Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-136880-Q2N3W3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether ABP was justified in refusing access to information regarding the breakdown of costs related to judicial review proceedings coming within the scope of the appellant’s request
1. On 27 January 2023, the appellant submitted a six-part request to ABP for access to information regarding the breakdown of costs related to judicial review proceedings. The request was as follows:
I note that [ABP] in its annual report publishes aggregate costs incurred in relation to judicial reviews of its decisions.
This request is for a more detailed breakdown of this information for every case where the final bill was settled in each calendar year 2017 to 2022 inclusive as follows
1. Record Number of the case
2. Whether there was an order for [ABP] to pay the costs and if so to which party or parties
3. Whether there was an order for [ABP] to recover costs and from which party or parties
4. The total of [ABP’s] own costs broken down by (a) Solicitor’s professional fee; (b) VAT; (c) Counsel’s fees; (d) other
5. The total paid by [ABP] on foot of a costs order to the other parties under the headings in #4 above, broken down by party in the case where the Board had to pay multiple parties
6. The total recovered by [ABP] for its own costs using the same headings as in #4 and from whom the costs were recovered
I would like to receive this information in spreadsheet format.”
2. On 27 February 2023, ABP issued its original decision. It did not make specific reference to or identify the information held by or for it within the scope of the request. Instead it noted that it considered the information to be “commercially sensitive pursuant to article 8(a)(iv) of the AIE Regulations” in conjunction with section 36(1)(b) of the Freedom of Information (FOI) Act. ABP stated that “the disclosure of this financial information paid out to individual law firms could prejudice the competitive position of the law firms in the conduct of their business or occupation”. It did not make reference to any of the other information requested by the appellant.
3. Also on 27 February 2023, the appellant sought an internal review of ABP’s decision, stating:
The decision doesn’t identify what proceedings are at issue to engage Article 8(a)(iv), this can only refer to the final stage of a decision making procedure. Since the payment of legal costs is not part of a decision making procedure there are no proceedings at issue. Additionally the Board has already provided similar information to the Public Accounts Committee and therefore the harm envisaged cannot occur.”
4. On 27 March 2023, ABP issued its internal review decision wherein it stated it was varying its original decision. The internal review decision noted that ABP, at original decision, considered “the information requested to be commercially sensitive pursuant to article 8(a)(iv)” and that “the disclosure of this financial information paid to individual law firms could prejudice the competitive position of the law firms in the conduct of their business or occupation”. ABP’s internal review decision also included the following details:
a. ABP provided the appellant with a “Legal Expenditure and Recovery” table, which contained high-level details of total or aggregate legal costs for the years 2012-2021. ABP explained that the figures for 2022 were being collated and required approval and sign-off following an external audit by the Comptroller and Auditor General. It stated that they would be published in its 2022 Annual Report.
b. ABP stated that legal expenditure can also be viewed on ABP’s website www.pleanala.ie. It noted that its annual reports contain a section which provides a breakdown of amounts recognised as expenditure in relation to legal costs for the reporting period. ABP commented that these costs comprise its own legal costs, primarily for solicitor and barrister representation in judicial review cases before the Superior Courts and the Court of Justice of the European Union, as well as payment of costs liabilities for other side costs in cases where such liabilities arise as an outcome of the court process.
c. In responding to the appellant’s comment that similar legal costs information had been provided to the Public Accounts Committee (PAC), ABP stated the figures contained in the “Legal Expenditure and Recovery” table (as provided to the appellant), were the figures given to the PAC. ABP outlined that the information it submitted to the PAC on legal costs did not include a breakdown in the manner sought at part 4 of the appellant’s request.
d. ABP specifically referred to part 4 of the appellant’s request and refused access to the breakdown of information sought under article 8(a)(iv) of the AIE Regulations. It reiterated that “disclosure by [ABP] of the financial information paid out to individual law firms could prejudice the competitive position of the law firms in the conduct of their business or occupation.” It outlined that “[t]he ‘confidentiality of proceedings’ in this instance is the process of [ABP] negotiating the payment of legal costs to individual parties and law firms.” It stated that the information requested is commercially sensitive and exempt under section 36(1)(b) of the FOI Act 2014.
5. The appellant submitted an appeal to this Office on 28 March 2023, commenting that ABP’s response “doesn’t even approximate to the information that I asked for”.
6. During the course of this review, ABP made submissions to this Office, stating it wished to affirm the points included in its original and internal review decisions. ABP further stated that, “[i]n making its decision, [it] was mindful of the requirements under article 10(3) of the AIE Regulations”. It went on to note that “it is our opinion that the commercially sensitive nature of the information requested, as outlined in our correspondence to [the appellant] means that the factors in favour of refusal outweigh the factors in favour of release.”
7. ABP provided this Office with two “Breakdown of Expenditure” spreadsheets for the years 2020 and 2021, which it had refused to disclose to the appellant. It stated that these were “being provided as a sample of the requested records” as the remaining years would follow the same format. It also provided this Office with a copy of the “Legal Expenditure and Recovery” table, which was released to the appellant at internal review stage. It stated that this table had been provided to the PAC and contained a summary of legal costs.
8. The appellant also made submissions to this Office, which included, among other things, the following details:
a. The appellant outlined his view that ABP’s original and internal review decisions were not justified.
b. The appellant submitted that ABP had not demonstrated that article 8(a)(iv) of the AIE Regulations was engaged and that it had not carried out a public interest test.
c. The appellant noted that in his internal review request he had stated that similar information to that sought had been provided to the PAC. He submitted that, on this basis, the “envisaged harm could not occur.” He noted that he had been referring to the document available at: https://data.oireachtas.ie/ie/oireachtas/committee/dail/33/committee_of_public_accounts/submissions/2022/2022-09-21_correspondence-dave-walsh-chairperson-an-bord-pleanala-r1424-pac33_en.pdf. The appellant stated that he did not claim that ABP had provided the PAC with the breakdown of financial information requested at part 4 of his request, rather that the PAC had been provided with “similar information.” He contended that, having regard to the information at the link provided, ABP had supplied the PAC with more detailed costs information regarding individual cases, than the one-page “Legal Expenditure and Recovery” table. He noted that he was seeking for a further breakdown of this information.
d. The appellant submitted that ABP’s internal review decision did not engage with each part of his request, in particular, parts 1, 2, and 3.
9. I am directed by the Commissioner for Environmental Information to undertake a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between ABP and the appellant as outlined above and to correspondence between this Office and both ABP and the appellant on the matter. In addition, I have had regard to:
10. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
11. 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, this Office will require the public authority to make available environmental information to the appellant.
12. The scope of this review concerns whether ABP was justified in refusing access to information regarding the breakdown of costs related to judicial review proceedings coming within the scope of the appellant’s request.
13. I note that ABP’s internal review decision included the following section “Application for Review of Decision to the Information Commissioner” wherein it stated:
In the event that you wish to make an application to the Information Commissioner for a review of this decision, you can do so by corresponding with the Office of the Information Commissioner, by email or online. You should include a fee if one is payable for processing the application for review. You should make your application within 6 months from the date of this notification. However, the making of a late application may be permitted in appropriate circumstances.”
14. The right of appeal set out in ABP’s internal review decision refers to an appeal to the Office of the Information Commissioner under the Freedom of Information Act 2014, rather than an appeal to the Office of the Commissioner for Environmental Information under the AIE Regulations. These are distinct statutory regimes which differ in a number of respects. In particular, the timeframes vary greatly between the two regimes.
15. Indeed, under article 12(4)(a) of the AIE Regulations, an appeal to this Office must be initiated not later than one month after the decision of the public authority under article 11(3) (generally the internal review decision) has been received by, or was required to be notified to, the applicant/appellant. This contrasts significantly with the 6-month appeal period provided for in the FOI regime which is referred to in ABP’s internal review decision. While it is open to this Office, under article 12(4)(b) of the AIE Regulations, to extend the time limit for initiating an appeal where, in the circumstances of a particular case, it is reasonable to do so, ABP should ensure that it complies with its obligations under article 11(4)(b) of the Regulations to provide the correct details to requesters on their right of appeal under the AIE Regulations.
16. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request, subject only to the provisions of the AIE Regulations.
17. Articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stage, consistent with Article 4(5) of the AIE Directive. Recital 16 of the AIE Directive states “…The reasons for refusal should be provided to the applicant within the time limit laid down in this Directive.” Article 4(5) of the AIE Directive provides that “[a] refusal to make available all or part of the information requested shall be notified to the applicant…The notification shall state the reasons for the refusal…”.
18. The duty to give reasons, which arises not only by virtue of the AIE Regulations and AIE Directive, is 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.
19. In this regard, the High Court in Right to Know v An Taoiseach [2018] IEHC 372 noted, in particular, that “in light of the adjudicatory processes in which a decision-maker is required to engage pursuant to [a]rticles 10(3), (4) and (5) and 11(4) of the AIE Regulations, 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 Court held that in the absence of any indicator in the review decision that the balancing exercise mandated by articles 10(3) and (4) had been carried out, suggested that no balancing exercise had, in fact, been undertaken and that the same was true in respect of the mandatory obligation set out in article 10(5) of the AIE Regulations (paragraph 87).
20. In order to comply with the duty to give reasons when processing a request for environmental information under the AIE Regulations, it will generally be necessary for the public authority to identify whether the environmental information sought is held by or for it, prior to determining whether that information should be released or whether an exemption provided for in the AIE Regulations applies. If the public authority, does not identify relevant information held by or for it, it is open to the public authority to refuse access to that information under article 7(5) of the AIE Regulations.
21. As indicated, in most circumstances, the necessary first step is for a public authority to identify and consider the information held by or for it within the scope of the request. In this case, that does not appear to have occurred.
22. The appellant in this case requested that the following breakdown of information relating to judicial review cases, where the final bill had been settled over the period 2017 to 2022, be provided in spreadsheet format:
1. “Record Number of the case
2. Whether there was an order for [ABP] to pay the costs and if so to which party or parties
3. Whether there was an order for [ABP] to recover costs and from which party or parties
4. The total of [ABP’s] own costs broken down by (a) Solicitor’s professional fee; (b) VAT; (c) Counsel’s fees; (d) other
5. The total paid by [ABP] on foot of a costs order to the other parties under the headings in #4 above, broken down by party in the case where the Board had to pay multiple parties
6. The total recovered by [ABP] for its own costs using the same headings as in #4 and from whom the costs were recovered”.
23. ABP, in its original decision and internal review decision provided rationale for its refusal only of information relating to “financial information paid out to individual law firms”. This comprises only part of the appellant’s request (i.e. parts 4(a) and (b) and, potentially although not necessarily, part 5(a) and (b), and part 6(a) and (b)). ABP gave no indication that information which dealt with other aspects of the request had been considered as part of its decision.
24. At internal review stage ABP provided the appellant with information which did not respond to his request. It provided him with aggregate figures for legal costs, some of which were included in its Annual Reports. It also directed him to information available on its website which appears to again have been the aggregated legal costs contained in its Annual Reports. The existence of such figures was referred to explicitly in the appellant’s request suggesting, firstly, that he was already aware of them and, secondly, that what he was requesting was a further breakdown of those figures. Indeed, the request explicitly notes that what the appellant is seeking is “a more detailed breakdown of this information”.
25. In accordance with its usual procedure, this Office requested that ABP provide it with all information which was the subject of the request as part of this appeal. ABP provided this Office with copies of the “Legal Expenditure and Recovery” table, which was released to the appellant at internal review stage, and copies of two “Breakdown of Expenditure” spreadsheets for the years 2020 and 2021, which were given as samples of the years requested and, although not identified or referred to in any way in either the original or internal review decisions, were refused.
26. The “Legal Expenditure and Recovery” table, which was released to the appellant, sets out total amounts for the years 2012 – 2021 across the following headings: (1) recoverable costs arising in the year, (2) recovered in the year, (3) net recoverable costs, (4) non-recoverable costs, (5) non-recoverable payment of other side costs, (6) total ABP own costs excluding recovery offset, (7) ABP own solicitor costs, (8) ABP own (barrister etc) other costs, (9) total ABP own costs, (10) non-recoverable payment of other side costs, (11) total ABP own and other side costs (excl. recovery), and (12) recovered in the year. Having examined the table, I am satisfied that, while it contains total aggregate costs, it does not contain the breakdown of information sought at parts 1 to 6 of the appellant’s request.
27. The “Breakdown of Expenditure” spreadsheets, which were refused, can be described as containing a more detailed breakdown of information the years concerned (including dates, case numbers, barrister/solicitor names, and amounts) across the following headings: (1) recoverable invoices, (2) non-recoverable invoices, (3) (non-recoverable) applicant costs, and (4) recovery monies received. Having examined the spreadsheets, it appears to me that while they may contain some of the information sought for the years 2020 and 2021 at parts 4, 5, and 6 of the request, they do not contain all of the specific information sought at those parts and, crucially, do not contain any of the information sought at parts 1, 2, and 3. For example, the case number used as a reference in these “Breakdown of Expenditure” spreadsheets is not the court record number of the judicial review proceedings as sought by the appellant. ABP has provided no explanation in relation to the case numbers used in the spreadsheets which means that the remaining information in the spreadsheets is not capable of responding to the appellant’s request as it is not possible to link costs incurred with the court record number in the manner sought by the appellant. The spreadsheets also contain further information which falls outside the scope of the appellant’s request and appear to include general financial data related to legal services / activities etc.
28. In light of the above, it appears to me that ABP has made a decision that it is entitled to refuse the appellant’s request on the basis that the information requested is commercially sensitive without having, in fact, considered the information requested.
29. It is clear from the wording of the appellant’s request that all of the parts are interrelated, setting out the breakdown of information sought relating to judicial review cases where the final bill was settled over the period 2017 to 2022. While the spreadsheets provided contain a considerable amount of financial information relating to a significant number of ABP cases, there is no detail which shows whether the information actually concerns cases which involved judicial review proceedings where costs were ordered and the final bill settled. In my view, none of the information relating to parts 4, 5, and 6 of the request that may be contained within the spreadsheets and which ABP refused under article 8(a)(iv) of the AIE Regulations, can be properly identified without the information sought at parts 1, 2, and 3 of the request. ABP has not identified and located any information which relates to parts 1 to 3 of the request. In addition, it gave no indication in its decisions or in its submissions to this Office as to what specific information contained within the spreadsheets actually fell within the scope of the appellant’s request. In other words, ABP has sought to invoke article 8(a)(iv) of the AIE Regulations to refuse access to information which was not sought by the appellant.
30. ABP, in processing the appellant’s request, did not identify the extent to which the actual information sought by the appellant at parts 1 to 6 of his request was held by or for it, prior to its refusal of those parts. I cannot therefore find that ABP gave sufficient reasons for its refusal of the appellant’s request under the AIE Regulations at either original or internal review decision.
31. In all the circumstances, I am satisfied that the appellant’s request was not dealt with in accordance with articles 7(4) and 11(4) of the AIE Regulations. Accordingly, I find that ABP’s decision to refuse access to information regarding the breakdown of costs related to judicial review proceedings coming within the scope of the appellant’s request was not justified. I consider that the most appropriate course of action to take in this case, in particular where the relevant information coming within the scope of the appellant’s request has not been properly identified, is to annul ABP’s decision in its entirety and to direct it to undertake a fresh decision-making process in respect of the appellant’s request in accordance with the AIE Regulations.
32. In light of my decision above, it is not necessary for me to consider further ABP’s application of article 8(a)(iv) of the AIE Regulations. It is also not possible for me to do so in circumstances where ABP has not dealt with the question of whether it is in fact possible to provide the appellant with the information he has requested and where the information sought by the appellant is not before me as it has not been compiled by ABP. However, for the sake of completeness, I wish to note that, article 8(a)(iv) 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). This means that when relying on article 8(a)(iv) of the AIE Regulations a public authority must identify the proceedings to which the information at issue relates and show that those proceedings have an element of confidentiality, that the confidentiality of those proceedings is protected by law, and that the disclosure of the information at issue would adversely affect that confidentiality. 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 being undermined must be reasonably foreseeable and not purely hypothetical. Consideration must also be given to article 10 of the AIE Regulations.
33. 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). 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).
34. ABP should also note the findings of the Court of Justice in C-619/19 Land Baden-Württemberg v DR at paragraph 69 of its decision:
…[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”.
35. ABP, in its internal review decision, stated that the “’confidentiality of proceedings is the process of [ABP] negotiating the payment of legal costs to individual parties and law firms.” The appellant in this case sought access to a breakdown of cost information for “every case where the final bill was settled in each calendar year 2017 to 2022.” The reasoning provided by ABP does not demonstrate how any of the information sought relates to the process of ABP negotiating the payment of legal costs, or to any deliberative or decision-making process that would fall within the concept of “proceedings” required to engage 8(a)(iv) of the AIE Regulations. It is also not clear how release of the information requested by the appellant could prejudice the competitive position of law firms engaged to act on behalf of ABP. If ABP seeks to rely on that position as a basis for refusal, it should be in a position to demonstrate, firstly that this position is covered by one of the grounds for refusal set out in articles 8 and 9 of the AIE Regulations, secondly why it considers the risk to be reasonably foreseeable as opposed to purely hypothetical and finally, the basis on which it considers the interest in guarding against such a risk to outweigh the public interest in release of the information requested. It should also apply the provisions of article 10(5) of the AIE Regulations to ensure that any information to which grounds for refusal do not apply is provided to the appellant.
36. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul ABP’s decision in this case on the grounds that the request was not dealt with in accordance with articles 7(4) and 11(4) of the AIE Regulations. I direct ABP to undertake a fresh decision-making process in respect of the appellant’s request.
37. 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.
Emma Libreri, on behalf of the Commissioner for Environmental Information