Cinneadh
Ms. X and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-143336-S8Z4K4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-143336-S8Z4K4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in withholding certain information under article 8(a)(iv) of the AIE Regulations
6 December 2024
1. On 2 December 2021, the appellant requested the following information from the Department:
“In response to S.I. No. 293 of 2021, the DAFM introduced revised public consultation procedures for projects that may affect European sites. Details of the new consultation processes introduced by DAFM were contained in Circular 10/2021, which was effective from 12 July 2021.
With regard to Point 5 of Circular 10/2021 i.e. the decision to reduce the timeframe for lodging an appeal from 28 days to 14 days and in respect of the period from 1 January 2021 to 12 July 2021 (both dates inclusive) please provide, by email, all information held by or for DAFM that informed the decision to reduce the timeframe for lodging an appeal from 28 days to 14 days
The information provided should include, inter alia:
-Internal and external correspondence (any media, including text and WhatsApp messages)
-Advice received, including legal advice, including drafts
-Any analysis, review or consideration etc of any material and / or draft proposals in relation to considerations to reduce the timeframe for lodging an appeal.
-Consultations
-Draft reports and final reports (including all appendices or annexes
-Notes of all telephone conversations where any part of the conversation is relevant to the request
-Notes of all meetings (actual or virtual) where any part of the meeting is relevant to the request
-Investigations, either conducted internally, or externally by any third parties, that are relevant to the requests”
2. The Department issued its decision to part grant the information to the appellant on 21 December 2021. The appellant requested an internal review on 12 January 2022. The Department issued its internal review on 11 February 2022, which affirmed the original decision. The appellant appealed to this Office, and the Commissioner issued a decision (see OCE - 119755 - L7K7K4) on 20 July 2023 finding that the request was not dealt with in accordance with Article 7(5) of the Regulations, because the Department: a) failed to provide the appellant with information relevant to the request; b) provided no evidence that it conducted an adequate and reasonable search to enable it to identify and locate information relevant to the request, in accordance with Article 7(5) of the Regulations. The Commissioner annulled the Department’s decision and remitted the matter for fresh consideration by the Department.
3. Following this, on 23 August 2023, the Department issued its fresh decision. It said:
“I have decided on your request of 21st July 2023. Having considered your request, my decision is to refuse you access to the information sought under Article 7(5) of European Communities (Access to Information on the Environment) Regulations 2007 to 2018: as the information you requested does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The following searches were conducted for the requested information: A search of the electronic databases and records held both on mainframe computers and individual staff computers”
4. The appellant requested an internal review of this decision on 31 August 2023.
5. On 2 October 2023, the Department issued its internal review annulling the decision of the Department. _
“I have examined the records relevant to this request. I have decided that the decision made by the initial decision-maker should be annulled. I have identified 4 records which relate to your request. I have decided that you should be granted access in full to 3 records and I am granting access to a further 1 record with some information redacted, having regard to the provisions of article 8(a)(iv) of the AIE Regulations:
8. A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information— (a) would adversely affect— (iv) without prejudice to paragraph (b), 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);
Schedule of records
I have attached an amended schedule of records with this letter. This lists the records that I consider relevant to your request. It provides a brief description of each record and the decision I have made on each 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.
Emissions
In reaching the above decision and where information has been refused under Article 8 and/or 9(1)(c), I have in accordance with Article 10(1), examined whether your request relates to information on emissions into the environment and have determined that it does not.
Public interest test
Furthermore, in accordance with Article 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 determined that the public interest would not be served by disclosing the information you request. The factors in favour of release of this information are the making available to the public, where practical and allowed under the law, in a transparent manner, information affecting the environment. The factors in favour of withholding this information are that release of the information would have adverse affect the confidentiality of the proceedings of DAFM as a public authority, where such confidentiality is otherwise protected by law. I therefore am of the opinion that the public interest is best served by a refusal to disclose this information.”
6. The appellant appealed to my Office on 24 October 2023.
7. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department of Agriculture, Food and the Marine. I have also examined the contents of the records at issue. 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, 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 Department has released three records in full, and has released the fourth record in part. The fourth record is titled _“FW 14 day RegulationsRedacted.pdf” and consists of an email chain of 8 emails. Of these, the Department is seeking to withhold 6 of these emails on the basis of“legal professional privilege.” The remaining 2 emails, the Department is no longer seeking to withhold, and has confirmed it will release these to the appellant.
10. Accordingly, my decision is based on whether the Department is justified in withholding 6 emails in an email chain contained within Record 4, on the basis that legal professional privilege applies.
11. The appellant made the following submission to this Office on 13 November 2023:
“The redacted document (document 4) is referred to on the Schedule of Documents as ‘FW 14 day RegultaionsRedacted.pdf’
Within this document there are 5 emails redacted – one email dated 7 July 2023 and four emails dated 6 July 2023.
The legal advice dated 5 July 2023 received by DAFM from (named personnel) Head of Legal Services, is also redacted.
There are a number of elements which must be satisfied before refusal under Article 8(a)(iv) arises;
a. The case must involve ‘proceedings’ of the public authority:
b. Those proceedings must have an element of confidentiality
c. That confidentiality must be adversely affected by the disclosure of the information requested
d. That confidentiality must be protected by law.
I am happy for OCEI to determine if all four elements of Article 8(a)(iv) apply to this AIE request, in particular what adverse affect on confidentiality will result if the requested information, dating from 28 months ago, is disclosed in full.
In weighing the public interest served by disclosure of the redactions against the interest served by refusal, I am aware that the AIE regime recognises a very strong public interest in maximising openness in relation to environmental matters so that an informed public can participate more effectively in environmental decision-making. In this case, disclosure would enhance transparency by providing further insight into the Forest Service’s understanding of the rules and requirements that it is responsible for implementing and enforcing in relation to issuing forestry licences – afforestation, forest road and felling, and in defending licences issued by DAFM with the Forestry Appeals Committee (‘FAC’).
Reducing, with effect from 12 July 2021, the timeframe for submitting a valid appeal to the FAC from 28 days to 14 days is important, particularly noting that since 2020, only 45% of cases submitted to the FAC resulted in the FAC upholding the forestry licence issued by DAFM. The remaining 55% of cases have either identified errors made by DAFM or have varied the licence issued by DAFM. Please refer to the article dated 18 September 2023 below on this point; https://www.farmersjournal.ie/news/news/less-than-half-of-forestry-licenses-granted-since-2020-held-up-to-appeal-783698
The issue of errors being made by DAFM within the forestry licencing process is getting worse. The FAC issued 59 appeal decisions in 2022. Refer to the link below:
http://www.agriappeals.gov.ie/forestryappealscommittee/facdecisions/2022/
Of the 59 appeal decisions in 2022, only 24% (14 cases) of the cases submitted to the FAC resulted in the FAC upholding the forestry licence issued by DAFM.”
12. At this point in her submission, the appellant then listed out 14 appeal cases affirmed by FAC in 2022 – including their date and reference number. She stated that 76% of the FAC appeal decisions in 2022 resulted in errors being identified by the FAC (38 cases) or the forestry licence being varied by the FAC (7 cases). She also listed out the 7 appeals cases where the licence was varied by the FAC in 2022 (including date and reference number).
She stated:“The downward trend in the quality of the forestry licence processing by DAFM continues into 2023. At the time of writing, the FAC have issued 62 appeal decisions in 2023 (up to 3 November 2023). Only 3% of the 2023 appeals have upheld the forestry licence issued by DAFM. (TFL00730621 affirmed by FAC on 6 October 2023 and TFL00198118 affirmed by FAC on 14 April 2023)
For 97% of the appeals (60 cases) the FAC have identified errors made by DAFM and set aside and the remitted the licence application back to DAFM.
The above 2023 record is appalling on the part of the DAFM in relation to the quality and competency of their processing of forestry applications. It could be strongly argued that, even in 2021, the valid window for submitting appeals to the FAC should have been increased from 28 days and not decreased to 14 days, noting the environmental good resulting in the FAC receiving submissions from members of the public (at a financial cost to the members of the public of €200 for each appeal.)
For example, in 2021, was there any consideration by Legal Services as to the quality of DAFM’s decision making at that time? (On the basis of the FAC appeals, DAFM’s decision making has deteriorated further in quality since 2021).
I contend that, noting the above facts, there are factors at play in favour of full disclosure of the redacted information in this case.
Noting the above points and the requirements of the AIE Regulations, I respectfully request that OCEI annul DAFM’s decision dated 2 October 2023 and direct DAFM to provide the requested information in full.”
13. On 20 December 2023, the Department made its submission to this Office:
“Record number 04 contains correspondence between the Head of Forestry Division and members of our Legal Services Division (LSD) in which Forestry Division was seeking the advice of LSD. Any correspondence between Forestry Division and LSD was redacted and access to this information was refused, having regard to article 8(a)(iv) of the AIE Regulations, as the redacted information consists of correspondence between Forestry Division and their professional legal adviser relating to the amendment of an SI
8.A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information —
(a) would adversely affect— (iv) without prejudice to paragraph (b), 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);
The commissioner has previously accepted (CEI/20/0001) that:
“…legal professional privilege is the type of claim for confidentiality that is protected by law as envisioned in article 8(a)(iv), with or without reference to the FOI Act. It enables a client to maintain the confidentiality of two types of communication: a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and b) confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).”
Release of the redacted information would adversely affect the confidentiality of the proceedings of a public authority, 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). Record number 04 was released to the appellant in its redacted form as a part grant, alongside record numbers 01- 03, which were released in full.”
14. On 24 July 2024, an investigator from this Office wrote to the Department for some clarifications regarding the Department’s reliance on article 8(a)(iv), and also asked some questions in relation to article 9(1)(b) of the AIE Regulations.
Information withheld on the basis of legal professional privilege (LPP)
15. The Department in submission to this Office said that the emails within Record 4 constituted a“confidential communication between Department officials and their salaried in-house Legal Advisers for the purpose of obtaining and / or giving legal advice. The Department refused to disclose the communications on grounds of legal professional privilege. The legal basis provided by the Department for the said refusal was Article 8(a)(iv) of the AIE Regulations.”
16. The information refused comprises of 6 emails within Record 4. Record 4 consists of an email thread with the subject line - _“FW 14 ay RegulationsRedacted.pdf” . Of the withheld emails, the first was dated 5th July 2021, the following four emails dated 6th July 2021, and the last email was dated 7th July 2021. The Department confirmed in correspondence to this Office that the emails are between the following role holders - the in-house legal advisor, the Principal Officer at the Forest Services Division, the Assistant Secretary General with responsibility for Forestry, the Head of Forestry Inspectorate, the Legislative drafter at the Legal Services Division, and the private secretary to the Minister.
17. The Department states that the basis for refusal of the records was article 8(a)(iv). 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 its proceedings, 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.
18. While the Department relied on article 8(a)(iv) 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. This point was raised with the Department in a request for submissions sent by an investigator from this Office. The Department responded that it“strongly maintains that the email communications listed above between Department officials and in-house lawyers are legally privileged and that the AIE Regulations protect such records from disclosure whether that be under Article 8(a)(iv) or Article 9(1)(b) or both.” Accordingly, I will examine whether the Department is justified in withholding information under the exemption article 9(1)(b) of the AIE Regulations.
Does the exception in article 9(1)(b) apply?
19. 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)”.
20. 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).
21. 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.
22. 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.
23. 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:
“The records concerned consist of interactions between Department officials and in-house legal advisors for the purposes of obtaining and giving legal advice in relation to what legislative changes are necessary to implement a reduction in the period of time allowed for lodging appeals to the Forestry Appeals Committee as well as legal advice in relation to the legal basis for imposition of an administrative fee for making a submission in a forestry matter. This advice was very definitely sought, provided and considered as part of the Departments decision making process to bring forward the legislation necessary to implement the desired changes.”
24. In its submissions, the Department has set out what each of the emails within Record 4 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 4, which I have examined in detail. The Department set out the context of the emails explaining, that a decision had been taken in the Department to reduce the time period allowed for appealing forestry decisions to the FAC, and that that change could only be made through legislation.
- Email 1 : sent from the in-house legal advisor to the Head of Forestry Inspectorate and the Assistant Secretary General with Responsibility for Forestry, on 5th of July 2021 at 11:25. This email contained a first draft of the Ministerial Regulations (secondary legislation) necessary to reduce the time period allowed for appealing forestry decisions. The Department asserts that“draft Regulations such as this constitute legal advice as to how to proceed in legislative matters. This is why the email came from (the in house legal advisor) advising the Department on the issue.” The Department has pointed to the the note at the bottom of the email 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 in Forestry Services Division to the in-house legal advisor, with the Assistant Secretary General, Head of Forestry Inspectorate and other departmental officials in copy, on 6th of July 2021 at 11:05. The Department sets out that this email forms part of the correspondence between officials and their in-house legal advisors on how best to give effect in law to a reduced period of time for appealing forestry decision to the FAC. In the email, the Principal Officer asks the in-house legal advisor a specific legal question relating to legislation. In its submissions the Department says that it is clear from the context and the note at the bottom of the email that this is a communication between the Departmental official and the in-house legal advisor for the purpose of obtaining legal advice, and that accordingly, this communication is covered by LPP.
- Email 3 – sent from the in-house legal advisor to the Principal Officer copying in the Assistant Secretary General, the Head of Forestry Inspectorate, the legislative drafter and others, on 6th of July 2021 at 16:21. The Department says that in this email, the in-house legal advisor provides a preliminary response to the legal questions submitted to him in the previous email. The Department says that for the same reasons as stated for Email 2, above, the communication is covered by LPP.
- Email 4 – sent from the Principal Officer to the in-house legal advisor, copying in the Assistant Secretary General, the Head of Forestry Inspectorate and the legislative drafter, on 6th of July 2021 at 16:42. In this email, the Principal Officer seeks certain clarifications from the in-house legal advisor in relation to the number of new pieces of legislation that will be required to give effect in law to a reduced period of time for appealing forestry decision to the forestry appeals committee. For the same reasons as the preceding emails, the Department says this communication is covered by LPP.
- Email 5 – sent from the in-house legal advisor to the Principal Officer, with the Assistant Secretary General, the Head of Forestry Inspectorate and the legislative drafter in copy, on 6th of July 2021 at 17:01. The Department says that in this email, the in-house legal advisor provides a final response to the legal questions submitted to him in the previous emails. For the same reasons as the preceding emails, the Department says this communication is covered by LPP.
- Email 6 – sent from the legislative drafter to the in-house legal advisor and the Principal Officer, with the Assistant Secretary General, the Head of Forestry and other officials in copy, on 7th of July 2021 at 12:08. The Department says that in this email, a Departmental“legally qualified legislative drafter” , provides a final draft of the Ministerial Regulations necessary to reduce the time period allowed for appealing forestry decisions. The Department says Draft Regulations such as this constitute legal advice as to how to proceed in legislative matters. The final draft Regulations were provided to Officials by the aforementioned legislative drafter at the direction of the senior in-house legal advisor. Again, for the same reasons as the preceding emails, the Department says this is covered by LPP.
25. As already set out above, the Department has said it is no longer relying on LPP to withhold the remaining two emails in Record 4, and the Department is granting release of these emails. The reason given by the Department for this is that nothing stated in the emails amounts to legal advice or discloses any legal advice previously obtained by Department Officials. It determined that these communications are not covered by LPP and ought to have been disclosed under AIE Regulations.
26. The Department reaffirmed in submission to us that“the content of the emails exchanged between officials and their lawyers in Record 04 is confidential legal advice that benefits from legal professional privilege. Legal professional privilege should only ever be set aside by the Commissioner in clearly exceptional cases where the public interest factors favouring disclosure very obviously outweigh the well-established public interest in maintaining legal professional privilege. As indicated, it is this Department’s strong contention that no exceptional public interest factors have been identified in this case that could justify the removal of LPP over the records concerned.”
27. Based on the above I am satisfied that the emails in question consist of a communication between a client and an in-house legal adviser. I note that under the email signature from the in-house legal advisor, 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.
28. 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.
Does the public interest served by refusal outweigh the interest served by refusal?
30. 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.
31. The Department has made the following points in relation to the public interest balancing test:“Disclosure of the email correspondence… will amount to the unexpected removal of a confidentiality heretofore enjoyed by officials and their in-house professional legal advisers. The loss of that confidentiality would be very far reaching. It will greatly hinder the ability of officials to exchange necessary information with their in-house legal advisers. This will undermine the ability of in-house lawyers to do their work effectively and will, in turn, have a damaging effect on Department decision making processes. For these reasons, Legal professional privilege should only ever be set aside by the Commissioner in clearly exceptional cases where the public interest factors favouring disclosure very obviously outweigh the well-established public interest in maintaining legal professional privilege. As indicated, it is this Departments strong contention that no exceptional public interest factors have been identified in this case that could justify the removal of LPP over the records concerned.”
32. 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.
33. 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.
34. I have also taken consideration of the appellant’s view that“the AIE regime recognises a very strong public interest in maximising openness in relation to environmental matters so that an informed public can participate more effectively in environmental decision-making. In this case, disclosure would enhance transparency by providing further insight into the Forest Service’s understanding of the rules and requirements that it is responsible for implementing and enforcing in relation to issuing forestry licences – afforestation, forest road and felling, and in defending licences issued by DAFM with the Forestry Appeals Committee (‘FAC’).”
35. The point made by the appellant above was put to the Department by my Investigator. The Department’s response was that the appellant has access to the Regulations that were made by the Minister which, of itself, provides the requester with the information necessary to determine the Forest Service’s understanding (or otherwise) of the rules and requirements that it is responsible for implementing and enforcing in relation to issuing forestry licences. The Department also said that in the circumstances, the public interest in upholding LPP very obviously far outweighs the public interest in disclosure of the records to provide a “further insight” into such matters. The Department added that“vague references to the quality of DAFM decision making and unsubstantiated assertions about the quality of DAFM decision making since 2021 disclose no credible public interest reason that could justify the setting aside the legal advice privilege claimed in this case. By any measure, the public interest in upholding LPP far outweighs any public interest identified by the requester in this appeal.”
36. 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 in house legal advisor. 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, regardless of the fact that the withheld information dates from 2021. I note that a client receiving confidential legal advice is open to giving consent to its release, or part release, and this is a matter the Department is at liberty to consider in the course of time in the interests of openness and transparency in the furtherance of more effective participation by the public in environmental decision-making and, eventually, a better environment.
37. 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.
38. Accordingly, I affirm the decision of the Department to refuse access to the information containing the legal advices, and find that article 9(1)(b) applies to the withheld information and that the interest in refusal outweighs the public interest in disclosure.
39. In light of this finding, it is not necessary to address the application of article 8(a)(iv) of the AIE Regulations that was relied upon by the Department in this case.
40. Having carried out a review under article 12(5) of the AIE Regulations, I vary the Department’s decision, to withhold certain information under article 8(a)(iv). The Department is justified in withholding certain information under article 9(1)(b) of the AIE Regulations.
41. 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