Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-156922-P4D4M1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department were justified in refusing the information requested on the basis of article 8(a)(iv) and 9(2)(c).
16 June 2025
1. On 5 December 2024, under the AIE Regulations, the appellant requested:
“Access to various submissions to the draft 2019 wind energy development guidelines, specifically those made by the following: MAS Environmental, the Institute of Acoustics, Wind Energy Ireland, the Environmental Protection Agency, the Office of Planning Regulator, Eirgrid, CRU, Limerick City and County Council, any and all local authorities”.
2. On 2 January 2025 the Department issued its original decision which identified 18 records coming within the scope of the request and refused access to all of them, under article 8(a)(iv) of the Regulations, stating:
“The Department is currently undertaking a review of the Wind Energy Development Guidelines (2006). As part of this process, a public consultation was held on draft Guidelines over the period 12 December 2019 to 19 February 2020. Since the conclusion of the public consultation, the Department, in conjunction with the Department of the Environment, Climate and Communications, which has primary responsibility for environmental noise matters, has been working to advance guidance on the noise aspect of Guidelines, which is highly technical in nature. The review is an iterative and ongoing process and submissions received as part of the 2019 public consultation remain under active consideration in this regard. The Department is working to bring the review process to a conclusion as soon as possible”.
3. In referring to the public interest test required under article 10 of the Regulations, the Department further stated:
“In accordance with Articles 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 considered the public interest issues that arise in this case and have taken account of the following factors in favour of release:
• The ability of members of the public to exercise their rights under the AIE Regulations
• The need for openness and transparency in how public bodies come to decisions
In considering the public interest factors that favour withholding the records, I have taken account of the following:
• The ongoing proceedings of the Department with regards to the review of the Wind Energy Development Guidelines
• The need to ensure a public body is able to perform their functions effectively
• The premature release of these records compromising the ongoing and evolving decision making process
As previously mentioned, the Department is still in the process of reviewing the Wind Energy Development Guidelines (2006). The records requested relate to the 2019 public consultation undertaken as part of the review process and remain part of the process in this regard.
On balance, I have determined that the public interest would not be served by disclosing the information requested while the review of the Wind Energy Development Guidelines (2006) remains ongoing. It is the Department’s position that the documents requested form an active part of the review process and could not be released without jeopardising the proceedings of the Department as a public body and the ability of the Department to perform its functions with regard to the preparation of statutory planning guidelines”.
4. On 16 January 2025 the appellant requested an internal review decision of the AIE request.
5. On 14 February 2025 the Department issued its internal review decision which affirmed the original decision in refusing access to the records. The Department noted its reliance on article 8(a)(iv) in refusing release of the information and, reiterated the public interest test considerations previously outlined in the original decision.
6. The appellant appealed to this Office on 25 February 2025 on the basis of their view that the Department was incorrect in its internal review decision, details further outlined in the ‘Position of the Parties’ section in paragraph 10 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 Department of Housing, Local Government and Heritage. In addition, I have had regard to:
• 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);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• 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
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
8. 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, I will require the public authority to make available environmental information to the appellant.
9. The scope of this review concerns whether the Department was justified in refusing access to the 18 records it identified within the scope of the request, under article 8(a)(iv) and 9(2)(c) of the AIE Regulations.
10. In their submission to this Office, the appellant contended their view that that the public interest in releasing the information outweighs the interest noted by the Department in refusing to release, stating:
“The Department suggested there is an ongoing process; the 'review' of the wind energy development guidelines (WEDGs) have been ongoing for more than 12 years and many documents have been released as NEW, separate reviews commenced. Public participation is crucial and withholding records prevents informed engagement. I don’t agree that the proceedings are ongoing and I request that documents be released. Separately, the Department justification due to the potential harm to an ‘ongoing’ review with no clear evidence of this. Transparency enhances public bodies' effectiveness by ensuring accountability and fostering trust in decision-making. The records reflect expert opinions, consultations, etc, their release would improve the decision-making process. The Aarhus Convention requires authorities to actively disseminate environmental information, not just release it at the end of a process”.
11. The appellant provided further detailed submissions in respect of their view relating to the public interest in releasing the records which included observations on public health considerations, public participation and democratic accountability and precedent for disclosure in previous OCEI decisions, alongside their contention that the information requested is no longer in ‘draft form’ and, their view that the Department had failed to evidence actual harm from releasing the records, which is required when relying on article 8(a)(iv).
12. The Department was invited to make submissions with respect to the appeal and on 4 April 2025 these were received, with the Department stating that:
“Access to these records was refused further to the provisions of article 8(a)(iv) of the AIE Regulations. In this regard, the Department relied on the provisions of section 29(1)(a) of the Freedom of Information Act 2014 as the records concerned contained matters relating to the deliberative processes of the Department. The Department came to this decision because the review of the Wind Energy Development Guidelines is a single continuous, iterative process and the submissions requested remain under active consideration as the Department works to finalise fit-for-purpose statutory planning guidelines for the development of wind energy. With regard to the process to review the 2006 Wind Energy Development Guidelines, the Department commenced a targeted review of the Guidelines in late 2012. As part of this review process, proposed draft revisions to the noise, setback distance and shadow flicker aspects of the 2006 Guidelines were published for public consultation in December 2013. The submissions received as part of this public consultation process informed the progress of the review.
In June 2017, a “preferred draft approach” (PDA) to the review of the 2006 Guidelines was announced to update the general public, stakeholders and planning authorities on the progress made and timetable for conclusion of the review, in light of the elapse of time since the review commenced in late 2012. The PDA addressed a number of key aspects including noise, setback, shadow flicker, community obligation, community dividend and grid connections.
Further to the PDA, Draft Revised Wind Energy Development Guidelines were prepared and published for public consultation in December 2019. The records the subject of AIE-139-2024 are submissions received as part of this public consultation. Since the passing of the deadline for the submissions as part of this public consultation process, the Department and the Department of Environment, Climate and Communities (DECC), which has primary responsibility for environmental noise matters, have been working to advance guidance on the noise aspect of the Guidelines, which is highly technical in nature. The submissions received as part of the public consultation continue to form a key consideration of this work and are under active consideration in this regard.
To assist the work of the two Departments in this regard, DECC appointed noise consultants in May 2023 to inform any amendments to the noise aspect of the Guidelines. Again, the submissions received as part of the 2019 public consultation form a key consideration of the work being undertaken by the noise consultants. As the Minister for Housing, Local Government and Heritage has outlined in recent responses to Parliamentary Questions in the Dáil, the work on the noise aspect of the Guidelines remains ongoing, and, as outlined, the submissions remain a key consideration in this regard.
I also wish to highlight at this juncture that, as part of the review process, it has been determined that, in accordance with the European Strategic Environmental Assessment (SEA) Directive, as transposed into national legislation, the SEA process is applicable and a draft SEA Environmental Report is in preparation. The 2019 public consultation on Draft Revised Wind Energy Development Guidelines was undertaken as part of the SEA process. SEA is a holistic and iterative process and a draft Environmental Report was published alongside the draft revised Guidelines as part of the public consultation. The SEA and the review of the 2006 Guidelines is ongoing in tandem. As part of the SEA process, the Department intends to undertake a further public consultation on updated draft Guidelines before they are finalised. The SEA will inform the preparation of the final version of updated Guidelines”.
13. In reference to the Department’s obligation under article 10 of the Regulations, it stated:
“In making its decision in relation to AIE-139-2024, the Department considered the public interest requirements under article 10 of the AIE regulations. In accordance with article 10(3) and article 10(4) of the AIE Regulations, the Department considered the request on an individual basis and weighed the public interest served by disclosure against the interest served by refusal and interpreted the grounds for refusal of the request on a restrictive basis having regard to the public interest served by disclosure.
In this connection, the Department had regard to the ability of members of the public to exercise their rights under the AIE Regulations and considered the need for openness and transparency in how public bodies come to decisions. The Department also had regard to the fact that the review of the Wind Energy Development Guidelines remains ongoing, in particular with regard to the work on the noise aspect of the review. In addition, the Department considered the need to ensure that it is able to perform effectively its functions in respect of the review of the Guidelines without having its ongoing and evolving decision-making process compromised.
As outlined, the submissions received as part of the 2019 public consultation remain under active consideration by the Department and form a key part of the ongoing review process. As part of the review process, the Department must balance a variety of legitimate but often times opposing interests. For instance, the inherent trade-offs between the concerns of individuals and communities regarding the possible impact of wind energy development on the one hand and critical national concerns around energy security and European and domestic renewable energy targets as well as the need to comply with EU law on the other.
The Department needs to be able to make the appropriate considerations in weighing up all relevant factors, including submissions received, in a protected space without having outside stakeholders seeking to influence unduly the deliberative process in the public domain. In this regard, the premature release of the records requested risked compromising the ongoing and evolving decision-making process.
On balance, therefore, the Department determined that the public interest would not be served by disclosing the records requested while the review of the 2006 Wind Energy Development Guidelines remains ongoing. To do so would jeopardise the proceedings of the Department and its ability to perform its functions with regard to the preparation of statutory planning guidelines.
As such, the Department made the decision to refuse to release these records as they contain matters relating to the ongoing deliberative process of the Department. Having made its decision to refuse this request, the Department notified the applicant of its decision within the appropriate timeframe, specified the reasons for the refusal, and informed the applicant of her rights of internal review and appeal as required under article 7(4) of the AIE Regulations.
It should be noted that the Department is working to prioritise the finalisation and publication of updated Wind Energy Development Guidelines. As part of this process, the Department is working to prepare updated Draft Guidelines for public consultation. In this regard, once updated Draft Guidelines have been prepared for publication, the Department intends to publish all of the submissions received as part of the 2019 public consultation”.
Article 8(a)(iv) of the AIE Regulations
14. The Department is refusing access to the 18 records identified within the scope of the request, under article 8(a)(iv) of the AIE Regulations. On the schedule of records provided to the appellant, the articles are each described with a unique submission number, i.e.- “Submission number X from the public consultation on the Draft Revised Wind Energy Development Guidelines December 2019”, with no further detail given.
15. Article 8(a)(iv) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts).
16. There are a number of elements, which must be satisfied before a refusal of information under article 8(a)(iv) arises:
• The case must involve “proceedings” of public authorities
• Those proceedings must be the final stage of decision-making
• Those proceedings must have an element of confidentiality
• That confidentiality must be adversely affected by the disclosure of the information requested; and
• That confidentiality must be protected by law.
17. The public authority must demonstrate a clear link between disclosure of the specific information that it has withheld and any adverse effect. The risk of the confidentiality of the final stage of decision-making being undermined must be reasonably foreseeable and not purely hypothetical.
18. Article 8(a)(iv) of the AIE Regulations must be read alongside article 10 of the AIE Regulations:
• Article 10(1) of the AIE Regulations, provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment.
• 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 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.
19. In considering the application of article 8(a)(iv) to this appeal, the first step is to define the relevant “proceedings”. The term “proceedings” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, the CJEU in C-204/09 Flachglas Torgau GmBH v Bundesrepublik Deutschland set out that the concept of proceedings “refers to the final stages of the decision-making process of public authorities” (paragraph 63).
20. A similar conclusion was reached by the CJEU in C-60/15 Saint-Gobain Glass Deutschland v Commission. Although that case dealt with Regulations 1049/2001 and 1367/2006 rather than the AIE Directive, it considered the provisions of the Aarhus Convention, upon which both the AIE Directive and the AIE Regulations are based. The Court noted “…Article 4(4)(a) of the Aarhus Convention provides that a request for environmental information may be refused where disclosure of that information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law, and not the entire administrative procedure at the end of which those authorities hold their proceedings ” (paragraph 81). Also, Advocate General Szpunar in that case indicated that “the concept of ‘proceedings’ must be understood as covering only the deliberation stage of decision-making procedures” (see paragraph 51 of the Opinion).
21. In its submissions to this Office, the Department have failed to specifically elaborate on the ‘proceedings’ being relied upon in invoking article 8(a)(iv) beyond describing the process by which the 2006 Wind Energy Development Guidelines have been under review. This review began 13 years ago in 2012, with the most recent public consultation occurring in 2019. In this regard the Department have stated:
“The submissions received as part of the public consultation continue to form a key consideration of this work and are under active consideration in this regard”.
22. There has been no attempt by the Department to link the term ‘proceedings’ to any specific “final stages of the decision-making process” currently on-going, beyond the ‘active consideration’ of the submissions as part of the now 13 year-long review. It appears to contend that all stages of the review of the guidelines since the 2019 public consultation fall within the meaning of the term “proceedings” in the article. As indicated in the Saint Gobain case (at paragraph 20 above), this is an incorrect approach.
23. However, if I consider that the review of the Wind Energy Development Guidelines are the relevant proceedings, it is crucial to note that article 8(a)(iv) only protects the “final decision-making stage” of the process and not the entire administrative process leading up to that decision.
24. Having reviewed the submissions from the Department in this case, I am not of the view that submissions from a (now closed) public consultation dating back six years, as part of a broader review which has spanned 13 years, could plausibly be understood as forming part of the final stages of the decision-making process relating to this review.
25. Having regard to the above findings on ‘proceedings’, I cannot find that article 8(a)(iv) is applicable in this case.
26. I do wish to make a brief comment on the Departments reference to the FOI Act in its submission to this Office:
“Access to these records was refused further to the provisions of article 8(a)(iv) of the AIE Regulations. In this regard, the Department relied on the provisions of section 29(1)(a) of the Freedom of Information Act 2014 as the records concerned contained matters relating to the deliberative processes of the Department”.
27. The Department should note that the exemptions provided for in section 29 and 30 of the FOI Act are broader than the exemption provided for in article 8(a)(iv) of the AIE Regulations. It is clear from the relevant case law reference above that “proceedings” referred to in article 8(a)(iv) refers only to the final stages of the decision-making process of public authorities (Flachglas at para 63) and not to the entire deliberative process that may be encompassed by section 29 and 30 of the FOI Act, as per the Saint-Gobain case referred to in paragraph 20.
28. Accordingly, as these records cannot benefit from the exemption provided for in article 8(a)(iv), there is no requirement to consider the provisions contained in article 10 of the AIE Regulations.
Article 9(2)(c) of the AIE Regulations
29. While the Department have not explicitly invoked article 9(2)(c) in their submissions, in my view elements of this article are implied in statements it makes regarding the on-going process of the review as a reason to refuse release, in stating:
“The Department came to this decision because the review of the Wind Energy Development Guidelines is a single continuous, iterative process and the submissions requested remain under active consideration as the Department works to finalise fit-for-purpose statutory planning guidelines for the development of wind energy”.
30. 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.
31. To engage this article, the public authority must demonstrate how the information concerns “material in the course of completion” or “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.”
32. 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.
33. 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.
34. In this case, the appellant has sought submissions to the draft Wind Energy Development Guidelines from the 2019 public consultation, from a number of named sources. The Department have not contended that these submissions comprise of material in the course of completion, nor that they are unfinished documents, rather that it is undertaking a body of work, through which the submissions would be reviewed.
35. I consider that submissions made to the Department as part of a public consultation, now complete, cannot be considered as ‘unfinished’, as these submissions were completed by external bodies to the Department and were complete at the point of submission. I have considered the fact that these submissions form part of an ongoing process of review with respect to the draft Wind Energy Development Guidelines, however I find that this does not confer on them either the quality of being material in the course of completion or of unfinished data. This is particularly the case given the amount of time that has passed since these submissions were made.
36. That the submissions would be reviewed as part of a wider process to review the 2006 Guidelines, does not make the submissions 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 Guidelines 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.
37. 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.
38. Accordingly, I find the Department cannot rely on article 8(a)(iv) or 9(2)(c) in refusing release of the information requested, I annul the decision and direct release of the records identified.
39. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Departments’ decision and direct release of the records identified within the scope of the request.
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