Case number: OCE-114454-M0D7N0
23 June 2022
PDF of the issued decision can be found at the following link:
1. On 3 August 2021, the appellant made the following request to IFI under the AIE Regulations:
copies of all records held referring or relating to the fish kill as reported in this article: https://www.agriland.ie/farming-news/authorities-investigate-major-fish-kill-with-2000-fish-dead/.
2. On 17 August 2021, IFI refused access to the records as they were “part of an ongoing investigation”.
3. On 26 September 2021, the appellant wrote to IFI seeking an internal review of his original request.
4. On 5 October 2021, IFI issued the outcome of the internal review to the appellant. The internal review noted that the original decision to refuse had been affirmed on the basis of article 9(1)(b) of the AIE Regulations as the information related to “an ongoing investigation which may lead to court proceedings” and that “it would not be in the public interest to jeopardise this process by releasing records that may form part of a court case before completion of this legal process.”.
5. The appellant appealed to my Office on 14 October 2021 on the basis that IFI “have adapted an approach of using a class-based exemption to deny access to every single record” and that “no examination of records actually took place”. Since this appeal was accepted, IFI released the requested records to the appellant, with some information redacted. The appellant has stated that this matter would likely not have been appealed, had an explanation and a schedule of records been provided to him at the outset.
6. I have now completed my review under article 12(5) of the AIE Regulations.
7. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. The scope of this review is confined to whether IFI’s refusal of the information requested was justified under the AIE Regulations.
8. IFI sought to rely on article 9(1)(b) of the AIE Regulations as grounds for refusal in the internal review decision provided to the appellant. The appellant’s request for an internal review was not within the timeframe set out in the AIE Regulations. I believe IFI’s acceptance of the appellant’s request shows a reasonable and accommodating approach to answering AIE requests.
9. However, I consider it important to comment on the manner in which IFI has fulfilled its duties under the AIE Regulations. The substance of IFI’s responses to the appellant falls short of the standards required of a public authority when answering a request for environmental information. IFI’s original decision did not refer to any provision of the AIE Regulations when refusing the request. In addition, IFI’s original decision did not contain a weighing of the public interest served by disclosure against the interest served by refusal (as required by article 10(4) of the AIE Regulations), while its internal review decision made a passing comment about the public interest without engaging with the requirements of the AIE Regulations in this regard. IFI also failed to provide the appellant with a schedule of records.
10. In order to comply with its duties under the AIE Regulations, IFI must take steps in future to ensure that sufficient details are provided to appellants in respect of refusals of requests for environmental information.
11. On 16 December 2021, IFI made a submission to my Office in support of its position. It argued that an ongoing investigation into a significant fish kill was taking place and that release of the information would prejudice the investigation and any subsequent prosecution. On 7 June 2022, my Office contacted IFI seeking an update on the appeal. IFI responded on 8 June 2022 stating that the matter was heard in court on 26 April 2022. IFI also said that the release of records at this point would not prejudice the investigation and, as set out above, released relevant records to the appellants.
12. IFI did not, in my view, demonstrate that it had carried out a review of the records at issue in order to establish whether release of the information requested would have adversely affected the course of justice. IFI made a general statement as to what may have happened if the information was released. I would like to make it clear that it is unsatisfactory that IFI would seek to rely on article 9(1)(b) as grounds for refusal without providing details as to the basis on which it considered that the course of justice would be adversely affected. Blanket or class-based exemptions are not provided for under the AIE Regulations. Article 10(3) of the AIE Regulations clearly provides that the request must be considered on an individual basis with the public interest served by disclosure weighed against the interest served by refusal. IFI should therefore have been in a position to provide detailed reasoning to the appellant at the date of refusal, as mandated by article 7(4)(c) of the AIE Regulations.
13. I would remind IFI that it is best practice to provide a schedule of records for any AIE requests it receives. It is clear from the appellant’s correspondence that this appeal might have been avoided, had such information been provided.
14. Having carried out a review under article 12(5) of the AIE Regulations, I find that IFI was not justified in refusing the appellant’s AIE request. I therefore annul IFI’s decision. The information at issue has now been released, therefore I make no further findings on this appeal.
15. 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.
Commissioner for Environmental Information