Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-129542-X0K1C8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council were justified in refusing release of information under article 9(1)(b) of the AIE Regulations
1. The request in this case arose out of emergency in-stream works carried out by the Council during August 2022 at the N59 Kylemore Bridge, Connemara, Co. Galway (“the works”).
2. The appellant wrote to the Council on 10 August 2022 noting that works were taking place in an area located in The Twelve Bens/Garraun Complex Special Area of Conservation (SAC). The appellant expressed concern that the works may have commenced without an Appropriate Assessment, and moreover that the works may have an adverse effect on the integrity of the SAC site, including the interests of the endangered freshwater pearl mussel species.
3. The Council responded to the appellant, by letter dated 10 August 2022, with some information on the works, which it confirmed had commenced on Monday 8 August 2022 pursuant to the provisions of the Local Authority (Works) Act 1949, adding that the majority of works had already been completed and that the site was due for vacation by close of business on Friday 12 August 2022.
4. The Council’s response included the following statement: “The Council considers that due to a significant quantity of material deposited by the Polladirk river on its lower slopes around the bridge, the capacity under the bridge is severely restricted. This poses a serious safety issue at the bridge given that flash flooding of the N59 is occurring on a regular and ongoing basis. This presents a clear and present danger to road users and the Council has a duty and obligation to take such action as it deems necessary to preserve life.” The response also noted that an independent ecologist had been engaged prior to the commencement of the works “to complete an environmental method statement and to be present during the currency of the works” and that prior notice of the works had been provided to the National Parks and Wildlife Service.
5. Following receipt of the Council’s response, also on 10 August 2022, the appellant, through its solicitor, submitted an AIE request seeking access to the following specific items of information:
“- The Order of the Chief Executive of Galway County Council authorising the works under the Local Authorities (Works) Act 1949.
6. The appellant stated that the AIE request was being made “… with particular regard to the requirements of article 5(3) of the Aarhus Convention, in light of the imminent threat to human life cited by the Council for the undertaking of the works”. It appears that the appellant in fact intended to refer to article 5(3) of the AIE Regulations which provides that “in the event of an imminent threat to human health or the environment, whether caused by human activities or due to natural causes, a public authority shall ensure that all information held by or for it, which could enable the public likely to be affected to take measures to prevent or mitigate harm, is disseminated immediately and without delay”. The appellant also requested that the information be shared as soon as same was accessed by the Council in order to properly inform potential legal proceedings which may be brought against the Council, for the purpose of preventing or mitigating environmental harm to the area in question.
7. The request was refused by the Council under article 9(1)(b) of the AIE Regulations in a decision dated 8 September 2022. The full decision of the Council stated that “environmental information relating to anything which may be the subject matter of any legal proceedings, or of any formal inquiry (whether past or present), or any preliminary investigation, may be refused”.
8. The appellant immediately sought an internal review of this decision on 8 September 2022. In the request, it noted that the original decision refused the request in its entirety without any stated consideration of the individual items concerned and with no schedule of records provided to indicate what information was held, and what was being withheld, and on what basis. The appellant also noted that no information was provided to indicate what legal proceeding or formal inquiry was involved or how the information concerned could prejudice same, nor was any consideration given to the necessary public interest test.
9. The Council issued an internal review decision on 6 October 2022. This decision made available a schedule of records consisting of twenty-two (22) records which the Council considered relevant to the appellant’s AIE request.
10. Three (3) of these records were listed as granted – (numbered records 1., 2. (a) and 2. (b)), each with a note stating that “[the] document has previously been issued to the Requestor by the [Council] Law Agents and is also attached for ease of reference”.
11. The remaining nineteen (19) records – (numbered records 2., 3., 4., 5., 6., 7., 8., 8. (a), 9., 10., 11., 12., 13., 14., 15., 16., 17., 18. and 19.), which consisted of groups of email correspondence, were withheld on the basis of the ground for refusal set out at article 9(1)(b) of the Regulations which provides that a public authority may refuse access to environmental information where disclosure would adversely affect the course of justice.
12. An appeal to this Office was accepted on 14 October 2022 and both parties were invited to make submissions by 28 October 2022 in support of their respective positions.
13. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to all submissions made by the appellant and the Council. I have also taken account of submissions from a relevant third party in this matter.
In addition, I have had regard to:
14. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
Positions of the Parties
15. The appellant made submissions to this Office on 7 October 2022 and 17 January 2023. The appellant argued that the outcome of its request for internal review “did not alter the original decision in any way, save acknowledging that a limited number of documents had already been released outside of the AIE process”. The appellant submitted that the Council failed to properly engage with the request or give proper consideration to the individual elements of the request, thereby effecting a ‘blanket refusal’ of the information requested.
16. The appellant argued that the response received from the Council, dated 10 August 2022, in relation to the works, in particular wherein it was stated that the situation “… presents a clear and present danger to road users and the Council has a duty and obligation to take such action as it deems necessary to preserve life”, actuated responsibilities under article 5(3) of the AIE Regulations. The appellant submitted that the Council did not address the requirements of article 5(3) to disseminate related environmental information “immediately and without delay”, in either the original decision or the internal review outcome concerning its AIE request. The appellant also commented that the request concerns emissions into the environment.
17. The appellant submitted that while both the original decision and the internal review outcome invoked article 9(1)(b) as a basis for refusal, neither provided any substantive justification for the decision. The appellant further argued that the Council had failed to give any consideration to the public interest test required under Article 10(3), (4) and (5) of the Regulations and drawing particular attention to the decision of the High Court in Right to Know v An Taoiseach [2018 IEHC 372 ] where the Court found that a public authority may refuse access to environmental information only where the requirements of the AIE Regulations have been substantively and procedurally adhered to (paragraph 80).
18. The appellant disputed that article 9(1)(b) provided grounds for refusal in this case, submitting that the Council’s decision provided no detail as to the nature of any legal proceedings or formal enquiry referred to, nor was there any detail provided as to how release of the information requested could prejudice same.
19. A submission from the Council was received by this Office on 28 October 2022 along with a copy of the records which were identified by the Council as within the scope of the request. The Council in its submission, provided further detail as to the basis for its refusal to provide records on the grounds of article 9(1)(b) and included a statement from the internal reviewer as follows:
“… I refused access to certain documents on the basis that I was aware that there were legal proceedings being initiated against the Council and I have confirmed that said proceedings now stand adjourned before the High Court... Documents that involve matters that are sub judicae [sic] are withheld as their release may prejudice the position of the council in the defence of legal proceedings in accordance with Section 9 (in this case the defence of the High Court challenge) … Given the High Court proceedings in being, my decision was that the position of the council as Local Authority had to be protected until the said proceedings were concluded.”
20. This Office wrote to the Council on 8 March 2023 seeking further information on its reliance on article 9(1)(b) of the AIE Regulation, including the nature of the proceedings referenced in the Council’s decision, the date of commencement of such proceedings and their current status.
21. On 26 April 2023 the Council amended its position and released additional information to the appellant along with a revised schedule of records. Two (2) additional records were released – (numbered records 12. and 16.). Fifteen (15) records were ‘part-granted’ with some redactions – (numbered records 4., 5., 6., 7., 8., 8. (a), 9., 10., 11., 13., 14., 15., 17., 18. and 19.), with reference to protection of commercial sensitivity and personal information under the Freedom of Information Act 2014. Two (2) records remained listed as withheld in full (numbered records 2. and 3.) on the basis of article 9(1)(b) of the AIE Regulations.
22. The Council followed up with a brief submission to this Office on 28 April 2023. Firstly, the Council submitted that the redactions applied to those now ‘part-granted’ records were “warranted under GDPR and the release of personal information has no public value”.
23. The Council also provided details of the proceedings referenced in the Council’s decision making in respect of this AIE request, as follows:
The Council argued that numbered records 2. and 3. should not be released given the nature of the above separate sets of legal proceedings taken against the Council and currently before the Courts. The Council submitted that restricting release of the records in question was permissible on the basis of article 9(1)(b) of the AIE Regulations and having given consideration to the provisions of articles 10(3) and 10(4).
24. The Council submitted that the information did not impact on public interest but that release would adversely affect the course of justice. The Council went on to state that... “District Court prosecutions are criminal prosecutions and as such the liberty of a council employee may be at risk, if the Defendant (the Council) is found to be at fault and a conviction is recorded.”
25. At this point, this Office formed the view that the interests of a third party may be affected by any proposed disclosure of the environmental information concerned. On 2 May 2023, Inland Fisheries Ireland (IFI) was notified of the appeal at hand and given an opportunity to make submissions on potential disclosure of the information at issue.
26. The Investigator also wrote to the appellant on 8 May 2023 inviting further submissions with regard to the Council’s latest position. The appellant was also advised that this Office had sought submissions from IFI in its capacity as a third party who may be affected by the disclosure of information concerned.
27. The appellant made a further submission to this Office on 13 May 2023, in which it argued that “exceptions provided under the AIE Regulations reflect the protection of certain public and private interests, but these must be legitimate interests”, adding that “the protection of evidence of criminality cannot be a legitimate interest of a public authority.”
28. A submission from IFI was received by this Office on 16 May 2023. IFI submitted that the email correspondence records between IFI and the Council concerned should be withheld as they “relate to criminal proceedings which are in the process of being brought before the courts”, citing the provisions of article 9(1)(b) and article 8(a)(iv) of the AIE Regulations (with reference to section 32(1)(a)(i) of the Freedom of Information Act) as grounds for refusal, and having considered article 10(3) and 10(4).
29. IFI argued that release of the information concerned “at this time” may prejudice the outcome or impede its investigation through the premature release of sensitive documents that may be relied upon in court and it “may result in failure to prosecute”, therefore affecting the ability of IFI to carry out its statutory enforcement functions.
30. IFI submitted that the information was being considered to be used as evidence in criminal proceedings and that release “… would in no doubt impair the fairness of the investigation [and] would likely result in the premature release of evidence to potentially defending parties before a trial was to take place”. IFI noted that the incident in question had attracted a large media interest and on balance it considered that the public interest would be better served by not granting the release of the records “as it could possibly adversely affect the outcome of the trial by prejudicing any possible jury and or judge(s), especially if released to the media at large.”
31. IFI stated that in favour of release, it considered “the public interest in the public knowing how a public body performs its functions” and “the public interest in members of the public exercising their rights under the AIE Regulations.” In favour of refusal, IFI considered “the public interest in public bodies being able to perform their functions effectively”, “the impact of the public knowing how IFI conducts, investigates and takes proceedings”, and “the impact of the public knowing what evidence IFI holds in relation to an incident which has attracted a large amount of media interest before a trial was to take place.”
32. On 17 May 2023, the appellant was advised of the position of IFI and provided with an opportunity for further commentary. In correspondence received on 4 July 2023 the appellant restated its position, i.e. that release of the remaining information was in the public interest. The appellant also clarified that it was not seeking access to the redacted information in the now ‘part granted’ records.
33. As outlined above, the appellant also argued that its request related to information on emissions into the environment. Article 10(1) of the Regulations precludes reliance on article 8 and article 9(1)(c) of the Regulations where a request relates to information on emissions. In view of reference made by IFI to article 8(a)(iv) of the AIE Regulations as potential grounds for refusing release of information, the Investigator wrote to the Council and to IFI seeking their views as to whether this AIE request relates to information on emissions into the environment within the meaning of article 10(1) of the AIE Regulations
34. In a further submission to my Office dated 17 July 2023, IFI amended its previous position, withdrawing reliance on article 8(a)(iv) and referencing article 9(1)(b) solely as the basis for refusal of access to the information relevant to IFI.
35. On 19 July 2023, the Council provided a detailed submission to this Office, disputing that the appellant’s request related to information on emissions into the environment. It stated that “if the Commissioner nonetheless adopts a strained and unwarranted meaning of the term “emissions into the environment”, then… it is only the information on emissions into the environment that need to be disclosed and the information protected by article 9 (in this case regarding criminal proceedings) may be redacted provided it can be separated from the information on emissions into the environment.”
36. As I will set out in my findings below, the manner in which the Council engaged with this request under the AIE Regulations was entirely inadequate.
37. The initial decision did not provide sufficient reasoning for the Council’s reliance on article 9(1)(b) and the appellant was not provided with a schedule or list of records setting out the information identified as relevant to the request. A schedule of records was made available as part of the internal review decision in this appeal but no additional reasoning for the decision to refuse the appellant’s request was provided.
38. It is my view that the failure of the Council to provide sufficient reasoning in this case was further compounded by the formulation of the schedule of records eventually provided. The Council’s schedule made no attempt to indicate which parts of the appellants’ multi-part request had been addressed.
39. The schedule proffered by the Council identified twenty-two (22) records containing information relevant to the appellant’s request. Three (3) records were released at internal review stage. The remaining nineteen (19) records were reviewed by this Office as part of this appeal and have been observed to primarily contain various chains of email correspondence, some in no discernible order. On detailed analysis of these correspondence records, seventy-nine (79) individual emails are involved, following exclusion of duplicate emails. The description of these records as provided to the appellant, in terms of what/who they relate to or how they address the appellant’s request, was poor, and provides a misleading picture of the extent of the information held by the Council within the scope of the request.
40. The AIE Regulations do not contain an express duty on a public authority to provide applicants with a list, schedule or description of the information it holds when notifying an applicant of its decision.
41. The AIE Regulations and the AIE Directive do however, expressly oblige public authorities to provide reasons for decisions taken on an AIE Request. The High Court has also made it clear in Right to Know v An Taoiseach [2018 IEHC 372 ] 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” (paragraph 106). The Courts have also made it clear that the purpose of the duty to give reasons is to allow the individual affected by a decision to understand the basis for that decision and make an informed decision about whether to challenge it. Whether the duty to give reasons has been complied with by a public authority will depend on the specific circumstances of the case but it is difficult to conclude that this duty has been complied with by the Council in circumstances where the requester was not provided with sufficient knowledge of the information being considered by the Council as part of its decision.
42. In relation to the timeframe for decision making in respect of this individual AIE request, I draw the Council’s attention to article 7(10) which provides that in the performance of its functions under article 7, a public authority “shall…have regard to any timescale specified by the appellant”.
43. In this case, the appellant wrote to the Council on 10 August 2022 requesting that the information be shared “as soon as same was accessed by the Council”. The appellant received a response on 8 September 2022 which did not provide any information or deal with the request in any meaningful way, given the limited nature of the response. It is difficult to understand, on the basis of the response provided, why it was not provided to the appellant sooner. It is difficult to conclude that the Council complied with its obligations under article 7(10) of the Regulations.
44. 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 affirm, annul or vary it. Where appropriate in the circumstances of the appeal, I will require the public authority to make available environmental information to the appellant.
45. The Council originally refused access to 19 of the 22 records identified by it on the basis of article 9(1)(b) of the AIE Regulations. The Council amended its position during the course of this appeal and released a large amount of additional information to the appellant. The Council part-granted some of the records in question, redacting certain information from those records and referencing protection of commercial sensitivity and personal information under the Freedom of Information Act 2014. No exemptions under the AIE Regulations were cited in respect of the part-granted records. The redacted information included identities of interested members of the public as well as individual employees of companies who carried out work on behalf of the Council. However, the appellant has confirmed to this Office that it is not seeking access to the redacted information contain in the now ’part-granted’ records and therefore I will not consider this material further.
46. This leaves for consideration two (2) remaining records (numbered records 2. and 3.), each containing various groups of email correspondence records, such that each email shall require individual consideration. The Council continues to rely on article 9(1)(b) to justify refusal of these records in full.
47. As noted above, IFI was invited to make submissions as part of this appeal as a third party whose interests may be affected by the disclosure of the information at issue in this case. In its initial submission, IFI submitted that email correspondence between it and the Council should be withheld, citing the provisions of article 9(1)(b) and article 8(a)(iv) of the AIE Regulations (with reference to section 32(1)(a)(i) of the Freedom of Information Act). As outlined above, IFI later withdrew its reliance on article 8(a)(iv) and cited article 9(1)(b) only as a basis for refusal.
48. In submissions provided to this Office, the appellant commented that its AIE request concerns emissions into the environment. Article 10(1) of the Regulations provides that “notwithstanding articles 8 and 9(1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment”. However, as the Council did not seek to rely on article 8(a)(iv) in this case and IFI no longer considers this exception to apply, I do not consider it necessary to examine whether article 10(1) of the Regulations applies.
49. Accordingly, my review is concerned with whether the Council was justified in refusing access to numbered records 2. and 3. under article 9(1)(b) of the AIE Regulations.
Article 9(1)(b) – disclosure of information requested would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries)
50. The Council contends that the information contained in the numbered records 2. and 3. may be refused under article 9(1)(b) of the AIE Regulations. This provision states:
“9. (1) A public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect—….
(b) the course of justice (including criminal inquiries and disciplinary inquiries).”
51. This allows a public authority to refuse to make available environmental information where disclosure of the information requested would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries). The Minister’s Guidance on the implementation of the AIE Regulations suggests that the course of justice includes matters “relating to anything which is the subject matter of any legal proceedings, or of any formal inquiry (whether past or present), or any preliminary investigation”.
52. The wording of the article makes it clear that there must be some adverse effect on the course of justice in order for the exception to apply. Accordingly, when relying on article 9(1)(b) the public authority must set out the reasons why it considers that the disclosure of the information at issue could specifically and actually undermine the course of justice as set out by the CJEU at paragraph 69 of Land Baden-Wurttemberg v DR, Case C-619/19 . The risk of the course of justice being undermined must be reasonably foreseeable and not purely hypothetical.
53. Article 9(1)(b) of the AIE Regulations must be read alongside article 10, which provides for certain limitations on the ability of a public authority to refuse environmental information. Article 10(3) clearly provides that the request must be considered on an individual basis with the public interest served by disclosure weighed against the public interest served by refusal. Also, article 10(5) 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.
54. The requirements outlined above mean that a public authority must examine the information in question before it can invoke grounds for refusal of that information. Where grounds for refusal are identified, the information should be examined to determine whether certain information may be released without adversely affecting the course of justice. As set out by the appellant in correspondence with the Council and in its appeal to this Office, it is not appropriate to apply the exemption in a blanket fashion to records identified as relevant to a request.
55. The Council did not provide any detail to the appellant to indicate the basis on which it considered the course of justice might be adversely affected by release of the information requested. Indeed, the Council only identified the legal proceedings at issue in submissions to this Office on 28 April 2023, by confirming the existence of two separate sets of legal proceedings taken against the Council, being a Judicial Review application before the High Court and a District Court prosecution case, initiated on the 12 October 2022 and 1 February 2023 respectively. At this time, the Council also submitted that article 10(3) had been considered, “… and for the final two documents withheld (re court proceedings), they do not impact on public interest but their release would adversely affect the course of justice”.
56. The Investigator queried the precise basis on which the Council considered that the information refused for release constitutes information which “would adversely affect… the course of justice” within the meaning of article 9(1)(b) of the AIE Regulations, having regard to the restrictive test mandated by article 10(4). The Council’s response was that “District Court prosecutions are criminal prosecutions and as such the liberty of a council employee may be at risk, if the Defendant (the Council) is found to be at fault and a conviction is recorded.”
57. The appellant has interpreted the Council’s reliance on article 9(1)(b) of the AIE Regulations as “the protection of evidence of criminality”. It is not the function of this Office to make findings as to allegations of criminality and the decision in this case should not be read as an attempt to do so. That being said, the submissions made by the Council do not, in my view, establish a reasonably foreseeable risk that release of the information requested will adversely affect the course of justice. The Council has simply made a general statement as to what the outcome of a set of legal proceedings could be. It is also not clear how the liberty of an employee would be put at risk by the recording of a conviction against the Council.
58. Having reviewed the information at issue in this case, it is not clear to me how the Council has satisfied itself that grounds for refusal could be said to apply to each piece of information contained in numbered records 2. and 3. in accordance with its obligations under article 10(5). The Council has made a blanket assertion that release of all information in the remaining records would have an adverse impact on the course of justice. A review of these records, as contained at Appendix 1 of this decision, demonstrates that this is not the case, not least as some of the information has in fact already been provided to the appellant.
59. The records concerned comprise thirteen (13) individual emails, following exclusion of duplicate emails. One (1) email has already been released to the appellant as part of the Council’s amended position taken on 26 April 2023. Of the remaining twelve (12) individual emails, there is some information to which article 9(1)(b) of the AIE Regulations might be said to apply. Included in this are five (5) individual emails which contain correspondence between the Council and IFI and which are the subject of third party submissions in this appeal.
60. In summary, I find that there are two main issues with the manner in which the Council has sought to rely on the exemption provided for in article 9(1)(b). Firstly, the Council has made no effort to set out how disclosure may adversely impact the course of justice. Merely stating a connection to ongoing proceedings is not sufficient to engage the provisions of article 9(1)(b) and does not automatically render records exempt from release. Secondly, the Council has sought to apply the exemption in a blanket manner. It has failed to adequately consider the question of partial disclosure in accordance with article 10(5) or 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.
61. Having reviewed the information at issue in this case, I am of the view that it is possible and reasonable to differentiate, or categorise, the information the Council seeks to withhold on the basis of article 9(1)(b).
62. The first category is one which the exception provided by article 9(1)(b) clearly would not apply, on the basis that it is extremely difficult to envisage any circumstances in which disclosure of such information would adversely affect the course of justice. In terms of this category, the Council seeks to rely on article 9(1)(b) to refuse information which was in fact provided to the appellant by the Council on 26 April 2023, being notification of the works by the Council to IFI. The Council also relies on article 9(1)(b) to withhold a very similar works notification issued to another public body – the National Parks and Wildlife Service (part of the Heritage Division of the Department of Housing, Local Government & Heritage). There is no information before me to suggest that release of information within this first category would give rise to a reasonably foreseeable risk of an adverse effect on the course of justice.
63. A second category of information can be identified to which article 9(1)(b) might be said to apply. This includes email correspondence between Council staff, consultants engaged by the Council, and between the Council and IFI concerning IFI’s investigation.
64. The Council referenced two separate sets of legal proceedings which, in its view, restrict the release of information. It initially submitted that release may prejudice the position of the Council in the defence of judicial review proceedings. When invited by this Office to elaborate further, it submitted only a generic statement relating to the criminal prosecution matter. The Council has not provided any actual detail as to how release of the information could be reasonably expected to adversely affect either set of legal proceedings.
65. IFI also submitted that article 9(1)(b) provides grounds for refusal of the correspondence between the Council and IFI identified by the Council as relevant to the appellant’s AIE request, arguing that release of the information would have an adverse effect on criminal proceedings initiated against the Council. However, I consider that it is not sufficient to simply highlight that legal proceedings are ongoing, I must be satisfied that disclosure of the information in question would give rise to a reasonably foreseeable risk of adverse impact on those proceedings.
66. IFI argued that the release of information “would likely result in the premature release of evidence to potentially defending parties before a trial was to take place”. However, as it would appear that the Council are the defending party and as it is already in possession of the information, it is not clear how release of information to the appellant would give rise to a reasonably foreseeable adverse impact on those proceedings. IFI also argued that the outcome of the trial could be adversely affected “by prejudicing any possible jury and or judge(s), especially if released to the media at large.” This would appear to me to amount to a hypothetical argument rather than setting out a reasonably foreseeable basis on which it could be said that a trial might be undermined. I would also consider that any pre-trial publicity issues are best left to be addressed by a trial judge in the normal way. I note in this regard that judges are not likely to look outside the evidence presented to them in a courtroom when reaching their verdict on a case and, indeed, their decision would be appealable were they to do so. In addition, it is now commonplace for judges to have to consider cases where there is significant public interest and comment on both traditional and social media. My understanding is that the criminal proceedings are District Court proceedings, and as such will not involve a jury. However, if there is a jury trial then the judge can deal with issues by directions to the jury in the normal way.
67. In my deliberations I have considered that article 9(1)(b) of the AIE Regulations seeks to implement Article 4(2)(c) of the AIE Directive, which is in turn based on Article 4 (4)(c) of the Aarhus Convention which states that:
“4. A request for environmental information may be refused if the disclosure would adversely affect —….
(c) The course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature.”
68. Having carefully considered the content of the withheld information, the information already disclosed to the appellant in the course of this appeal, and bearing in mind the criteria set out by the Court of Justice at paragraph 69 of its decision in Land Baden Württemberg, I am not satisfied that a reasonably foreseeable risk of an adverse impact on the course of justice has been established such that article 9(1)(b) might be said to apply to disclosure of the second category of information.
69. In reaching this conclusion, I note that much of the withheld information constitutes factual correspondence between parties in relation the works, and in the case of the correspondence records between IFI and the Council concerned, includes confirmation of certain investigation procedures – e.g. cautions administered, water samples taken. I can identify no basis for concluding that disclosure would prejudice the ability of any person to receive a fair trial or would give rise to a reasonably foreseeable adverse impact on the course of justice generally. Equally, given the nature of the information, I do not consider that disclosure would affect the ability of IFI to carry out its statutory enforcement functions.
70. In addition, at the latter stage of my review, the appellant provided evidence to this Office which indicated that the relevant criminal proceedings initiated by IFI against the Council in the District Court were to be withdrawn. The Investigator wrote to both the Council and IFI on 8 November 2023 seeking any further relevant submissions in the context of this development. The Council responded on 16 November 2023 submitting that any such development does not affect the position of the Council concerning the withholding of relevant identified records under article 9(1)(b) of the AIE Regulation. IFI confirmed to this Office on 18 December 2023 that its relevant criminal prosecution case had indeed been withdrawn.
71. I consider the Council’s position to be somewhat surprising given that, as outlined above, its submissions on the applicability of article 9(1)(b) focused heavily on the District Court proceedings and made no detailed reference to the basis on which it considered release of the information at issue in this case might give rise to a reasonably foreseeable impact on the High Court proceedings. Notwithstanding that I do not consider the information before me to warrant a conclusion that release of the information in this case would give rise to a reasonably foreseeable adverse impact on either the High Court or the District Court proceedings, the discontinuance of the District Court proceedings strengthens the basis for my conclusion that release of the second category information I have identified would not give rise to a reasonably foreseeable adverse impact on the course of justice.
72. Lastly, a third category of information is distinguishable in the records provided to this Office which consists of correspondence between the Council and its Law agents and which may be entitled to the benefit of legal privilege.
73. Legal advice privilege applies to confidential communications between a professionally qualified lawyer and a client for the purposes of obtaining or providing legal advice. The case law on legal advice privilege generally recognises that failure to provide for such privilege may adversely affect the administration of justice such that “where it is established that a communication was made between a person and his lawyer acting for him as a lawyer for the purpose of obtaining from such lawyer legal advice, whether at the initiation of the client or the lawyer, that communication made on such an occasion should in general be privileged or exempt from disclosure, except with the consent of the client” (Smurfit Paribas Bank Limited v AAB Export Finance Limited [1990] 1 IR 469 at paragraph 31).
74. I note that the case law also makes it clear that the onus is on the party asserting privilege to justify that claim. In this case one of the relevant correspondence items is headed – “Legally Privileged/For the purposes of obtaining legal advice”. Although the Council has not specifically asserted such privilege, it has relied on article 9(1)(b) in respect of the entirety of the information concerned.
75. I have reviewed the information in question against the four conditions considered necessary for legal advice privilege to apply (see Lyons v O’Mahoney [2017] IEHC 649);
76. With respect to i. – iii., I take the view that these conditions have been met. In relation to the final condition, insofar as the communication must have been made for the purposes of giving or receiving of legal advice, I have given this particular consideration. Whilst I note that neither of the records in question specifically seek advice or input from the lawyers to whom the correspondence is addressed, it is my view that the context of same does imply that the Council were seeking legal advice and with one of the records referenced as a follow-up communication to a meeting held between a Council employee and their lawyer, at which one can assume certain legal issues were discussed. It is clear to me therefore, that these records satisfy the four conditions necessary for legal advice privilege to apply.
77. I am therefore satisfied that the disclosure of the information identified in this category would adversely impact the course of justice, as it would undermine the general assurance that correspondence with one’s legal advisor will remain confidential. However, I must also consider whether the interest in withholding the relevant information is outweighed by the public interest in its disclosure having regard to the provisions of article 10(3) and 10(4) of the Regulations.
78. In considering the public interest served by disclosure in this case, I am mindful of the purpose of the AIE regime, as reflected in Recital 1 of the Preamble to the Directive, which provides that:
“Increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision making and, eventually, to a better environment.”
79. There is undoubtedly a strong public interest in transparency as to how public authorities carry out their functions with regard to environmental factors and even more so where potential failure to exercise those functions appropriately might give rise to significant adverse environmental impact.
80. That said, I have found a significant amount of the information requested by the appellant should be provided thus lessening the weight of the general transparency argument with regard to these particular records. The AIE regime also acknowledges that there may be exceptions to the general rule of disclosure of information, one such case being where disclosure may adversely impact the course of justice. Albeit that the Council has made little effort to establish its entitlement to refuse the information in accordance with the provisions of the AIE Regulations, I do not consider it to be in the public interest for a public authority to lose the benefit of legal advice privilege simply because that authority did not adequately address the importance of its protection. In this case, I consider that the public interest weighs in favour of allowing the Council to maintain legal advice privilege over the information concerned which is identified at Appendix 2 to this decision.
81. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Council’s decision in this case. I direct the Council to release the remaining information identified as relevant to the appellant’s request, with the exception of legally privileged information which I consider to be subject to the exception contained at article 9(1)(b) of the AIE Regulations.
82. For the avoidance of doubt, the information which is considered exempt for release is listed at Appendix 2 to this decision.
83. 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.
Ger Deering, Commissioner for Environmental Information