Cinneadh
Mr. F and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-126581-X1N5N0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-126581-X1N5N0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in withholding some of the information sought by the appellant through his AIE request
23 May 2024
1. On 19 April 2022, the appellant requested “A copy of the final project report and the GIS database produced as an output of the HYDROFOR project “Assessment of the impacts of forest operations on the ecological quality of water”
2. On 18 May 2022 the Department responded, advising the appellant that “Having considered your request, my decision is to refuse you access to the information sought as the document you requested does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken”
3. The appellant requested an internal review of this decision on 3 June 2022.
4. The Department responded on 27 June 2022, varying the original decision and providing the appellant with a link to the relevant report which had been published by the EPA, while making no reference to the accompanying GIS database which was also requested.
5. In subsequent correspondence between the appellant and the Department the appellant questioned why the decision had not referred to or provided a copy of the requested associated GIS database and asked the Department to clarify if the decision was to refuse access to the database and if so, on what grounds.
6. The Department informed the appellant on 29 June 2022 that “Databases such as the GIS here clearly do not fall in the scope of the AIE provisions. The matter is now closed and if you wish to appeal the decision you are welcome to do so.”
7. The appellant appealed to my Office on 25 July 2022.
8. I have now completed my 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 of Agriculture, Food and the Marine. In addition, I have had regard to:
9. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, the Commissioner will require the public authority to make available environmental information to the appellant.
10. The appellant submits that the Department has not provided him with any reasoning as to why part of his request has not been fulfilled and there is no reasoning as to why the information requested is not environmental information. The appellant contends that “Project documentation clearly indicates that a GIS database was produced as part of the project. In my view this information has been refused with no reason cited under the Regulations. Appendix 3 of the Hydrofor project report states;
“Metadata for each of the worksheets in the HYDROFOR Database and a screenshot of the integrated Interactions Data worksheet are shown. Co-ordinates for sample sites are not included in the dataset because a companion directory of geographic information system (GIS) shape files is available with the spreadsheet-based database ”
11. In its submission to this Office the Department does not explain why no reference to the accompanying GIS database which was also requested was contained in the internal review decision, the submission also fails to address the position which was communicated to the appellant following notification of the internal review decision that “Databases such as the GIS here clearly do not fall in the scope of the AIE provisions.” These submissions also sought to rely on article 8(a)(iii) of the AIE Regulations, which had not been relied upon in the original or internal review decisions.
12. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and 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.
13. The judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 371 notes 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”.
14. This view aligns with the decision of the Court of Justice of the EU in C-619/19 Land Baden Württemberg v DR. This decision contains some useful guidance in relation to the application of exceptions generally. The CJEU noted in particular, at paragraph 69 of its judgment: “As the Advocate General has observed in point 34 of his Opinion, [the] obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, 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.”
15. Having reviewed the decision-making records in this case, I consider that the Department did not provide adequate reasons for its refusal to provide the appellant with the information sought. Given the contrast between the internal review decision issued by the Department, the correspondence with the appellant following the internal review decision and the subsequent reliance of the Department on the exception provided for under article 8(a)(iii) of the AIE Regulations which was not communicated to the appellant at any stage of the process, this Office’s investigator engaged with the Department to seek clarity on its position.
16. The Department advised that given the passage of time since the internal review and the subsequent correspondence that its position has changed and the Department has now requested that this case be remitted to it by this Office for a new internal review process to be carried out.
17. I am satisfied that given the time that has passed since this appeal was received by this Office, the AIE regime is best served by dealing with this case in this manner. This Office is facing a significant backlog of cases, and therefore where it is appropriate for a public authority to review its decision in a particular appeal, this may allow for the matter to be dealt with in a more efficient manner. Accordingly, I annul the internal review decision in this appeal. The Department should provide the appellant with a new internal review decision in respect of this request. If the appellant remains dissatisfied with this new decision, he may make a new appeal to my Office.
18. 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 internal review decision of the Department. The result of this decision is that a new internal review process should be carried out by the Department under article 11 of the AIE Regulations.
19. 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