Cinneadh
Ms. X and Department of Climate, Energy and Environment
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-161482-Q1H4W3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-161482-Q1H4W3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in withholding certain information under article 9(1)(b) of the AIE Regulations.
04 November 2025
1. On 25 March 2025, the appellant made a request to the Department under the AIE Regulations seeking access to:
“All correspondence and submissions made to the Attorney General by the Department of the Environment, Climate and Communications relating to the Wexford wind farm High Court case [2024] IEHC 136.
This request specifically concerns the case where Justice Emily Egan's judgment confirmed the impact of wind turbine noise constituted a nuisance. Please include any relevant emails, letters, reports, and documentation submitted as part of this process.”
2. On 24 June 2025, the Department issued its original decision, wherein it refused the appellant’s request and stated:
“I identified 1 record which is relevant to your request. I have decided to refuse access to this record, having regard to the provisions of article 8(a)(iv) of the AIE Regulations […]
I have made the decision to refuse access to this record, as the information contains matters relating to legal advice from the Office of the Attorney General and would be exempt from production in proceedings in a court on the ground of legal professional privilege.
I have attached a schedule of records with this letter. This lists the record that I consider relevant to your request. It provides a brief description of the record and the decision I have made on the record. Where I have decided to refuse or partially refuse access to a record, it specifies the Article of the AIE Regulations under which this refusal has been made. For this record, it also records how I have applied the public interest test pursuant to Article 10(3) and 10(4).[…]”
3. On 27 June 2025, the appellant sought an internal review of the Department’s decision. In doing so, the appellant contended that the Department had misapplied article 8(a)(iv). The appellant highlighted that the requested record is a departmental communication and the Department had not provided evidence that the content of said record“qualified as legal privileged advice nor that its disclosure would compromise ongoing or sensitive legal proceedings” . Also, the appellant submitted that the Department had failed to demonstrate that it had carried out the mandatory public interest balancing test under article 10 of the AIE Regulations.
4. On 17 June 2025, the Department issued its internal review decision, wherein it affirmed its original decision. The Department in its decision indicated that it was also relying on article 9(1)(b) of the AIE Regulations to refuse the appellant’s request.
5. The appellant submitted an appeal to my Office on 14 August 2025.
6. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
• 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’).
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. In accordance with article 12(5) of the AIE Regulations, my role 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 scheme of the AIE Regulations, and of the AIE Directive, makes it clear that there is a presumption in favour of release of environmental information. Subject to that presumption, a public authority may refuse to release environmental information where an exemption under articles 8 or 9 applies and the interest in maintaining that exemption outweighs the public interest in disclosure.
10. The scope of this review is solely concerned with whether the Department was justified in refusing access to the appellant’s request for“[a]ll correspondence and submissions made to the Attorney General by the Department relating to the Wexford wind farm High Court case [2024] IEHC 136.” under article 9(1)b) of the AIE Regulations.
11. While the Department relied on both article 8(a)(iv) and article 9(1)(b) to justify refusal, it is my view that protection for legal professional privilege most appropriately falls within the exception in article 9(1)(b) of the AIE Regulations. Legal professional privilege is a key tenet of the administration of justice is relevant to article 9(1)(b) of the AIE Regulations. Accordingly, for the purpose of this review, I will examine whether the Department is justified in withholding information under the exemption article 9(1)(b) of the AIE Regulations.
12. The general thrust of the appellant’s appeal is that the Department misapplied articles 8(a)(iv) and 9(1)(b) of the AIE Regulations for the following reasons:
• It had failed to identify “the specific proceedings” whose confidentiality is protected by law and how legal professional privilege applied to the requested record.
• It had asserted that the “course of justice claim” applied but had failed to identify a concrete process or show a specific, reasonably foreseeable adverse effect from release of the requested document.
13. In its submissions to this Office, in addition to the details included in the original and internal review decisions, the Department also included the following in support of its reliance on articles 8(a)(iv) and 9(1)(b) of the AIE Regulations:
• The Department commentated how it communicates with The Office of the Attorney General in relation to relevant court decisions and for the provision of legal advice generally. The Department highlighted that these types of communications and communications relate to legal advice and are therefore, considered to fall under the concept of legal professional privilege.
• The Department submitted that the concept of legal professional privilege ensures that clients can communicate openly with their legal professionals. The Department stated that it is imperative to the performance of its functions that it can communicate openly with its legal teams and that such communication can be held securely on its records.
• The Department pointed out that it is imperative that the concept of legal professional privilege, which has a constitutional foundation is not undermined so as to enable the course of natural justice generally for individuals and public bodies.
• The Department stated that the release of the requested record with the Department’s legal professional advisors would undermine the protection provided by legal professional privilege generally.
• The Department submitted that the concept of legal professional privilege applies, regardless of whether legal proceedings are ongoing or not […]”.
14. The Department in submission to this Office said that the appellant’s request relates to a“record of communication with the Department’s legal professional advisors.”
15. The information refused by the Department comprises of 2 emails within Record 1 dated 8 March 2024 between Department officials and the Office of the Attorney General.
16. Article 9(1)(b) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information would adversely affect“the course of justice (including criminal inquiries and disciplinary inquiries)”.
17. Article 9(1)(b) 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. I note that the Aarhus Guide takes a narrow approach to construction of the relevant provision in the Aarhus Convention, interpreting“the course of justice” as referring to“active proceedings within the courts” . However, I also note that the Aarhus Guide, while a source of helpful guidance, is but a Guide, is not legally binding and is not determinative ( Right to Know CLG v Commissioner for Environmental Information IEHC 353 , paragraph 20).
18. Legal professional privilege (LPP) is a right of a person to refuse to disclose any communications with his or her lawyer made for the purpose of giving or receiving legal advice. It is a common law right with a constitutional foundation, as a dimension of the protection of the administration of justice afforded by Article 34 of the Irish Constitution. The existence of LPP is predicated on there being a public interest requirement for it in the proper conduct of the administration of justice, such that it is“a fundamental condition on which the administration of justice as a whole rests” (see Martin v Legal Aid Board [ 2007 IEHC 76 ] and Miley v Flood [ 2001 IEHC 9 ]). In light of this, I accept that the disclosure of information which would breach LPP would, as a result, adversely affect the course of justice, within the meaning of Article 9(1)(b) of the AIE Regulations.
19. LPP encompasses legal advice privilege and litigation privilege. Legal advice privilege covers a communication 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 instigation of the client or the lawyer” (Smurfit Paribas Bank Limited v. AAB Export Finance Limited [1990] 1 IR 469). In light of the guidance set out in McMahon v Irish Aviation Authority 2016 IEHC 221 , I understand that for legal advice privilege to apply:
(a) there must be a communication between a client and a lawyer (including solicitors, barristers, salaried in-house legal advisers, foreign lawyers and the Attorney General);
(b) the communication must have been made in confidence;
(c) the communication must have been made during the course of a professional legal relationship; and
(d) the communication must have been made for the purposes of the giving or receiving of legal advice.
20. In this case, the Department contends that the withheld record in question constituted a confidential communication between Departmental officials and their salaried in-house legal advisers for the purpose of obtaining and/or giving legal advice. It maintains that legal advice privilege attached to the information in the part of the record the Department has refused to release, for the following reasons:
“[T]he information contains matters relating to legal advice from the Office of the Attorney General and would be exempt from production in proceedings in a court on the ground of legal professional privilege.”
21. In its submissions, the Department has set out what both emails within Record 1 that it seeks to withhold, consists of, and why it believes them to be covered by LPP. It has also provided this Office with an unredacted copy of Record 1, which I have examined in detail.
• Email 1 : sent from the Advisory Counsel at the Office of the Attorney-General to the Principal Officer at the Planning Advisory Division in the Department on 8th March 2024 at 14:53pm. This email contained a communication between the Office of the Attorney General and the Department in relation to a recent court decision. The Department submitted that “[t]hese types of communications and communications related to legal advice are considered to fall under the concept of legal professional privilege (…)”. It is noted that there is a disclaimer at the bottom of the email, which states that this is a confidential communication for the purpose of giving legal advice, and that accordingly, this communication is covered by legal professional privilege.
• Email 2 : sent from the Principal Officer at the Planning Advisory Division in the Department to their Advisory Counsel at the Office of the Attorney-General, on 8th March 2024 at 15:15pm. The Department acknowledged receipt of the communication containing legal advice from the Advisory Counsel.
22. The Department reaffirmed in submission to us that that“Departments of Government communicate with The Office of the Attorney General in relation to relevant court decisions and for the provision of legal advice generally. These types of communications and communications related to legal advice are considered to fall under the concept of legal professional privilege (…) Legal Professional Privilege ensures that clients be able to communicate openly with their legal professionals. It is imperative to the workings of Government Departments and the performance of their functions within the statutory legal framework that they can communicate openly with their legal teams and that that communication can be held securely on Department records.”
23. Based on the above, I am satisfied that the emails in question consist of a communication between a client and their state legal advisor. I note that under the email signature from the Attorney Counsel at the Office of the Attorney-General, it states “this e-mail may contain confidential information and/or legal advice and its contents may attract legal privilege. If you have received this e-mail in error, please contact the sender immediately.” While this is a generic note, I think it is clear that the communication at issue in these emails was being made in confidence. The emails, as set out by the Department, were made for the purposes of the giving or receiving of legal advice, and having reviewed the information sought, I am satisfied that is the case.
24. I have not seen anything to indicate that LPP has been waived by the Department in this instance. I am satisfied that the withheld information is subject to LPP. Accordingly, my view is that release of the information would breach LPP. I acknowledge that article 9(1)(b) does not protect legally privileged information in and of itself. However, I am satisfied that the disclosure of this information would adversely affect the course of justice, as it would undermine the general assurance that correspondence with one’s legal advisor will remain confidential. I consider that this applies regardless of whether there are current or envisaged proceedings in place. LPP does not require related proceedings to be in being. I therefore find that article 9(1)(b) applies to the information sought.
25. I will now proceed to 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.
26. The Department has made the following points in relation to the public interest balancing test thatit is imperative that “the concept of legal professional privilege which has a constitutional foundation is not undermined so as to enable the course of natural justice generally for individuals and public bodies. The release of this record of communication with the Department’s legal professional advisors would undermine the protection provided by legal professional privilege generally.”
27. In favour of refusal, I note that the case law makes it clear that the protection of LPP is of fundamental importance to the administration of justice. The courts have emphasised the importance of the principle to facilitating free and frank communication with legal advisers (see, for example, Barr J’s summary of the rationale for protection in McMahon v Irish Aviation Authority 2016 IEHC 221 at paragraphs 7-11). I also consider that the existence of legal professional privilege encourages public authorities to seek legal advice freely and frequently, and that there is a public interest in ensuring that public authorities seek legal advice about their obligations, particularly in relation to environmental matters.
28. In considering the public interest served by disclosure in this case, there is an important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive, in particular by contributing to a greater 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, as set out in recital 1 to the AIE Directive. There is also a general interest in the openness and transparency of the decision-making processes of public authorities in relation to environmental matters. Increased transparency around the internal deliberations of public authorities on how they achieve this protection is an important consideration in applying the public interest test.
29. I have also taken consideration of the appellant’s view that“[t]he communication relates to environmental policymaking or legal interpretation affecting environmental governance (…) There is a strong public interest in transparency, especially where legal advice may underpin decision-making that affects environmental rights and compliance with EU environmental law.”
30. Having considered the interest in directing release of the specific legal advice at issue in this particular case, I have come to the conclusion that the public interest in disclosure is not sufficient to outweigh the fundamental importance of the interest of preserving the Department’s right to LPP in relation to the advice that it received from its Advisory Counsel. Legal professional privilege is a significant feature of our legal system and the Courts have noted on numerous occasions the strong public interest which exists in protecting it. I am satisfied that this remains the case in this instance.
31. I do note, however, that the matter of release or non-release of information where LPP and article 9(1)(b) may apply to a request for environmental information is case-specific and there may be situations where release of such information is warranted under the public interest balancing test. It is important that public authorities remember that since 2007 it is open to them to release legally privileged information, and to this Office to direct such release following receipt of an appeal, under the public interest balancing test. However, in the circumstances of this particular case, I do not find that the public interest in disclosure outweighs the interest served by refusal.
32. Accordingly, I affirm the decision of the Department to refuse access to the information containing the legal advice and find that article 9(1)(b) applies to the withheld information and that the interest in refusal outweighs the public interest in disclosure.
33. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department’s decision to withhold certain information under article 9(1)(b) of the AIE Regulations.
34. 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