Cinneadh
Protect East Meath Limited and Meath County Council
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-142512-V8T7R7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-142512-V8T7R7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Meath County Council was justified in refusing release of information under article 9(2)(c) of the AIE Regulations.
21 May 2025
1. On 14 July 2023 the appellant requested information from Meath County Council (the Council) with respect to:
“Under AIE please let us know how many housing units (houses and apartments) have been granted planning permission for the following settlements since the date of coming into force of the Meath County Development Plan 2021
1.Drogheda
2.Bettystown - Laytown - Mornington East and Donacarney
3.Julianstown .”
2. On 16 August 2023 the Council issued its original decision, refusing access to the information, citing article 9(2)(c) to support its position and stating:
“Having considered your request, my decision is to refuse your access to the information sought and provide the following information :
This element of the request is refused under Article 9.2(c) of the AIE Regulations .
While the above raw data is publicly available online on the e-planning portal, I have also taken into consideration your earlier AIE request Ref 33-23 and note that the qualitative information you require, i.e. what capacity of housing units are available in the above locations under the County Development Plan 2021- 2027- is currently being assessed by our Forward Planning Dept .
As part of the 2-year review of the County Development Plan, the Forward Planning Dept. has begun the process of monitoring the core strategy and it is envisaged that this will be completed in November 2023. The process will assess the level of permissions, units commenced, units delivered and expired permissions. In line with Article 10(3), my deliberations have included weighing the public interest served by disclosure against the interest served by refusal. The factors in favour of release of this information are :
•The right of individuals to seek information in relation on the Environment and have a say in decisions that affect the environment .
•Openness & transparency of public bodies in the performance of their duties/ obligations. The factors against releases of this information are :
•The protection of documents in the course of completion while data compilation and analysis of the information is underway .
I have decided that, on balance, the public interest in this case is best served by withholding this information until the record is completed and verified.
Under Article 10(6) where a request is refused pursuant to article 9(2)(c) because it concerns material in the course of completion, the public authority shall inform the applicant of the name of the authority preparing the material and the estimated time needed for completion. In this instance, Meath County Council have commenced the monitoring of the core strategy as part of the 2-year review of the County Development Plan. It is envisaged that the core strategy review will be completed in November 2023.”
3. On the 22 August 2023 the appellant submitted an internal review request, stating as follows:
“The level of planning permissions is something that has to be taken into account for every planning permission because the council has to check whether or not the core strategy has been exceeded. As you said yourself the information is available to the council and therefore is not "in the course of completion" since this is dynamic data that has to be updated regularly as new permissions are granted etc. If the council's interpretation was correct then any data set that changed frequently would be in the course of completion and this cannot be the case .”
4. On 21 September 2023 the Council issued its internal review decision affirming the original decision and stating that:
“As outlined in the original decision-maker’s correspondence dated August 16, 2023, this information can be accessed online on the e-planning portal, albeit the information requested is mixed in with all other planning applications for the County As previously advised the Council is currently undertaking a body of work to identify the number of residential units that were granted permission and completed/substantially completed prior to the commencement of the Core Strategy. This is a considerable body of work that is ongoing for the entire County and must be completed to ensure compliance with the Development Plan Guidelines for Planning Authorities 2022. The output of this exercise will inform the 2-year Progress Report on the County Development Plan 2021-2027 which is due in December 2023 and the information sought will be available to you at that stage ”.
5. With respect to the public interest test, the Council stated that:
“Furthermore, in accordance with Article 10(3) and 10(4) I have weighed the public interest served by disclosure against the interest served by refusal of your request. I have determined that the public interest would not be served by disclosing the information you request .
In line with Article 10 (3), my deliberations have included weighing the public interest served by disclosure against the interest served by refusal. The factors in favour of release of this information are the right of the public to have to have access to environmental information under the AIE regulations and transparency of the Planning and Development process. On balance, the public interest in this case is best served by withholding this information as the process to compile all of the information is not yet complete and could result in inaccurate information being put into the public domain. The information sought will be available to the public following the completion of the significant body of work currently being undertaken by the Planning Authority .”
6. The appellant appealed to my Office on 21 September 2023 on the basis of their view that the information had been wrongly refused, outlined in further detail in paragraph(s) 11-13 below.
7. 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 Meath County Council. 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’).
8. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
9. In accordance with article 12(5) of the AIE Regulations, my role is to review the Council’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Council to make available environmental information to the appellant.
10. The scope of this review concerns whether the Council was justified, under article 9(2)(c) of the AIE Regulations in refusing access to the information requested.
11. In their submission to this Office, dated 6 October 2023, the appellant contends that the Council are incorrect in their decision to refuse access to the information, on the basis that
the information is being used in an on-going process to produce a report, in the course of completion, stating:
“The request was refused despite the council acknowledging that the information existed because it said, in essence, that another piece of information (which was not requested) was in the course of completion, i.e. an analysis based on the information sought .There is no basis to refuse a request because a public authority is using the requested information for another purpose . 9.As the decision indicated, the council holds the information. The decision however did not explain why it either couldn’t or wouldn’t grant access to it. ”.
12. With respect to the Council’s reliance of 9(2)(c) to refuse access to the information, the appellant contends that:
“The fact that a requestor may have made a request for related information is an irrelevant factor. The fact that a public authority may be conducting its own analysis of the data is also irrelevant. For the avoidance of doubt dynamic information, i.e. information that is constantly changing cannot be considered in the “course of completion” for obvious reasons. If that were the case environmental monitoring information would always be in the course of completion and would be difficult to access. ”
13. With respect to the public interest balancing test detailed by the Council in its decision letters, the appellant states:
“_If the information is publicly available there is no public interest in refusing the request.
On the other hand, the public is entitled to make submissions on and to appeal planning decisions, including based on the core strategy compliance, but they have one hand tied behind their backs if they cannot find out whether and to what extent the housing allocation for a particular settlement has been exhausted. Thus an important safeguard against breach of the Core Strategy is frustrated if relevant information cannot be obtained by members of the public”_.
14. On 8 November 2023 the Council made a submission with respect to the appeal which reiterated the reasons given in reaching its decision, outlined in its decisions to the appellant (detailed in paragraph 2, 4 and 5 above). Noting that:
“The request was refused under Article 9(2)(c) of the AIE Regulations as it concerned concerns material in the course of completion, or unfinished documents or data. As part of the 2-year review of the County Development Plan, the Forward Planning Dept has begun the process of monitoring the core strategy and it is envisaged that this will be completed in November 2023. The process will assess the level of permissions, units commenced, units delivered and expired permissions .”
15. The Investigator assigned to this appeal wrote to the Council in April 2025, noting that while the 2-year Progress Report on the County Development Plan 2021-2027 has now been published, it does not contain the breakdown of information, per settlement, that the appellant had requested, seeking confirmation that the Council would now release the information in a revised decision.
16. On 6 May 2025 the Council issued a revised decision letter which detailed the information requested regarding the settlement data.
17. Article 9(2)(c) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns material in the course of completion, or unfinished documents or data. This provision transposes Article 4(1)(d) of the AIE Directive, which in turn is based on part of Article 4(3)(c) of the Aarhus Convention. This exemption is not harm-based. It is not necessary for the public authority to show that there is any adverse effect in respect of the release of the information at issue to engage the exception, just that the information concerns material in the course of completion, or unfinished documents or data, although, as noted below, there is still a requirement to then consider the public interest.
18. Article 9(2)(c) of the AIE Regulations must be read alongside article 10 of the AIE Regulations:
i. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal.
ii. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.
iii. Article 10(5) of the AIE Regulations provides that nothing in articles 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
iv. Article 10(6) of the AIE Regulations states that where a request is refused pursuant to article 9(2)(c) because it concerns material in the course of completion, the public authority shall inform the applicant of the name of the authority preparing the material and the estimated time needed for completion.
19. When relying on article 9(2)(c) of the AIE Regulations, the public authority should explain why the information at issue falls within the scope of the exception, outlining which limb(s) of the exception is being relied upon. It is then for the public authority to weigh the public
interest served by disclosure against the interest served by the refusal as is required by articles 10(3) and 10(4). I note the comments of the CJEU in Case C 619/19 , Land Baden-Württemberg v DR (Land Baden-Württemberg):
“…[A] public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical .” (paragraph 69)
20. At the outset, it is important to note that this article allows for the withholding of information under two categories, “material in the course of completion ” and “unfinished documents or data ”. It has been established that the first of these categories applies only to documents that are being actively worked upon at the date of a request. The explanation of this term in the Aarhus Guide notes that “the words ‘in the course of completion’ suggest that the term refers to individual documents that are actively being worked on by the public authority. Once those documents are no longer in the course of completion they may be released, even if they are still unfinished and even if the decision to which they pertain has not yet been resolved. “In the course of completion ” suggests that the document will have more work done on it within some reasonable timeframe. I acknowledge that the Aarhus Guide is an aid to interpretation rather than a binding document. However, its interpretation accords with the wording of article 4(1)(d) of the AIE Directive and article 9(2)(c) of the AIE Regulations, both of which, importantly, extend the exemption in the Aarhus Convention to information that constitutes “unfinished documents or data ” at the date of a request.
21. The terms “material in the course of completion ” and “unfinished documents or data ” are not defined in the AIE Regulations, AIE Directive, or the Aarhus Convention. However, the decisions of the CJEU in Land Baden-Württemberg, and Case C-234/22 , Roheline Kogukond MTÜ and Others v Keskkonnaagentuur (Roheline Kogukond MTÜ), provide some guidance on the exception.
22. While Land Baden-Württemberg more specifically concerned the internal communications exception, the Court indicated that both the internal communications exception and the exception concerning material in the course of completion and unfinished documents or data are “intended to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions ” (see paragraph 44).
23. The first question I must consider therefore, is whether or not article 9(2)(c) of the AIE Regulations is engaged on the basis that the information at issue “concerns material in the course of completion, or unfinished documents or data ”. It is my view that “material in the course of completion ” relates to the process of preparing information/documents. The Aarhus Guide states that “the expression ‘in the course of completion’ relates to the process of preparation of the information or the document and not to any decision-making process for the purpose of which the given information or document has been prepared .” I consider that this exemption may apply in two ways, firstly to information that is itself in the course of completion or unfinished, but secondly to information that while not itself material in the course of completion or unfinished, sufficiently concerns the material in the course of completion or unfinished information.
24. In assessing whether the information at issue concerns material in the course of completion, I am of the view that it is necessary to identify material that is actively being worked upon, be able to explain why, and how, the information at issue concerns that material, and consider whether the information at issue is a separate and independent piece of work to that material – if the information at issue is a separate and independent piece of work, the exception will not be applicable. I also consider that the material that is actively being worked upon must have a physical existence (it cannot be something that does not have a physical existence (e.g. a project, exercise or process, although it can be part of same). For example, an overarching project, even if it is not complete, cannot be considered to be material in the course of completion, however individual documents that form part of the project might be if they have not yet been completed.
25. I consider that “unfinished data ” is data that a public authority is still collecting at the time of the decision. Again, in assessing whether the information at issue concerns “unfinished data ”, I am of the view that it is necessary to identify the data that is actively being collected, be able to explain why, and how, the information at issue concerns that data, and consider whether the information at issue is a separate and independent piece of work to that data – if the information at issue is a separate and independent piece of work, the exception will not be applicable. Whether data can be considered to be unfinished depends on the circumstances. I consider that data which is part of routine monitoring, even if it has not been analysed or validated, may not generally be regarded as part of ongoing unfinished data collection.
26. In this case the appellant has sought figures with respect to planning permissions granted for three settlements, within the timeframe of the current County Development Plan. The Council did not contend in its responses to the appellant that the data itself was unfinished, nor that it did not possess the data, but rather that it was undertaking a body of work, through which this data, would be reviewed, to inform the 2-year Progress Report of the County Development Plan and therefore the information was ‘in the course of completion’.
27. It is factually accurate to state that the Council have access to the raw data with respect to planning permissions granted within county settlements. The Council carry out the statutory function of adjudicating on planning applications and award planning permissions. These permissions are, as the Council itself states, publicly available on the e-planning portal. While difficult to extract from an end-user point of view, given that they are mixed in with all other planning applications for the County, which the Council itself noted in the internal review decision, the specific data requested by the appellant is held and could be extracted for the purposes of such a request, by the Council, who maintain the records on the planning e-portal and who, it would be reasonable to assume, have an internal data set which informs the e-portal.
28. I consider that the data falling within the scope of the request- planning permission figures- cannot be considered as ‘unfinished ’, as this is quantitative numerical information which does not require any review, additions or redactions in and of itself to be identifiable. The Council have not suggested that the process of collecting or collating this information was not ongoing at the time of the request.
29. I have considered the fact that this data forms part of an ongoing process of review with respect to the 2-year County Development Plan update. However, I find that this does not confer on it either the quality of being material in the course of completion or of unfinished data. That the figures requested would be reviewed as part of a wider process to identify housing capacity in the context of the Council’s Core Strategy, does not make the figures themselves unfinished or in the course of completion. It is only documents, and not processes, that attract the protection of article 9(2)(c). While the review of the Council’s Core Strategy may have been ongoing at the time of the request, I do not consider that the information sought sufficiently concerns this review to the extent that the exemption contained in article 9(2)(c) applies. It is important to note that while the Council refer to the body of work being undertaken as part of the 2-year progress report to consist of identifying “the number of residential units that were granted permission and completed/substantially completed prior to the commencement of the Core Strategy ” this does not reflect the actual information requested by the appellant. The appellant has asked for permissions granted, not data relating to the completion of units.
30. In all the circumstances of this case, I am not satisfied that there is a sufficient basis to conclude that the information at issue is unfinished data or concerns material in the course of completion.
31. Accordingly, as these records cannot benefit from the exemption provided for in article 9(2)(c), there is no requirement to consider the provisions contained in article 10 of the AIE Regulations.
32. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Council’s decision. As the information was released by the Council during the course of this investigation, I make no further direction.
33. 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