Decision
Mr F and Office of Public Works
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144138-L8X2M3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144138-L8X2M3
Published on
Whether the OPW was justified in refusing the appellant’s request based on article 7(5) of the AIE Regulations, whether the OPW had taken adequate steps in an effort to identify all relevant information and whether it was justified in withholding one record in full and releasing one further record in redacted form based on article 8(a)(iv)
6 December 2024
1. On 1 September 2023, the appellant made a five-item request to the OPW under the AIE Regulations for various records relating to a bid for land adjoining Castletown House, Celbridge, County Kildare. Item 1 of the request, which as will be seen below is relevant for the purposes of this decision, was textually as follows:
“A copy of the offer/bid/tender made by the OPW for the purchase of approx. 235 acres of land adjoining Castletown House, Celbridge Co. Kildare (Folio No. KE3071F) in or about September 2022 and any further bid/offer made to the date of this request.”
2. On 4 October 2023, having received no response from the OPW, the appellant requested an internal review of the deemed refusal of his request.
3. On 6 November 2023, the appellant wrote again to the OPW, noting that the date for an internal review decision had passed and requesting an indication of whether a decision would issue.
4. On 14 November 2023, the appellant appealed to this Office against a deemed refusal by the OPW, having received neither first instance nor internal review decisions in response to his request.
5. On 22 November 2023, the OPW issued a late internal review decision, accompanied by a schedule of 37 records. Of these records, 24 were released to the appellant and, in reliance on exemptions within articles 8 and 9 of the AIE Regulations, 10 were withheld in full and three were released with redactions.
6. On 24 November 2023, the appellant appealed to this Office against the internal review, stating that the information released had been redacted, certain information had not been released and further information existed which had not been retrieved.
7. Following communication with the investigator assigned to this appeal, the OPW released all but two of the remaining records in full. One record was withheld in full, namely a legal letter from a private landowner’s solicitor, and one redaction was applied to another record entitled OPW PAS brokerage advice.
8. The appellant has confirmed to this Office that he wishes to continue his appeal, specifically noting on more than one occasion that the information provided by the OPW did not include information sought by him in part of item 3 and in item 5 of his original request, respectively, as follows:
a. A copy of the decision/approval/minutes of meeting of the OPW to issue the offers/bids/tenders for the purchase of approx. 235 acres of land adjoining Castletown House, Celbridge, County Kildare (Folio No. KE3071F).
b. Records of correspondence, communications, emails, meetings, minutes of meetings between the OPW and elected representatives including local councillors, TDs and Ministers in relation to Castletown House and the lands surrounding Castletown House, including the approx. 235 acres of land within Folio No. KE3071F, between 1 July 2022 and 1 September 2023.
9. 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 OPW. 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’).
10. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
11. 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.
12. The scope of this review is confined to whether the OPW has taken reasonable and adequate steps to identify all information held by or for it within the scope of (i) that part of item 3 of the appellant’s request which he asserts remains to be released and also (ii) item 5 of the request, such as to comply with article 7(5) of the AIE Regulations.
13. I note that no first instance or internal review decisions issued from the OPW in this case in response to the request. Only following submission of an appeal to this Office on 14 November 2023 did the public authority respond with an internal review decision, dated 22 November 2023. The AIE Regulations are quite clear, at article 7(2)(a), that public authorities “shall make a decision on a request…at the latest…not later than one month from the date on which [a] request is received”. Given that article 10(7) of the Regulations provides that “[w]here a decision is not notified to the applicant within the relevant period specified in article 7, a decision refusing the request shall be deemed to have been made by the public authority concerned on the date of expiry of such period, the appellant was entitled to seek an internal review of that deemed refusal and, in accordance with article 11(3), to receive a response “within one month from receipt of the request for the internal review.” Public authorities are reminded that the AIE Regulations are a key piece of secondary legislation, namely Statutory Instrument 133 of 2007 (as amended), which has as its source the European AIE Directive, 2003/4/EC on public access to environmental information. It is, accordingly, necessary for public authorities to have in place all resources necessary in order to comply with their obligations under the Regulations and, ultimately, the Directive, notwithstanding any circumstances extant at the time of a request that may impact negatively on those resources, as I understand the case to have been in respect of the request for information in this case.
14. The two elements of his original request that, in the view of the appellant, remain to be satisfied, are the following:
Item 3 of the original request:
“A copy of the decision/approval/minutes of meeting of the OPW to issue the offers/bid/tender identified at item 1 [see paragraph 1] above and any records which informed or were relied on in that decision/approval/meeting incl. valuations & reports.”
Item 5 of the original request:
“Records of correspondence, communications, emails, meetings, minutes of meetings between the OPW and elected representatives including local councillors, TDs and Ministers in relation to Castletown House and the lands surrounding Castletown House, including the approx. 235 acres of land within Folio No. KE3071F, between 1st July 2022 to the date of this request.”
15. The internal review letter that issued to the appellant on 22 November 2023, and which was accompanied by a detailed schedule identifying 37 relevant records, was generic in nature and gave no detail in relation to any of the records on the schedule, only referring to the records withheld and partially redacted, 13 in number. In submissions made to this Office dated 25 January 2024, the OPW went into some detail regarding the reasons for withholding and partially redacting those 13 records. However, as stated, these records have either been released to, or are no longer sought by the appellant.
Searches for information in accordance with articles 7(1) and 7(5) of the AIE Regulations
16. During the course of the review of this appeal, the investigator assigned to it sought detail from the OPW in regard to the depth of the searches conducted in order to identify, locate and retrieve any information pertinent to the outstanding items from the appellant’s original request. A prerequisite to a public authority’s being able to assert that information relevant to a request is not held by or for it is to provide evidence that it has conducted adequate and reasonable searches to find it, in accordance with the cumulative requirement at articles 7(1) and 7(5) of the AIE Regulations. Article 7(1) requires a public authority to “make available to an applicant any environmental information, the subject of the request, held by, or for, the public authority.” Article 7(5) provides that where such information “is not held by or for [it]…that authority shall inform the applicant as soon as possible” of this fact. In its internal review decision, the OPW had stated that it “was to the knowledge of the decision maker that all records had been retrieved relevant to the request at the time and that all necessary actions in achieving this were carried out ” [emphasis added]. No detail in regard to the nature of the searches had been provided by the OPW.
17. In correspondence with this Office, a member of the OPW AIE team indicated that she had found a “minute” that might fit the description of the record sought by the appellant in item 3 of his original request (see paragraph 14), stating an intention to release it. In respect of the other outstanding item of the appellant’s original request (item 5), the same staff member indicated that a search had been carried out but that no record of it existed, as it had been conducted by a departed member of the AIE team. However, a repeat search would be carried out in order to have a record of same.
18. After the space of a month, during which time this Office received no correspondence in relation to release of the “minute” or of the promised repeat search, the investigator enquired of these matters.
19. One further month later, on 25 September 2024, the OPW staff member indicated that she was awaiting approval to release the “board minute”. No mention was made of the repeat search.
20. At the date of this decision, no further contact has been made by the OPW with this Office in relation to this appeal. I consider that this Office has made concerted attempts to bring this appeal to a resolution and that it would not have been reasonable to expect its staff to expend more time in an effort to secure productive engagement to that end from the OPW.
21. Given this circumstance, I am of the view that the most appropriate course of action in this case is to annul the decision of the OPW. The OPW should now carry out a new internal review process, which should include further searches in order to identify and retrieve all information relevant to the appellant’s request. Details of the searches carried out should be provided to the appellant in the new decision. The new decision should also consider whether to withhold or release the board minute which had been identified by the OPW during the course of this appeal, and should reconsider whether to withhold or release records 8 and the redacted part of record 12, which I will comment on further below. If the OPW should consider that any exemption from release under the AIE Regulations applies to any element of the information relevant to said items 3 and 5, it should explain to him in clear terms the reasons it is relying on any such exemption. If the appellant is not satisfied with this new internal review, he will be at liberty to appeal it to this Office afresh.
22. During the course of this appeal, the OPW released a substantial amount of information to the appellant, which is most welcome, but continued to withhold record 8, and one part of record 12. The OPW’s submissions stated:
“Record 8 is being withheld in full as it is a communication that is legally privileged in our view and covered by Article 8(a) (iv).
Records 12 is being partially withheld. Please note that the only information being withheld is the name of the particular solicitor from the Chief State’s Solicitors Office that has been named in the report. All other previous sections that had been redacted is now being released.”
23. The appellant did not make any further submissions in relation to these documents, and therefore it is unclear if he continues to seek them. However, as I am already remitting this matter to the OPW for a new decision, I consider it appropriate for the OPW to reconsider these two records in that decision, and provide the appellant with a full explanation as to how the relevant exemptions apply to the withheld information. The reasons given above are not sufficient to justify refusal of the information sought, as the OPW has not provided sufficient reasons for how the exemption cited applies and has not considered the public interest test. The OPW should note that it is the position of this Office that claims that a document is legally privileged are more appropriately considered in the context of article 9(1)(b). In order to rely on this exemption, a public authority must explain which type of legal privilege applies to the document in question, by reference to the relevant case law, and how the release of the information sought would adversely affect the course of justice. The public authority must also consider the provisions of article 10, in particular the public interest balancing test, when seeking to withhold information under the AIE Regulations.
24. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the OPW’s decision. The OPW should carry out a new internal review process, which should include further searches for information relevant to the appellant’s request. The OPW should also consider whether to withhold or release the board minute, record 8, and the redacted part of record 12 in this new decision.
25. 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