which can be considered to benefit from the exemption, as well as provide a convincing reason for their non-release, then its claim to this exemption must fail. Even if one were to assume that the interest it seeks to protect is the private thinking space around the information informing the risk analysis procedures the subject of the appeal, the Department has not identified how that interest would be specifically and actually undermined by release of the relevant information.
41. As the Court of Appeal has made clear in Redmond, proceedings before this Office are “inquisitorial rather than adversarial in character” and “the extent of the inquiry is determined by the Commissioner, not by the parties” (paragraph 51). In addition, the High Court in M50 has confirmed that the Commissioner “enjoys a wide jurisdiction to conduct a de novo consideration of a request for access to environmental information”. It is therefore open to this Office to consider each of the 35 documents to consider whether article 9(2)(c) of the AIE Regulations might provide grounds for refusal for any of them and direct release of those documents to which I do not consider the exemption to apply. Alternatively, I can remit the matter to the Department so that a fresh decision-making process can be undertaken.
42. There are a number of competing factors to consider when deciding the appropriate course of action in this case. The Department has failed adequately to consider the information in question and the applicability of article 9(2)(c) to each document identified. In circumstances where it has adopted a blanket approach to refusal, the Department cannot be said to have complied with the requirements, set out in articles 10(3) and 10(4), to consider the individual circumstances of the request, to interpret grounds for refusal restrictively and to weigh the public interest served by disclosure against the interest served by refusal. It has also failed to consider the question of partial disclosure in accordance with article 10(5) of the Regulations. Finally, it has failed to comply with its obligations under article 10(6), which requires the Department to inform the appellant of the estimated time needed for completion. Were this Office to use its inquisitorial functions to carry out a de novo review of the application of article 9(2)(c) to the information requested, this would effectively amount to carrying out the tasks which the Department has failed to carry out, on its behalf. This risks allowing the Commissioner’s inquisitorial functions to be exploited in a manner contrary to the public interest, particularly in circumstances where the number of appeals being received by this Office has been increasing at a pronounced rate. On the other hand, the appellant’s request to the Department was made in late November 2021 and it is not desirable that the remittal of this case to the Department should add to the delay he has already experienced.
43. In the particular circumstances of this case, a de novo review for the purposes of deciding whether the information should be withheld or released would require the review of 35 documents – some substantial -- by this Office, many of which do not appear to have been reviewed in the first instance by the Department. I also note that some seem to involve one or other third party none of whom may have been consulted or notified by the Department. It would therefore be necessary to consider the interests of those third parties and whether consultation with those parties is necessary as part of the review. I consider that those particular circumstances tip the balance in favour of remittal to the Department. I understand that the appellant is likely to be disappointed given the delays he has experienced thus far. However, I do not consider it an efficient use of the resources of this Office to carry out functions which should have been carried out by the Department in the first instance. I also note that if this Office were to carry out a more in depth review, further information may be required from the Department, which would result in further delays before a decision could be reached. I consider that the most appropriate course of action to take is to annul the Department’s decision in its entirety and direct it to undertake a fresh decision-making process in respect of the appellant’s request. The appellant will have a right to an internal review and a review by this Office if he is not satisfied with the Department’s decision. As part of the fresh decision-making process the Department should:
(i). Bearing in mind the requirements of article 10(4) and the decision in Land Baden-Württenberg:
a. explain how disclosure of the information at issue would adversely affect the protection of the environment to which that information relates, describing the nature of the adverse effect(s) that have a reasonable possibility of arising and identifying the environment in which they would arise, should it consider article 8(a)(iii) to apply;
b. examine the documents at issue in order to identify those which are actively being worked upon, if any, and which may fall to be considered under article 9(2)(c) and give reasons for non-release if deemed appropriate;
(ii). Set out clearly the factors it considers to weigh in favour of refusal and release and the basis on which it considers that the interest in refusal outweighs the public interest in disclosure, in accordance with the requirements of article 10(3);
(iii). Assess whether any information can be separated from the information to which it considers grounds for refusal apply, so that such information can be released to the appellant in accordance with the requirements of article 10(5);
(iv). Consider whether the interests of any third parties might be affected by disclosure and consult with those third parties as appropriate.
(v). Consider the possibility that some of the records not released to the appellant could be considered to be in the public domain by virtue of their wide circulation, thereby not benefiting from the protection of the non-disclosure exemptions found in the AIE Regulations, and being susceptible, therefore, of release to the appellant.
44. Accordingly, I do not find that the Department’s reliance on articles 8(a)(iii) and 9(2)(c) of the AIE Regulations is justified. In the circumstances, though I am not required to consider article 10 of the AIE Regulations, I take the opportunity to note that it is regrettable that the Department did not engage with the investigator’s direct queries on the provisions of this article.
45. Having carried out a review under article 12(5) of the AIE Regulations, I find that the refusal of the information sought was not justified by the reasons given and I annul the decision of the Department. Given the lack of information available to this Office and the involvement of third parties, I do not consider it appropriate to direct release of the information sought and I remit the request to the Department to carry out a fresh decision making process, taking into account the findings above.
46. 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