Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-144057-Y9N7Y4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified, on the basis of article 9(2)(a) of the AIE Regulations, in refusing to provide access to the requested material.
1. On 15 August 2023, the appellant made the following request to the Department:
“We hereby REQUEST that you furnish us with copies of all documentation, correspondence, memoranda, and records, whether in electronic form or otherwise held, relating to the application for and determination of Foreshore Licence FS007546 granted to Codling Wind Park Limited on the 12th May 2023 and published in Iris Oifigiúil on 19th May 2023 .”
2. On 12 September 2023, the Department, having estimated that 455 records would need to be reviewed to determine whether they fall within the scope of the request, refused the request in its entirety, citing, as the basis for the refusal, article 15(1)(c) of the Freedom of Information Act and article 9(2)(a) of the AIE Regulations.
3. On 4 October 2023, the appellant sought an internal review of the Department’s decision. On 24 October 2023, the Department issued its internal review decision affirming its original decision on the same basis as the original decision; namely article 15(1)(c) of the Freedom of Information Act 2014 and article 9(2)(a) of the AIE Regulations.
4. The appellant appealed to my Office on 22 November 2023.
5. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and 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); and
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
6. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
7. In accordance with article 12(5) of the AIE Regulations, my role is to review the Department’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Department to make available environmental information to the appellant.
8. The scope of this review is to determine whether the Department was justified in refusing access to the requested material on the basis of article 9(2)(a) of the AIE regulations, if necessary, having regard to article 10 of the AIE regulations.
9. The appellant stated, in its submission of 22 November 2023, that “the potential impact of licenced activities on marine life ,” justifies the release of the information sought. It said that “transparency regarding marine resources of the State is a matter of national importance ” and it is in the public interest that the information is released. It stated that, given the volume of documentation passing through the Department generally, the records requested are unlikely to substantially interfere with the work of the unit.
10. In its original decision of 12 September 2023, the Department stated that the appellant was offered assistance in narrowing the scope of the request by letter dated 23 August 2023 and by follow-up telephone call on 5 September 2023. The Department said that, during the telephone call, it advised the appellant that a response was required by 7 September 2023; no further clarification was received from the appellant, however.
11. In its submission of 22 November 2023, referring to the Department’s claim that the appellant failed to avail of an offer to narrow the scope of the request, the appellant stated that, during the telephone call on 5 September 2023, it confirmed to the Department that it did not require sight of any documentation available on the Foreshore Licence webpage. It said that by limiting the request in this way, this negated the requirement for almost 40 documents.
12. The appellant said that it advised the Department during the telephone call that it was considering its position regarding the Department’s letter of 23 August 2023 on narrowing the scope of the request. The appellant said there was no time limit contained in the letter of 23 August.
13. In its internal review decision of 24 October 2023, with regard to article 9(2)(a) of the AIE Regulations, the Department stated that the documents relevant to the decision-making process for the licence were all available online, publicly. This fact, combined with the volume of records that would have to be assessed to determine if they fell within the scope of the request, rendered the request manifestly unreasonable.
14. With regard to the public interest balancing test under article 10(3) and (4) of the AIE Regulations, given that offers of assistance to narrow the scope of the request were not availed of, the Department considered that the public interest has been served in the publication of all documentation used in making a decision on the matter, which is available at FS007546 Codling Wind Park Ltd. Site Investigations for proposed Offshore Wind Farm, off Counties Wicklow and Dublin
15. The Department also stated that the review of 455 records would result in a substantial interference with the functioning of the unit in question. By email dated 12 January 2024, it estimated that the review of approximately 400 documents would take 4.2 weeks to complete (20 minutes estimated per review of each document). It stated that the review of this would cause a substantial and unreasonable interference with the ordinary work in the office. It said that “the public interest would not be best served by reassigning resources to the provision of all unpublished correspondence, draft documents and all other correspondence not related to the decision making process in this matter .”
16. Both parties were invited to make further submissions. The Department provided further submissions by email on 2 July 2025. These were provided to the appellant on 15 July 2025 and a response or further submissions was invited. No response was received from the appellant.
17. The Department provided responses to specific queries on 25 September 2025. The Department said the task of reviewing the documents to see whether they were within scope would most likely fall to a staff member of Executive Officer grade on the Foreshore Unit Team. The work would then be approved by a Principal Officer prior to the release of documents. The Department stated that the work of the unit would be disrupted as the task would “require reassignment of staff from their current duties which is primarily focused on the Phase-out of Foreshore unit while processing administrative functions on residual Foreshore applications under the Foreshore Act 1933 .” It also said that it would interfere with other work of the unit and listed tasks the unit is involved in. The Department said that the Section would be required “to reprioritise work on hand to compensate for the reassignment of staff, which would impact the Foreshore Team’s ability to carry out its role in the targeted timeframe .”
Article 9(2)(a) of the AIE Regulations
18. Article 9(2)(a) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. This provision seeks to transpose Article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and, in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.
19. Article 9(2)(a) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
Reformulation/Refinement of Request
20. The Minister’s Guidance, at paragraph 12.8, states that article 9(2) of the AIE Regulations “clarifies that a public authority may refuse to make information available if the request is considered unreasonable due to the range of material sought, if the request is too general or if the material requested is not yet completed. Public authorities are requested to invoke these grounds for refusal sparingly, and to assist the applicant (to reformulate a request, for example) as appropriate ”. In light of this, I am of the view that where a public authority intends to refuse a request under article 9(2)(a) of the AIE Regulations, it should first assist the appellant to reformulate the request as appropriate. Both public authorities and appellants should seek to liaise constructively with a view to processing the request as efficiently as possible.
21. In this case, as referred to, the Department contacted the appellant twice (23 August and 5 September) in order to seek to assist the appellant in narrowing the claim. While the appellant said that it advised the Department that none of the documents available publicly were required, it appears to be accepted by both parties that no further response was provided by the appellant. The appellant stated that no time limit for response was contained in the letter of 23 August 2023 but did not contradict the Department’s assertion that it indicated by telephone call that a response was required by 7 September 2023. Either way, no response was provided by the appellant and, as such, it appears that the appellant could have liaised further with the Department with a view to facilitating the processing the request as efficiently as possible.
Meeting the Manifestly Unreasonable Threshold
22. The European Commission’s First Proposal for the AIE Directive envisaged that the exception in Article 4(1)(b) would cover requests “variously described in national legal systems as vexatious or amounting to an abus de droit .” It noted that “compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. Public authorities should be able to refuse access in such cases in order to ensure their proper functioning .” The Aarhus Convention Compliance Committee (ACCC) has emphasised that “whether or not a request is manifestly unreasonable relates to the nature of the request itself, for example, its volume, vagueness, complexity or repetitive nature, rather than the reason for the request, which is not required to be stated .” (Report adopted on request for advice by Belarus, ACCC/A/2014/1, paragraph 28).
23. In respect of a request which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, it is clear that a request is not necessarily covered by the “manifestly unreasonable ” exception just because it is voluminous or complex. Both article 7(2)(b) of the AIE Regulations and Article 3(2)(b) of the AIE Directive specifically envisage that public authorities will deal with voluminous or complex requests, albeit in a longer timeframe. I further note the parallel duty in Article 7(1) of the AIE Directive to ensure that public authorities organise environmental information with a view to its active and systematic dissemination to the public, and article 5 of the AIE Regulations which seeks to implement that provision. In his Opinion in C-217/97 Commission v Germany at paragraph 30, Advocate General Fennelly stated that the duty in Article 7 of the AIE Directive indicates that individual requests should, in principle, be on matters of detail. Accordingly, the fact that a request is detailed does not mean that it is necessarily unreasonable.
24. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, I must examine whether responding to the request would involve the public authority in disproportionate cost or effort, or would obstruct or significantly interfere with the normal course of its activities. In light of the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission, at paragraphs 101-115, I consider that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request. I expect that if a public authority wishes to rely on the manifestly unreasonable nature of a request, that public authority will clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.
25. This position is supported by recent comments from Advocate General Medina in her opinion on Coillte v Commissioner for Environmental Information Case C-129/24, in which she stated “in so far as it constitutes an exception to the general rule that information must be provided, refusal on the ground of a manifestly unreasonable request must remain exceptional ”. In this opinion, she also states “in particular, with regard to the volume of the information requested, according to Article 3(2)(b) of Directive 2003/4 that factor (as well as the complexity of the information requested) justifies an extension of the one-month time limit in which the administration must reply. It follows from a combined reading of Article 3(2)(b) of Directive 2003/4 and Article 4(2)(b) of that directive that the volume of the requested information alone does not render a request manifestly unreasonable ”. She concludes however that a holistic view must be taken of each case, stating “it follows that determining whether a request is manifestly unreasonable depends not on the number, the nature or the frequency of requests taken in isolation, but on all the circumstances of each case .”
26. It is also important to bear in mind article 5 of the AIE Regulations and articles 7 and 3(5) of the AIE Directive, which place duties on public authorities to organise and actively disseminate environmental information, to support the public in seeking access to information and to put practical arrangements in place to ensure the effective exercise of the right to access environmental information. It is not within this Office’s powers to examine the implementation of article 5 of the AIE Regulations or article 7 of the AIE Directive by public authorities. However, I am satisfied that the exemption in article 9(2)(a) is not intended to endorse any failure by a public authority to comply with its duties to organise and disseminate environmental information under those provisions. Furthermore, in every case, regard should be had to the purpose of the AIE Regime, as reflected in Recital 1 of the Preamble 6 to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment .” Accordingly, in cases involving article 9(2)(a) this Office may consider whether the information requested is the kind of environmental information that one would expect to be organised by the public authority in a manner that enables its easy dissemination.
27. In this case, apart from stating that it did not require information that was already publicly available, the appellant did not engage with the Department in seeking to narrow the scope of the request. While a requester’s refusal to refine a request and reduce the volume or range of information sought may impact whether a request is manifestly unreasonable, and this Office would encourage both parties to liaise constructively, a requester’s unwillingness to engage with a public authority is not, in and of itself, a basis for refusal under article 9(2)(a) of the AIE Regulations.
28. It is clear, however, from the comments of Advocate General Medina in Coillte v Commissioner for Environmental Information Case C-129/24, refusal on the grounds of article 9(2)(a) of the AIE Regulations remains exceptional. Furthermore, the public authority should demonstrate that the request would obstruct or significantly interfere with the normal course of its activities. The administrative burden placed upon them must be “particularly heavy ” (T-2/03 Verein für Konsumenteninformation v. Commission, at paragraphs 101-115). Article 10(4) of the AIE Regulations stipulates that exceptions under the AIE Regulations shall be interpreted on a restrictive basis, having regard to the public interest served by disclosure.
29. While the Department has listed the tasks of the unit that is likely to be assigned to review the documents potentially within scope, having regard to the exceptional nature of refusal on the grounds of article 9(2)(a) of the AIE Regulations, it has not demonstrated that the request would significantly interfere with the normal course of its duties. While I appreciate that the request is likely to take up time for the unit which has other pressing deadlines, I am mindful that the exception in article 9(2)(a) is only available, on an exceptional basis, where the administrative burden entailed by dealing with the request is particularly heavy.
30. The Department has stated that a staff member from the unit in question is likely to be assigned the task of reviewing the documents relevant to the request as that team is familiar with types of documents involved in the request; this may facilitate and expedite the work involved in the request. I also note the duty under article 5 of the AIE Regulations and Article 7 of the AIE Directive that environmental information be organised by the public authority in a manner that enables its easy dissemination.
31. Furthermore, the Department have stated that some of the information in relation to the granting of the licence is already publicly available and the appellant has stated that it is not seeking any information that is already publicly available. The Department had submitted to us that the following actions would have to be taken on each of the circa 455 records: “each record reviewed to identify personal /sensitive data to be redacted - Any redactions would have to be carried out - Redacted file saved to Decision folder and unredacted copy retained for records - Schedule of Records updated as appropriate - Duplicate files identified as the same file can be stored in various folders due to the complexity of the management of an application under the Foreshore Act. - For context, this application required three different submissions to the Minister for decision, (Screening for Appropriate Assessment; Appropriate Assessment and Final Determination). Each stage would contain copies of the documents for attaching to the Submission for decision”. The Department has said “acknowledging that the requester confirmed that they were not looking for copies of the documentation on the website, it should be noted that the files would have to be reviewed to identify the draft documents/correspondence etc v the files published .” In the circumstances, I consider it likely that some of the documents may not need to be reviewed in the level of detail suggested by the Department, as it appears that some of them will either be duplications, or may well be out of scope, by virtue of the fact they are publicly available.
32. Furthermore, it has not been suggested in this case that reviewing the documents that may fall within the scope of the request would be a particularly complex exercise; it appears that the Department is arguing that the volume of documents alone cause the request to be manifestly unreasonable. The Advocate General Medina, in her opinion on Coillte v Commissioner for Environmental Information Case C-129/24 stated, however, that while a holistic view of the circumstances of each case must be taken, it follows from a “combined reading of Article 3(2)(b) of Directive 2003/4 and Article 4(2)(b) of that directive that the volume of the requested information alone does not render a request manifestly unreasonable ”. In any event, for the reasons I have set out above I am not satisfied with the explanation provided by the Department regarding the time it would take to review these documents to determine whether they are within scope of appellant’s request.
33. In addition, article 7(2)(b) of the AIE Regulations and article 3(2)(b) of the AIE Directive provide that a public authority may extend the time for providing the information sought under an AIE request where the information cannot be provided within one month due to the “volume and complexity ” of the information sought. The Department did not seek to invoke this provision in order to extend time for dealing with the request.
34. Finally, with regard to article 10 of the AIE Regulations, article 10(3) requires the public authority to consider each request on an individual basis and weigh the public interest served by refusal against the public interest served by disclosure. Article 10(4) requires that any ground for refusal by interpreted on a restrictive basis, having regard to the public interest served by disclosure. An adequate consideration of the balancing of interests served by refusal of the request as against the interests served by the release of the information was not provided. While the Department stated that some of the information requested is already in the public domain, this did not sufficiently address and weigh up the public interest served by refusal compared with the public interest served by the release of the information.
35. In all the circumstances, the Department has not discharged the onus to demonstrate that the request is manifestly unreasonable and, as such, it has not been established that article 9(2)(a) of the AIE Regulations has been engaged.
36. 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 records sought under article 9(2)(a) of the AIE Regulations. I direct the Department to carry out a fresh internal review decision-making process in respect of those records.
37. 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.
______________________
Gemma Farrell
On behalf of the Commissioner for Environmental Information