Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-155746-H9C0Q4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department were justified in refusing the information requested on the basis of article 8(a)(iv) and 9(1)(c).
10 February 2025
1. On 17 October 2024, the appellant requested “a full version of recent Gas Networks Ireland Report, relating to Ireland's Energy Security options, as referenced by Minister Eamon Ryan in this Sunday Business Post interview”. A link was included in the request to the relevant Sunday Business Post article.
2. The Department responded on 15 November 2024, informing the appellant that it had identified 11 records which were relevant to his request, all of which were being refused, with the Department relying on articles 8(a)(iv) & 9(1)(c) of the AIE Regulations. The decision made reference to the relevant provisions of the AIE Regulations, but provided no reasoning as to how those provisions applied to the information sought. The decision also referred to the carrying out of a public interest test, but did not explain any of the factors that had been considered in weighing the public interest served by disclosure against the interest served by refusal. The decision-maker concluded that “the public interest would not be served by disclosing the information” requested.
3. The appellant requested an internal review on 25 November 2024. In his request for internal review, the appellant set out in detail the reasons why in his opinion, following his review of the schedule of relevant documents, articles 8(a)(iv) & 9(1)(c) of the AIE Regulations did not appear to justify refusal of the information. The appellant also reminded the Department of its duty to make environmental information available in part where it is possible to separate out any information falling within the scope of the exceptions from the rest of the information requested.
4. The Department responded on 23 December 2024, affirming the original decision to refuse release of all records, citing articles 8(a)(iv) & 9(1)(c) of the AIE Regulations, while again providing no further reasoning or explanation for the decision.
5. The internal review decision maker also informed the appellant that “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.
6. The appellant appealed to my Office on 29 January 2025.
7. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
8. The scope of my review in this appeal is whether the Department was justified in refusing the information requested under articles 8(a)(iv) & 9(1)(c) of the AIE Regulations.
9. It is clear from a review of the decision making records in this appeal that the Department has failed to provide the appellant with adequate reasons for its decisions. In both the original and internal review decisions the Department informs the appellant that it is refusing to release relevant information, citing the statutory ground for its position. The Department does not communicate any reasoning behind this decision at any stage of the decision making process.
10. With regard to the reliance on article 8(a)(iv), the Department have failed to identify the relevant proceedings or establish the confidentiality of these proceedings, which is a necessary step when a public authority seeks to rely on article 8(a)(iv) of the AIE Regulations in order to withhold environmental information.
11. In relation to article 9(1)(c), the Department have failed to establish the confidentiality of the commercial information within the records or to set out in any detail the legitimate economic interest that is protected by that confidentiality. It appears the Department has also failed to consider the possibility of some information being separated out and released from the relevant records if it is the case that some of the environmental information can be withheld under article 9(1)(c) of the AIE Regulations.
12. The Department should also note that the public interest test required by article 10(4) of the AIE Regulations requires public authorities to weigh the factors in favour of release, including the general public interest in the release of environmental information, against the interest served by refusal. The question is not whether the public interest would be served by release but whether the public interest served by release is outweighed by any interest in refusal, and the factors considered should be set out in relevant decisions of public authorities in this regard.
13. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also 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, whether at internal review stage or through an appeal to this Office.
14. The judgment of the High Court inRight to Know v An Taoiseach [2018] IEHC 371 notes 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”.
15. This view aligns with the decision of the Court of Justice of the EU in C-619/19Land Baden Württemberg v DR . This decision contains some useful guidance in relation to the application of exceptions generally. The CJEU noted in particular, at paragraph 69 of its judgment: “As the Advocate General has observed in point 34 of his Opinion, [the] obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, 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.”
16. If the Department do wish to rely on articles 8 (a)(iv) & 9(1)(c) of the AIE Regulations, it should set out in adequate detail how those provisions apply to the information sought.
17. Article 8(a)(iv) of the AIE Regulations provides for refusal of environmental information “where disclosure of the information would adversely affect…the confidentiality of 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)”. A number of elements must be satisfied before the question of refusal under article 8(a)(iv) arises:
• the case must involve the “proceedings” of public authorities;
• those proceedings must have an element of confidentiality;
• that confidentiality must be adversely affected by the disclosure of the information requested; and
• that confidentiality must be protected by law.
18. Should the Department wish to rely on article 9(1)(c) in processing a new decision, I would remind it that it must show that the information at issue is commercial or industrial in nature; that the commercial or industrial information has an element of confidentiality; that the confidentiality of that commercial or industrial information is provided for in law to protect a legitimate economic interest; and that the economic interest, and thereby its confidentiality, would be adversely affected by disclosure of the information at issue. Furthermore, if relying on article 9(1)(c), the Department must to set out, to the requestor, the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the interest identified.
19. In addition, both articles must be read alongside article 10 of the AIE Regulations. Article 10(1) of the AIE Regulations provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal and article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in 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.
20. Rights under the AIE regulations are extremely important and there is a clear duty on public authorities to comply with their obligations, including the obligation to give reasons. This office has a significant backlog of appeals and it will be impossible to clear the backlog if public authorities do not issue comprehensive and lawful first instance decisions. Where requestors do not receive adequate reasons for the refusal of their request, this increases the likelihood that they will seek to appeal to this Office.
21. My options under the AIE regulations are limited and it is not tenable for this Office to review in substance all environmental information where public authorities do not make lawful and sufficiently reasoned first instance decisions. In my view the AIE Regime is best served by remittal in this case for the Department to carry out a fresh decision-making process. While it would have been open to me to seek submissions from the Department to substantiate the decision made, this would allow a situation where the Department could make decisions under the AIE Regulations that are lacking in any or any adequate reasons and are then provided with a chance to remedy this on appeal. The Department should consider this matter afresh and if it intends on refusing any part of the original request, should provide the appellant with adequate reasons for why it is doing so, taking account of the above. This will allow the appellant to make a meaningful request for internal review, and if they remain dissatisfied, to make a reasoned appeal to this Office.
Having carried out a review under article 12(5) of the AIE Regulations, I annul the decision of the Department due to the failure to provide adequate reasons for refusal and direct that a new decision-making process be carried out in respect of each request.
22. 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