Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146307-C2M9K6, OCE-147098-T7K4G4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified under the AIE Regulations in refusing the information sought
20 June 2024
1. Each of these cases relates to a request for environmental information relating to forestry. On examination of the casefiles both of these appeals have been identified as cases where the reasons provided in internal review decisions issued by the Department were not sufficient having regard to the AIE Regulations and Directive.
2. I am directed by the Commissioner for Environmental Information to carry out a review of these appeals under article 12(5) of the AIE Regulations. In carrying out my review, 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’).
3. In accordance with article 12(5) of the AIE Regulations, the role of this Office in each case is to review the Department’s internal review decision and to affirm, annul or vary it.
4. I acknowledge that the increase in AIE requests and subsequent appeals in relation to forestry issues continues to be challenging for the Department. I would encourage the Department to review its procedures for searching for environmental information, and take account of the requirement under article 5(1)(b) of the AIE Regulations for it to make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible.
5. The ongoing cooperation of the Department is welcome where AIE requests are refused and internal review decisions are appealed, however I would ask that the Department keep in mind it’s duty to provide adequate reasons in first instance decisions where a request is being refused in an effort to reduce the number of appeals received by this office going forward. This Office has a significant backlog of appeals, and it will be impossible to clear this backlog if public authorities do not issue comprehensive and lawful first instance decisions.
6. In OCE-146307-C2M9K6, while no specific exemption is relied upon in the decision to part refuse the request, the decision maker informs the appellant that some information requested is not compatible with available records. In OCE-147098-T7K4G4 the Department made a decision to refuse the information sought, relying on article 7(5) of the AIE Regulations on the basis that no information exists. Due to the nature of the decision-making in each appeal, I consider it appropriate to deal with these appeals in one decision.
7. The internal review decision in respect of appeal OCE-146307-C2M9K6 informs the appellant that “access to all of the Department’s available records that exist in material form was released to you at initial AIE stage, however some of the information which you have requested on your specific list is not compatible with all our available records held in material form”. No explanation was given as to how this statement related to the AIE Regulations. The Appellant submits that he did seek clarification on this in advance of submitting an appeal, however no clarification was received from the Department leaving him with no option other than to appeal the decision to this Office.
8. The internal review decision in respect of appeal OCE-147098-T7K4G4 affirms the original decision to refuse the appellant’s request on the basis that both the requested information does not exist and “that the request in case of non-existence of said document(s) (all information which relates to) is too expansive”. The decision does not outline the search steps that were conducted in relation to the internal review.
9. Article 7(5) of the AIE Regulations is the relevant provision of the Regulations when a request is refused on the grounds that a public authority does not hold the information sought, as follows:
“7(5) where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it.”
10. In cases where refusal is based on article 7(5) of the Regulations, the reasons for the conclusion that no relevant information is held by or for the public authority should be provided to the appellant. The requirement under article 7(5) of the AIE Regulations for a public authority to clearly set out the actions it has taken in response to a request is not only necessary for this Office in its considerations but also gives confidence to the appellant that suitable search procedures were conducted in response to their request.
11. 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.
12. The judgment of the High Court in Right 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”.
13. This view aligns with the decision of the Court of Justice of the EU in C-619/19 Land 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.”
14. It is clear from my review of the relevant decision-making records in both of these appeals that the Department’s decision-making process was not satisfactory having regard to the responsibilities placed on public authorities by the AIE Regulations, therefore it is not possible for the appellant to discern why his requests have been refused.
15. On initial examination of the relevant casefiles this Office’s Investigator engaged with the Department to highlight the lack of adequate reasoning contained in the relevant decisions. The Department subsequently agreed to review its internal review decisions and to issue a new decision to the appellant in each case. This decision therefore annuls the internal review decisions in each case.
16. Rights under the AIE regulations are very important and there is a clear duty on public authorities to comply with their obligations, including the obligation to give reasons. It is open to my Office to carry out a full investigation of these appeals, which would include seeking detailed focused submissions from the Department, providing same to the appellant for comment and then reaching an individual decision on each appeal. However, this would require significant additional time and resources for both this Office and the Department. Given the circumstances I consider that the AIE Regime is best served by annulling the internal review decision of the Department in each of these appeals. The appellant can appeal again to this Office if he is unsatisfied with the new decision.
17. Having carried out a review under article 12(5) of the AIE Regulations, I annul the internal review decisions of the Department both cases. The Department should now issue a new internal review decision in each case.
18. 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