Cinneadh
Mr B and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-127674-Q7S7W3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-127674-Q7S7W3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in its refusal of information under articles 9(2)(a) and 9(2)(b), and also if it was justified in refusing access to information under articles 8(a)(i), 8(a)(ii) and 8(a)(iii)
7 February 2024
1. On 14 June 2022, the appellant contacted the Department and requested the following:
“Information on all licences where the licensee has been notified by the Forest Service of a new Red Area (generated by a newly recorded Hen Harrier nesting site) which overlaps the licenced area.
The details sought are;
a. Licence number
b. Date that the Forest Service was made aware of the new nesting location
c. Date and means that the licensee was notified by the Forest Service (email, letter, phone call, etc.)
d. Records of any post-notification inspections carried out by the Forest Service to ensure compliance with the notification
e. Details of any agreement between the FS and the licensee to permit disturbance works to continue
I request that the information is provided in an electronic format as soon as is possible”.
2. The Department’s original decision of 12 July 2022 refused the appellant’s request on the basis that “the document [he] requested does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken”.
3. Following the appellant’s request for internal review on 25 July 2022, the Department’s internal review decision on 24 August 2022 varied the decision made by the initial decision maker. The Department’s internal review decision found that “the information is not stored in a database that can be accessed and produced in a reasonable timeframe”. The Department also added that access was being refused to the requested records under article 8(a)(iii) as “the release of this information could adversely affect the protection of the environment to which that information relates”. The Department outlined that the hen harrier species are protected and the release of such sensitive information on nesting sites would, outside of the licencing process, be detrimental to their environment and to their protected status in environmental legislation.
4. The appellant submitted an appeal to this Office on 26 August 2022.
5. 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. 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’).
6. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
7. I consider it important to express my views on some preliminary matters, which arise in this case. I do not consider the Department’s responses in this case to be in accordance with the duty to give reasons, which arises not only by virtue of the AIE Regulations and Directive, but 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.
8. The notable absence of any evidence to show that the Department meaningfully engaged with the request at either original decision stage, or at internal review stage is most disappointing. Where a public authority refuses a request on the basis that it does not hold information within the scope of that request, it should be in a position to set out clearly, the steps it has taken to identify and retrieve relevant information. In addition, if varying a decision at internal review stage, public authorities should be in a position to clearly provide the reasoning behind this decision.
9. Although the Department’s internal review decision made no further reference to the AIE Regulations, in its submission of 23 September 2022 it stated that where the internal review stated that the information being requested is not stored in a manner which can be easily accessed, that this scenario is “catered for” in the AIE Regulations in article 9(2)(a) and (b). The Department’s submission also made reference to article 8(a)(i) and 8(a)(ii) but did not provide any reasoning to the inclusion of these exceptions. Article 7(4)(c) of the AIE Regulations requires a public authority to specify the reasons for refusal of a request. The Department ought to be aware of the requirements placed on it by the AIE Regulations, and by the requirements of fair procedures, to provide reasons for its decisions. Neither of the Department’s decisions contained any adequate justification for its conclusion that the relevant exceptions relied on upon applied in this case.
10. 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, the public authority may be directed to make available environmental information to the appellant.
11. My review in this case is concerned with whether the Department was justified in its refusal of information under articles 9(2)(a) and 9(2)(b), and also if it was justified in refusing access to information under articles 8(a)(i), 8(a)(ii) and 8(a)(iii).
12. The Hen Harrier species (Circus cyaneus) is listed on Annex 1 of the Birds Directive ( Directive 2009/147/EC ), and in Ireland is protected under The Wildlife Act 1976 & Amendment Act 2000 . Annex I refers to a list of species that require strict protection due to their populations declining seriously throughout their respective ranges.
13. The Forest Service of the Department is responsible for regulating key forestry activities, and also has key responsibilities under the European Communities (Birds and Natural Habitats) Regulations 2011 ( S.I.477 / 2011 ), which imposes an obligation on the Forest Service to be responsible for relevant aspects of the Birds and Habitats Directives. The Forest Service must ensure consistency with Article 6 of the Habitats Directive as well inter alia Articles 2, 3, 4 of the Birds Directive when assessing applications for approvals and/or licences.
14. Under Article 4 of the Birds Directive ( Directive 2009/147/EC ), six Special Protection Areas (SPAs), covering a total land area of c.1,671km², have been classified for the conservation of the Hen Harrier in Ireland. Appendix C of the Department’s Forestry Circular 02/2012 sets out that “Specific procedures apply in relation to applications for consent / grant approval / licences involving certain forestry operations which have the potential to disturb Hen Harrier breeding activity within and surrounding SPAs designated for the species”. These procedures, agreed with the NPWS, focus on disturbance operations within so-called ‘Red Areas’ during the Hen Harrier breeding season. Red areas are 1.2 km radius areas centred on known Hen Harrier nesting areas. Depending on the location of their centre point, Red Areas may encapsulate land outside the boundary of the SPA. The remainder of the SPA is referred to as ‘Green Area’. The identification of these ‘Red Areas’ was informed by the National Hen Harrier Surveys of 2005 and 2010. The Forest Service is made aware of any new breeding areas known to NPWS which results in an updating of the relevant red area maps.
Position of the parties
15. In its submission of 23 September 2022 to this Office the Department outlined that as in the internal review, the information requested is not stored in a manner which can be easily accessed. The Department commented that this scenario is “catered for” in the AIE Regulations in article 9(2)(a) and (b). Further, as noted above, the Department re-iterated its internal review position that article 8(a)(iii) would be relied upon as the release of such sensitive information on nesting sites would, outside of the licensing process, be detrimental to their environment and to their protected status in environmental legislation.
16. The Department submitted that the request, as currently worded, could be considered manifestly unreasonable having regard to the volume and range of information sought in accordance with article 9(2)(a). It submitted that the request would place an unreasonable demand on the Department’s resources and would disrupt the Department’s ability to perform its core functions.
17. The Department set out the following points with regard to Items (a) to (e) as requested by the appellant:
(i) Item (a) - Licence Number and
Item (b) - Date that the Forest Service was made aware of the new nesting location
The Department submitted that providing individual licence numbers would by default identify the spatial extent of HLNAs or red areas in question. It outlined that the Departmental Inspectorate would have identified the existing issued felling licences for validation checks (i.e. to see whether the licence is either still valid and if so whether red area conditions issued or not) by the Felling Section based on the updated HLNA information received from NPWS earlier in 2022. It noted that if a red area condition was not included on a relevant licence, then the licence conditions were amended to reflect fact that the licenced area was found within a red area.
(ii) Item (c) - Date and means that the licensee was notified by the Forest Service (email, letter, phone call, etc.)
The Department submitted that there are two distinct sources of any need to contact a licence holder to notify them that their project area, previously approved on the basis of being within a Green Area, is now within a newly created Red Area and hence subject to restrictions: The first (and main) venue is the annually updated High Likelihood of Nesting Layer (HLNA) which NPWS generates and supplies to the Department specifically for use as the Red Area underpinning the Disturbance Operations procedure. It noted that year-on-year there is always a certain amount of flux in the area between successive layers, as NPWS adds in newly-identified HLNAs and (as has happened recently) removes HLNAs considered as relics, based on the lack of observed breeding, due to various factors.
The Department stated that when it receives the new HNLA layer from NPWS and incorporates it into its systems as the Red Area layer, that it runs a cross-check to pick out new Red Areas, and within these, any licences previously issued without the restriction. It further outlined that this is where the exercise takes place whereby the Applicants are informed that their project area is now within a Red Area and hence subject to the timing restriction.
The Department submitted that the second avenue of this process is where the Department is informed by NPWS of a newly-discovered breeding location within the SPA(s). It noted that these are pretty infrequent, but typically come about due to observations on-the-ground by a NPWS Conservation Officer and that the coordinates are also typically included. The Department outlined that on receipt of such notifications, it immediately starts the process of creating a new Red Area around the location and adding that new Red Area to the Red Area layer currently in use. It further outlined that the Department also do a cross-check to catch any licences that are in the newly-created Red Area for the purpose of notifying the corresponding Applicants, as per above.
(iii) Item (d) - Records of any post-notification inspections carried out by the Forest Service to ensure compliance with the notification and
Item (e) - Details of any agreement between the FS and the licensee to permit disturbance works to continue
The Department submitted that the concern with releasing the notification letters to a 3rd party is that the full extent of the project area can be gleaned from the FLV or other sources, and that combining all of the notification letters together will enable the identification of the location of the newly-introduced Red Areas.
It noted that this is concern not only in relation to the conservation of the bird and legal provisions to ensure data security to ensure same, but also in relation to the conditions upon which the Department is able to acquire the HLNA data in the first place, which are based on the fact that the Department is to handle the Red Area layer as confidential information not to be shared with any 3rd party. It stated that issuing the notification letters would represent a sharing of the data, and that would threaten the arrangement currently in place. The Department subsequently made reference to article 8(a)(i) and (ii) but did not provide further comment on these cited exemptions.
(iv) The Department also stated that the public interest is clearly not served by the disclosure of such material as the nature of these sensitive sites mean that they need the most extensive protection.
18. The Department also supplied the Office with a further final submission in this case on 13 September 2023 and wished to give greater context of what is involved if a new hen harrier breeding area is created. The Department outlined that the Forestry Inspectorate is notified by the NPWS via email if a new hen harrier breeding area is created, and subsequently Forestry admin is notified by the Inspectorate that a new red hen harrier area has been generated and that new conditions needed to be added to existing licences. The Department added that administrative staff are provided with a list via email of licences that are affected and a member of administrative staff will then manually create a letter to explain to the forester and the owner of the change and that the green hen harrier conditions on their previously issued licence are now void and replaced with the more stringent red hen harrier conditions.
19. The Department further noted that if the file was not paper based, these letters would be uploaded to iFORIS, and also added that there is no central spreadsheet or document where these were listed or saved for a future date. It submitted that emails are automatically archived after two years as per the Departments retention policy, and that to locate the letters and individual licence numbers that were involved would require every licence ever issued (Department’s emphasis) to be checked to see if the manual letter had been uploaded or added to the paper file.
20. The Department submitted that with no way to search licences by hen harrier area every single licence would need to be manually checked, paper and iFORIS based, and stated that this is not something that is within the realm of a realistic search criteria. It submitted that across every year and all schemes that would encompass tens of thousands of licences, and further noted that if these licences were accessible it would not be possible to provide the applicant with the licence numbers as they would need to be redacted.
21. The Department outlined that the Hen Harrier is a protected species and red hen harrier conditions are currently redacted on all records that are made public on the FLV. It explained that the purpose of this is so that no one can map out the locations of nesting sites for the protected species as that could very well endanger them. It noted that if a member of the public, for example, historically saw licences refused due to the presence of a hen harrier breeding site then they could use the this requested information to remove the breeding site themselves.
The appellant’s position
22. The main thrust of the appellant’s submission is that in his view the Department’s decision was not adequately reasoned. He made reference to the fact that the Department provided no basis under the Regulations as to why information that it initially refused on the basis that it didn’t exist, was then alluded to actually existing at internal review decision but it could not be sourced. The appellant also submitted that the Department provided no evidence of an adverse effect that will result from the release of the information to justify the use of article 8(a)(iii).
23. The appellant submitted that the mere possibility of an adverse effect is not a sufficient basis to refuse an AIE request, and also contended how the internal review decision maker was in a position to determine that an adverse effect could result when no records were sourced.
24. He submitted that the information sought does not identify the location of any active nest sites, it is merely seeking to identify which licences have been affected, how notification was made and when notification was made. He also noted it is also seeking evidence of any compliance inspections regarding the notification.
25. The appellant outlined that in his view, Item (e) would have a very strong public interest case for release were it to be shown that the Department was permitting disturbance activity to a protected species. He also argued that there is a strong public interest case to be made for the release of the information requested as it is supporting evidence that the Department is applying adequate and timely procedures to ensure the conservation of a protected species.
26. The appellant submitted that there are five elements to his request and there is no evidence that the Department has applied article 10 (5) of the Regulations. He also noted that the scheme of the Regulations, and of Directive 2003/4/EC upon which the Regulations are based, makes it clear that there is a presumption in favour of release of environmental information. In addition, the appellant outlined that it is not evident to him that the Department is operating from the position of a presumption in favour of release of environmental information in this case.
Findings
Do Articles 9(2)(a) and 9(2)(b) apply in the circumstances of this case?
27. Article 9(2)(a) provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. This provision seeks to transpose Article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and, in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.
28. Article 9(2)(b) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request remains formulated in too general a manner, taking into account article 7(8). Article 9(2)(b) seeks to transpose Article 4(1)(c) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is formulated in too general a manner, taking into account Article 3(3), and, in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.
29. Articles 9(2)(a) and 9(2)(b) must be read alongside article 10 of the AIE Regulations, which provides for certain limitations on the ability of a public authority to refuse environmental information. 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 7(4)(c) of the Regulations requires a public authority to specify the reasons for refusal of a request.
30. The Minister’s Guidance at paragraph 12.8 states the following:
“Article 9[(2) …] clarifies that a public authority may refuse to make information available if the request is considered unreasonable due to the range of material sought, if the request is too general or if the material requested is not yet completed. Public authorities are requested to invoke these grounds for refusal sparingly, and to assist the applicant (to reformulate a request, for example) as appropriate.”
31. I note that the Department’s internal review decision did not explicitly make reference to article 9(2)(a) or 9(2)(b), however it noted at submission stage that where its internal review decision stated that the information being requested is not stored in a manner which can be easily accessed, that this scenario is catered for in the AIE Regulations in article 9(2)(a) and (b). The Department also submitted that the request could be considered manifestly unreasonable having regard to the volume and range of information sought in accordance with article 9(2)(a).
32. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, I must examine whether responding to the request would involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. In light of the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission, at paragraphs 101-115, I consider that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request.
33. The Department has provided very limited reasoning for its reliance on article 9(2)(a) of the AIE Regulations, save for stating that the request “as currently phrased would place an unreasonable demand on the Department’s resources and would disrupt the Department’s ability to perform its core functions”. The Department made a blanket estimate for the entirety of the request and stated that the “extensive searches…would take years to complete”. It outlined that “to locate the letters and individual licence numbers that were involved would require every licence ever issued” and that this would “encompass tens of thousands of licences”.
34. The Department failed to offer the appellant assistance in refining its request in order to avoid the request being refused, and also failed in its submissions to this Office to adequately consider any parts of the request separately. It even failed to state which parts of the request would be most onerous. As mentioned above, the Court of Justice of the European Union inT-2/03 Verein für Konsumenteninformation v. Commission , has made findings on when a public authority may be entitled not to examine the records at issue before refusing a request.
35. The Court stated that:
“it is only in exceptional cases and only where the administrative burden entailed by a concrete, individual examination of the documents proves to be particularly heavy, thereby exceeding the limits of what may reasonably be required, that a derogation from that obligation to examine the documents may be permissible.”
36. The Department, in this case, has not provided details to justify why this is an exceptional case as envisioned by the CJEU. It has argued that identifying records would, in of itself, be manifestly unreasonable but it has failed provide details and supporting information to explain why this is the case. It is not sufficient for a public authority to merely state that the burden examining records would be particularly heavy, it must justify its position where it is departing from the “elementary duty” to examine the documents at issue.
37. Taking all of the above into account, my view is that the threshold for finding the request to be manifestly unreasonable has not been met in this appeal. Accordingly, the Department has not established that article 9(2)(a) of the AIE Regulations applies to this request.
38. Additionally, as indicated, article 9(2)(b) of the AIE Regulations and Article 4(1)(c) of the AIE Directive respectively require that article 7(8) of the AIE Regulations and Article 3(3) of the AIE Directive be taken into account. Article 7(8) of the AIE Regulations provides that where a request is made by the applicant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request, invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request. Article 3(3) of the AIE Directive provides that if a request is formulated in too general a manner, the public authority shall as soon as possible, and at the latest within one month, ask the applicant to specify the request and shall assist the applicant in doing so e.g. by providing information on the use of public registers
39. There is no evidence before me which shows that the Department, at any stage of its decision making process, invited the appellant to make a more specific request or offer assistance in the preparation of such a request in this case, as set out in article 7(8) and also referenced in article 9(2)(b) of the AIE Regulations.
40. Accordingly, I find therefore, that the Department was also not justified in its decision to refuse the appellant’s request under article 9(2)(b) of the AIE Regulations.
Do Articles 8(a)(i), 8(a)(ii) and 8(a)(iii) apply in the circumstances of this case?
41. The original decision on this request did not make reference to article 8 of the AIE Regulations, but refused the request on the basis that the information sought did not exist or could not be found. At internal review stage, the Department located relevant information, but found that article 8(a)(iii) applied. When making submissions to this Office in support of its decision, the Department stated that articles 8(a)(i), (ii) and (iii) all applied to the information sought.
42. Article 8 (a)(i) is the relevant article of the AIE Regulations providing for the non-disclosure of personal information in certain circumstances. This provision states:
“8. A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information— (a) would adversely affect— (i) the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law”.
43. Article 8(a)(ii) provides that a public authority shall not make available environmental information where disclosure would adversely affect the interests of any person who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information.
44. Article 8(a)(iii) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the protection of the environment to which that information relates. This provision seeks to transpose Article 4(2)(h) of the AIE Directive, which in turn is based on Article 4(4)(h) of the Aarhus Convention. I note that the AIE Directive and the Aarhus Convention provide examples of the type of information intended to be protected, respectively referring to “the location of rare species” and “the breeding sites of rare species”.
45. Articles 8(a)(i), 8(a)(ii) and 8(a)(iii) must be read alongside article 10 of the AIE Regulations. 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. 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 authorize 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.
46. In this case, the Department have merely referred to article 8(a)(i) and 8(a)(ii) in its submissions with regard to its refusal of Items (d) and (e) of the appellant’s request. In relation to article 8(a)(i), there is no evidence to suggest that the Department carried out any examination of the information to determine if the particular information contained therein is, in fact, personal information which has the quality of confidence required to engage the exemption. In relation to article 8(a)(ii), the Department provided no explanation as to where the confidentiality of any such information is provided by law, nor did it identify any law upon which it was relying. Further, in relation to article 8(a)(ii) the Department provided no explanation as to why it was satisfied that the person was not legally obliged (and could not be legally obliged) to supply the information at issue to the Department, and it also omitted to explain why it was satisfied that the person supplying the information at issue had not consented to its disclosure.
47. In relation to article 8(a)(iii), the Minister’s Guidance, in considering “Material the disclosure of which would make it more likely that the environment to which such material related would be damaged” outlines:
“This exclusion is designed to cover information such as that pertaining to the location of endangered species where, for example, disclosure of detailed information would pose a risk to the continued integrity of rare specimens” (paragraph 11.4).
48. The Aarhus Guide notes that the equivalent provision in the Aarhus Convention allows public authorities “to protect certain sites, such as the breeding sites of rare species, from exploitation — even to the extent of keeping their location a secret. It exists primarily as a safeguard, allowing public authorities to take harm to the environment into consideration when making a decision whether or not to release information.”
49. I am satisfied that the purpose of article 8(a)(iii) of the AIE Regulations is to allow for the withholding of information where disclosure would be harmful to the protection of the environment. When relying on article 8(a)(iii) the public authority should identify the environment to which the information at issue relates and explain how disclosure of the information at issue would adversely affect the protection of that environment. Again, 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 protection of the environment being undermined must be reasonably foreseeable and not purely hypothetical.
50. In its internal review decision, the Department indicated that it was refusing access to all of the information at issue under article 8(a)(iii) on the basis that “the release of this information could adversely affect the protection of the environment to which that information relates”. However, the Department did not provide any evidence to substantiate how such an adverse effect could occur. The same can be said for article 8(a)(i) and 8(a)(i) where in both instances the Department made no attempt to demonstrate a clear link between disclosure and any adverse effect.
51. Furthermore, I wish to re-iterate the Department’s internal review position wherein it stated that the information being requested is not stored in a manner which can be easily accessed, and that this scenario is catered for in the AIE Regulations in article 9(2)(a) and (b). I do not see how the Department can expect to rely on article 8 exceptions if, owing to its reliance on the requested information being manifestly unreasonable to collate, it does not have sight of any relevant information pertaining to the appellant’s request which could allow it to determine if any adverse effect would occur.
52. Further, even if article 8(a)(iii) had been justified in respect of the information sought, the Department would have still needed to consider the public interest balancing test as required by article 10 of the AIE Regulations. I find that it is not possible for the Department to have correctly considered the application of article 8(a)(iii) or article 10(3) of the AIE regulations in the circumstances where it does not appear to have adequately considered the information in question. Neither does the Department appear to have adequately considered the question of partial disclosure in accordance with article 10(5) or the requirements. In those circumstances, it is not clear to me how the Department could have weighed all relevant factors as required in order to determine whether the public interest in disclosure of the relevant information outweighed any interest served by its refusal. It is therefore not clear to me that the Department complied with its obligations under articles 10(3) and 10(4) of the Regulations.
53. Accordingly, taking the above into account, it is my view that sufficient reasoning has not been provided to justify the application of any of the provisions of article 8 of the Regulations.
Conclusion
54. On the facts of this case, and taking all of the above into account, it is my view that the Department was not justified in its reliance on article 8(a)(i), 8(a)(ii), 8(a)(iii) and also article 9(2)(a) and 9(2)(b). The Department also provided no basis under the Regulations as to why information that it initially refused on the basis that it did not exist, was then alluded to actually existing at internal review decision but it could not be located owing to its reliance on the request being manifestly unreasonable. Accordingly, I consider that the most appropriate course of action to take is to annul the decision of the Department in its entirety and direct it to undertake a fresh decision-making process in light of my findings above.
55. In light of my conclusion that the exceptions do not apply, it is not necessary for me to consider the public interest balance under article 10(3) of the AIE Regulations.
56. In processing the request afresh, however, the Department should have full regard to the provisions of the AIE Regulations. In particular, the Department should carefully consider the specific public interest considerations arising in this case in favour of release of the information at issue, against the interests served by not releasing it.
57. Furthermore, should the Department wish to rely on article 9(2)(a) in processing a new decision, I would remind it that the Minister’s guidelines provide that should a public authority seek to refuse a request under article 9(2) of the AIE Regulations, it should first assist the appellant to reformulate the request as appropriate. I would suggest, in this case, that the Department and the appellant liaise with a view to fully processing the request as efficiently as possible.
58. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision. I direct it to carry out a fresh decision making process.
59. 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