Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-151502-F3F5C5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department conducted adequate searches such as to identify all information relevant to the appeal, in accordance with the requirements of article 7(5); and whether it was justified in withholding information on the basis of article 9(1)(b) of the AIE Regulations.
6 March 2025
1. On 30 May 2024 the appellant made a request to the Department of Housing, Local Government and Heritage (the Department) under the AIE Regulations seeking access to:
“Information relating to any investigations (please interpret the term broadly) resulting from a referral made to the NPWS on the 3-4-24 regarding the conduct of the Forest Service of DAFM in relation to disturbance activity resulting from forestry operations under licence KY04-FL0084.”
2. On 27 June 2024 the Department issued its original decision, citing that after conducting a search for the relevant record(s) it had not identified any information relevant to the request.
3. On 28 June 2024 the appellant sought an internal review of the decision, citing that the Department failed to elaborate sufficiently on the searches undertaken and therefore the Department has failed to establish that all reasonable steps have been taken to identify information falling within the scope of the request.
4. On 26 July 2024 the Department, issued an internal review decision which varied the original decision, stating that:
a. A relevant record has been identified and a revised Schedule of Records was being provided to the appellant.
b. A decision to refuse this record has been made in line with article 8(a)(iv) of the AIE Regulations and Section 31(1)(a) of the Freedom of Information Act 2014.
5. Between 26 July 2024 and 19 August 2024 the appellant sent a number of emails to the Department with respect to the internal review decision. This communication primarily concerned the reliance of the Department of article 8(a)(iv) with respect to professional privilege, noting a previous OCEI decision ( OCE-136661-W9W3K2 ) which has determined it should be dealt with under article 9(1)(b).
6. The appellant further contended that article 9 is discretionary and that the Department have not provided an adequate case, under article 10, in terms of the adverse impact of releasing the record. He further queried if the Department had received a response from the legal services unit, as it is not identified on the schedule of records.
7. The department provided two email responses to the above queries, reiterating the statement of its internal review decision and noting that “all documents within the scope of your request have been identified”.
8. 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 the submissions made by the appellant and the Department of Housing, Local Government and Heritage. In addition, 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’).
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. In accordance with article 12(5) of the AIE Regulations, my role is to review the Department’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Department to make available environmental information to the appellant.
11. The appeal is concerned with whether the Department conducted adequate searches such as to identify all information relevant to the appeal, in accordance with the implicit requirement of article 7(5); and whether it was justified in withholding information privilege under article 9(1)(b) of the AIE Regulations.
12. On 26 August 2024 the appellant submitted an appeal to this Office, on the basis of their view that the Department had incorrectly relied upon article 8(a)(iv) as a grounds to refuse access to the record, further that:
“The application of article 10(3) is deficient as it has failed to weigh the public interest in favour of release. This suggests that the public authority has a pre-determined position regarding the public interest relating to the information falling within the scope of this request. This is not consistent with a correct implementation of the Regulations. LPP is not a specific basis for refusal under the Regulations. The public authority should be required to demonstrate that an exception applies and then produce a proper response to article 10(3) before I am asked to make a public interest case for release of this information”.
13. The appellant also submitted that in their view the Department had failed to carry out adequate searches with respect to the scope of the request.
14. On 1 October 2024 the Department made a submission to this Office in respect of this appeal.
15. While the original and internal decision to the appellant not to release the information relied primarily on article 8(a)(iv) of the AIE Regulations, the Department furthered this position by relying also on article 9(1)(b) in its submission to this Office.
16. Regulation 9(1)(b) provides that: “a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect— (b) the course of justice (including criminal inquiries and disciplinary inquiries)”.
17. The relevant points made by the Department within their submission to this Office are noted below:
a. “It is the Department’s view that as the record in question is a request for legal advice, it is subject to legal privilege, relevant to article 9(1)(b). The Department notes that legal advice privilege arises in respect of a confidential communication or a continuum of communications, or a reference to such communications, that takes place between a professionally qualified lawyer and a client, in the course of a professional legal relationship, in which legal advice is sought and/or received.
b. The Department assert that the record in question came into being as a direct result of a purported breach of the European Communities (Birds and Natural Habitats) Regulations, 2011, therefore clearly constituting a legally privileged communication between a client (the Department) and the Department’s legal advisor”.
18. In advancing this contention further, the Department has drawn attention to OCEI decision OCE-136661-W9W3K2, quoting from that decision as below:
“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 ]).”
19. It is the Department’s position that the factual situation of this appeal is the same as that of OCEI decision OCE-136661-W9W3K2.
20. With respect to the public interest test under article 10(3) and (4) of the AIE Regulations, the Department notes that it “acknowledges the important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive, and in the openness and transparency of the Government’s decision-making processes in environmental matters” however contends that;
a. release of this record would undermine the Department’s right to legal privilege;
b. could prejudice the investigation of the matter, the subject of the request for advice, and;
c. may lead to situations which discourages the Department from seeking legal advice in a full and frank manner going forward, which would prejudice its ongoing obligation to exercise its statutory functions.
21. The Department did not refer to how the records were searched/identified, in its initial submission to this Office.
22. On 13 February 2025, the investigator assigned to the appeal requested further submissions from the Department with respect to aforementioned searches, with the Department returned by way of further comments on 19 February 2025, key points summarised below.
23. The Department states that searches were undertaken of emails by all relevant individuals who were involved in receiving the complaint purporting to a breach of the European Communities (Birds and Natural Habitats) Regulations, 2011. The details of these individuals were provided to this Office. These searches used search term KY04-FL0084 and confirmed that no further information was held in relation to this license that was within the scope of this request.
24. One request for legal advice relating to the complaint on KY04-FL0084 had been submitted by the relevant subject matter experts in NPWS during the timeframe relevant to this complaint. The Department confirmed that if the request for legal advice had overlapped with any other request, the legal advisor would have informed the subject matter expert that this was the case.
25. Searches were undertaken by all individuals who had received the complaint and/or were responsible for taking action relating to the complaint. These searches used the licence number and the names of subject experts in the Department of Agriculture, Food and the Marine and Coillte. The Department confirmed that no further information was identified that came within the scope of the request.
26. A summary of the above observations was given to the appellant for further comment.
27. The first issue to be considered in this appeal is whether the Department of Housing, Local Government and Heritage, having asserted that it has provided to the appellants all the information that it holds and that is relevant to the request, has complied with the implicit requirement of article 7(5) of the AIE Regulations to conduct adequate searches such as to identify that information.
28. This Office’s approach to dealing with this type of case is to assess whether adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied. What will be considered reasonable will vary from case to case.
29. It is relevant here to note the explanation given by the Department as to why it varied its original decision and identified a relevant record in the internal review decision, quoted below:
“As part of this process I have examined the original search and am of the view that the Department took all reasonable steps to identify information falling within the scope of the request. With respect to the meaning of “information”, that was taken to be, for example, emails and briefing documents.
All possible relevant sections were contacted, including four Directorates across NPWS, and it was confirmed that they held no relevant records and as such no records were identified which came within the scope of the request.
The only potentially relevant record that came within the appropriate timeframe were held by the Scientific Advice and Research Directorate and the Legal Advisor. At that time the decision maker considered that such a record was outside the scope of the term “investigation” as they were a request for legal advice (and thus legally privileged) rather than being a direct investigation into the Forest Service’s actions/the forester’s actions. As part of this internal review, I am of the view that it could be considered that this record is within the scope of the request and therefore I have provided a revised Schedule of Records which includes same.”
30. The Department contends, in its decision communication to the appellant and in submissions to this Office, that no further record(s) exist that come within the scope of the AIE request, outside of a request for legal advice – the sole record which has been identified. Steps taken to identify this record are outlined in points 23-25 above. The Department confirmed that the response to the request for legal advice postdates the AIE request that is the subject of this appeal, and therefore does not come within the scope of this request. It is open to the appellant to submit a new request to the Department should he wish to do so.
31. It is my view that the presence of the record identified as a single record with respect to the information in question is reasonable considering the timeframe of the request. The request sought information from 3 April 2024 and the request was made on 30 May 2024, a period of approximately eight weeks.
32. In considering the above, and the submissions made by the Department, I am satisfied that the Department has conducted adequate and reasonable searches to identify, locate and retrieve any information relevant to the request the subject of this current appeal, and accordingly has satisfied the requirements of article 7(5) of the AIE Regulations to release that information except where pertinent exemptions apply and to refuse information that is not held by, or for the public authority and to notify the appellants of this fact as soon as possible. In this appeal, one record was identified and withheld from the appellant on the basis of legal professional privilege, and to this matter I turn below.
Information withheld on the basis of legal professional privilege (LPP)
33. While the Department initially relied on article 8(a)(iv) to justify refusal in its original and internal decision, it is my view that, in this case, protection for LPP most appropriately falls within the exemption in article 9(1)(b) of the AIE Regulations and the Department was correct in relying on this article primarily in its submission to this Office.
34. 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).
35. In light of the guidance set out in McMahon v Irish Aviation Authority [2016 IEHC 221 ], I understand that for LPP 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.
36. It is the Department’s view that as the record in question, a request for legal advice, it is subject to legal privilege, relevant to article 9(1)(b). The Department assert that the record in question came into being as a direct result of a purported breach of the European Communities (Birds and Natural Habitats) Regulations, 2011, therefore clearly constituting a legally privileged communication between a client (the Department) and the Department’s legal advisor.
37. In this case, I accept the contention of the Department that LPP attaches to the entirety of the information in the record it has refused to release, for the following reasons:
a. it is clear that the information in the record reflects a communication between the Department (client) and the Department’s legal advisor, who is a Solicitor and Advisory Counsel;
b. the Department’s submission that the communications were made in confidence;
c. the relationship between the Department and its legal advisor in this context is a professional legal relationship;
d. the record is a direct request for legal advice required, arising from a complaint of alleged breaches of environmental law.
38. I have not seen anything to indicate that LPP has been waived by the Department in this instance.
39. Accordingly, my view is that the information sought is protected by LPP. The appellant is correct in his assertion 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.
40. With respect to the public interest test under article 10(3) and (4) of the AIE Regulations, the Department notes that it “acknowledges the important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive, and in the openness and transparency of the Government’s decision-making processes in environmental matters” however contends that;
a. release of this record would undermine the Department’s right to legal privilege;
b. could prejudice the investigation of the matter, the subject of the request for advice, and;
c. may lead to situations which discourages the Department from seeking legal advice in a full and frank manner going forward, which would prejudice its ongoing obligation to exercise its statutory functions.
41. In favour of refusal, I note that the case law referred to above 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.
42. 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 Government’s decision-making processes in relation to environmental matters.
43. I note also the appellant’s argument that a public authority acts on behalf of the public that it serves and, where a public authority is involved, the public is the ultimate client for the advice. Further, that the public authority should seek legal advice such that it can act in the public interest in applying the law and that it is in the public interest that the public can understand the application of the law.
44. However, having considered the interest in directing release of the specific legal advice request 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 seeks from its legal counsel. 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. Having reviewed the relevant record in this case, I have not found any reason that would cause me to find that directing release of privileged information would be warranted in this case.
45. 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.
46. Accordingly, I affirm the decision of the Department to refuse access to the information sought, but I vary the basis for doing so and find that article 9(1)(b) applies to the withheld information and that the interest in refusal outweighs the public interest in disclosure
47. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department of Housing, Local Government and Heritage’s decision.
48. 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