Whether ABP was justified in refusing a request for a pre-application consultation file for a proposed strategic infrastructure development (SID) project relating to the export of wind energy
28 August 2018
The Greenwire Project is a wind energy project aimed at constructing windfarms in Ireland to supply energy to the UK. In July 2012, Element Power Ltd (EP) entered into a pre-application consultation with ABP on the “Proposed Greenwire Project comprising over 40 wind farms, cable collector system and converter station, and underground cables to two grid connection points in Wales”. The Counties (and local authorities) listed were Kildare, Laois, Offaly, Meath, Westmeath, Carlow, Wexford, South Dublin, Dun Laoghaire Rathdown and Fingal. At the time of this decision the ABP website states that this consultation has yet to be concluded.
The strategic infrastructure provisions of the Planning and Development (Strategic Infrastructure) Act 2006 came into effect on 31 January 2007 and provides generally for applications for permission/approval for specified private and public SIDs to be made directly to ABP. These generally relate to major energy, transport and environmental infrastructure projects. The statutory provisions provide for up to three stages – pre-application consultations; scoping of the Environmental Impact Statement; and the application for permission.
It is a mandatory requirement for a prospective applicant for planning permission for SID to enter into pre-application consultations with ABP and obtain notice from ABP stating whether or not the proposed development is regarded as a SID. There are no statutory timelines within which pre-application consultations must be completed On completion of pre-application consultations, ABP’s determination on the status of the proposed development will be recorded on ABP’s statutory weekly list of cases decided on the website and a copy of the file, including the records of any meetings, will be made available for public inspection.
On the 3 May 2017, the appellant made a request to ABP under the European Communities (Access to Information on the Environment) Regulations 2007 to 2014 (the AIE Regulations) for a digital copy of the pre-application documents relating to project PL09.PC0148 ‘Greenwire Project’.
On the 17 May 2017, ABP refused the request on the grounds that it ‘concerns material in the course of completion’ or unfinished documents or data, pursuant to article 9(2)(c) of the Regulations. Article 9(2)(c) provides that refusal is discretionary where the request concerns material in the course of completion, or unfinished documents or data.
On 26 May 2017 the appellant requested an internal review of the decision and ABP affirmed its original decision on 19 June 2017.
On 17 July 2017 the appellant appealed to my Office.
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 ABP, the appellant and EP. I have also had regard to: the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations; Directive 2003/4/EC, upon which the AIE Regulations are based; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide] relating to the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which is more commonly known as the Aarhus Convention.
Scope of Review
The withheld information includes emails and minutes of meetings between EP and ABP, ABP and the Commission for Energy Regulation (now the Commission for Regulation of Utilities), ABP and the Department of Communications, Energy and Natural Resources (now the Department of Communications, Climate Action and Environment), presentations and project information created by or on behalf of EP, ABP memoranda, letters, briefing notes, the pre-application consultation form and maps. ABP did not argue that the file or specific parts of the file does not contain environmental information. Nonetheless, I have decided to consider this question before proceeding to examine the decision to refuse access to the information requested. I am satisfied that the information requested relates to environmental information as per article 3(1)(c) of the AIE Regulations.
Article 3(1) provides that “environmental information” means any information in written, visual, aural, electronic or any other material form on:
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);
The public authority’s position
ABP in its submissions maintained that its internal review decision was correct. It considered the pre-planning consultation process to be an ongoing process yet to be concluded and that a “prospective applicant may revert to the board to seek a request for a further meeting and the pre-application consultation and the documents relating to it are therefore considered a case/material in the course of completion, or unfinished documents or data, pursuant to article 9(2)(c)”.
In submissions to my Office ABP put forward the following arguments:
- The public interest lies primarily within the process governing any subsequent formal planning application for the proposed development the subject of the pre-application consultation process. The development application is still open to change at this point and dissemination of the details from this stage “may lead to confusion over the nature of the proposed development”.
- In accordance with the relevant legislation, ABP makes the pre-application consultation documentation a matter of public open record once the pre-application consultation phase has formally concluded. This information, along with other application documentation must be available to the public, who may make submissions on the planning application in advance of any decision being made.
- Making a decision under section 37b of the Planning and Development Act, 2000, as amended, involves ABP making a determination on whether a potential application meets the criteria for a SID and this process is designed by the Oireachtas to remain private until concluded. Making the information available would interfere with this function, the statutory framework imposed by the Oireachtas and the privacy of the prospective applicant.
- There is no finalised planning application in relation to the proposed development the subject of this pre-application consultation request nor is there any certainty that an application will ever exist.
- Should an application arise, full public participation is guaranteed under various provisions of national legislation.
- Once the process is closed by the prospective applicant, all documents will be made available to the public. ABP outlined timelines for the making available of planning documentation to the public and the opportunities for public participation.
- Section 50 of the Planning and Development Act, 2000, as amended, provides for applications for judicial review of planning decisions.
- There is an expectation of confidentiality by a prospective applicant when they enter into the process.
The appellant’s position
The appellant’s position is that ABP did not give full and appropriate consideration to her AIE request and request for internal review. The points argued were as follows:
- There was no reason given why the submissions and minutes for the consultation meetings which were conducted to date should be considered “material in the course of completion”. This should be considered in the context of the pre-application consultation having begun in 2012. The records of past meetings are a matter of historical record rather than material in the course of completion.
- ABP did not conduct any public interest test as required by article 10(3), particularly in light of this being a strategic infrastructure project. Article 10(3) provides that the Public Authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal.
- ABP did not consider article 10(4). Article 10(4) provides that the grounds for refusal of a request for environmental information shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.
- ABP did not itemise the documents which it holds for this project or provide reasons for refusal in each case or give any consideration as to whether the information could be released separately.
The following public interest arguments for release were put forward by the appellant:
- The public interest in environmental information and access to same is much broader than and reaches beyond the boundaries of the planning system. Just because the information is guaranteed within the formal planning process (should the project move to this phase), it does not mean that the public interest in this information is lessened or restricted to the participation process. It is not only planning projects that are subject to AIE Regulations but all environmental information that is held by or on behalf of public authorities.
- The public awareness and understanding of “massive sub-national energy infrastructure plan”' should not be limited to a formal planning process and should extend across the full life cycle of the project. It is therefore not in the public interest that the pre-planning phase be used as a mechanism to withhold information indefinitely.
- She provided examples of a number of “sub-elements of the Greenwire Project” which are moving or have moved separately through the planning process. The appellant’s position is that because these projects have progressed separately, this would seem to indicate that the pre-application consultation might never formally conclude but the entire project might be progressing in a piecemeal manner.
- In relation to concerns that public confusion could result from release of documentation, once they are clearly dated, there would be little cause for public confusion. She gave the example of Dáil records which record the evolution of legislation and various debates.
- There is public interest in transparency and accountability and a public interest in the accountability of the pre-planning consultation system. Not releasing the information could potentially be damaging to ABP as records are historical facts that should be communicated to the public. She cites the ABP “Code of Conduct for Board Members, Employees and Certain Other Persons” and in particular its mission statement: “To play our part as an independent body in ensuring that physical development and major infrastructure projects in Ireland respect the principles of sustainable development and are planned in an efficient, fair and open manner”.
Element Power’s Position:
EP on invitation from my Office, expressed its concern about the release of information on a project that is still in the pre-application consultation phase with ABP. It acknowledged that the project has not been active recently due to a lack of policy for the export of renewable energy but stated that given the huge onshore wind resource in Ireland, there is likely to be some future export of renewable energy. Therefore it argued that it is not unreasonable to assume that a specific policy for the export of renewable energy is likely to become part of Ireland’s energy policy in the future. It argued, because of this, the information contained in the documentation submitted to ABP as part of the pre-application process is commercially sensitive. It said that if the information was released now it would have a material impact on EP’s business as other parties could use the information provided by EP as part of the process to advance similar concepts during the period before that policy is put in place.
Refusal under article 9(2)(c)
ABP maintained that the pre-application process is considered to be a single on-going process between formal opening and closing of such consultations. It said that this reflects the statutory provisions relating to such consultations as set out in sections 37a to 37c of the Planning and Development Act, 2000 as inserted by section 3 of the Planning and Development (Strategic Infrastructure) Act 2006. Its position is that all records held, including emails, minutes of meetings, presentations, relating to the pre-application consultation are considered to be material in the course of completion, or unfinished data, pursuant to article 9(2)(c) of the AIE Regulations.
Having considered the arguments, reviewed the content of the information and the time period that the information relates to, I do not consider the information to be "material in the course of completion". I do not accept that the request "concerns" material in the course of completion or unfinished documents or data within the meaning of the AIE Regulations. The fact that EP could return to the pre-application consultation process at any stage does not alter the fact that the information which is clearly identified as being from a particular period in time from the past is, in and of itself, complete.
As I have previously stated in CEI/14/007
(available on www.ocei.ie
) my view of the matter is bolstered by reference to the Aarhus Guide, which confirms that "it is clear that the expression 'in the course of completion' relates to the process of preparation of the information or the document and not to any decision-making process for the purpose of which the given information or document has been prepared". The Guide also explains: "Similarly, the mere status of something as a draft alone does not automatically bring it under the exception. The words 'in the course of completion' suggest that the term refers to individual documents that are actively being worked on by the public authority. Once those documents are no longer in the 'course of completion' they may be released, even if they are still unfinished and even if the decision to which they pertain has not yet been resolved. 'In the course of completion' suggests that the particular document will have more work done on it within some reasonable time frame."
Having regard to the above, I consider the documents in this case to be a completed ‘snapshot’ of the planning pre-application process. For completeness, I should add that I do not accept that release of the information would as argued by ABP be misleading. Even if it were to be so, that is not a justification for refusal to provide access. It would, in any case, be open to ABP, when releasing information which it feared might be misleading, to provide explanatory information to help recipients of the information to understand its context. I find that refusal under article 9(2)(c) is not justified.
ABP acting in a judicial capacity
In its submissions, ABP said that in the process of determining whether or not a potential planning application is an SID, it is acting in a quasi-judicial capacity. Article 3(2) of the AIE Regulations provides that "notwithstanding anything in sub-article (1), ‘public authority’ does not include any body when acting in a judicial or legislative capacity". Arguably, had ABP considered article 3(2) to apply, it would not have had to consider the section 9(2)(c) or any other exception.
Murdoch’s legal dictionary definition of “Quasi Judicial” is:
“Having a character which is partly judicial e.g. where there is an exercise of discretion following the hearing of evidence, as in the case of proceedings before an arbitrator."
The Aarhus Guide provides the following commentary on the article 3(2) provision:
"Bodies or institutions acting in a legislative or judicial capacity are not included in the definition of public authorities. This is due to the different character of such decision-making from many other kinds of decision-making by public authorities....Regarding decision-making in a judicial capacity, tribunals must apply the law impartially and professionally without regard to public opinion. Many provisions of the Convention are not suitable to be applied directly to bodies acting in a judicial capacity, given the need to guarantee an independent judiciary and to protect the rights of parties to judicial proceedings...."
The Minister's AIE Guidance document adopts a broad view of what bodies may be considered to be acting in a "judicial capacity", suggesting that judicial capacity refers to "processes of determination (normally statutory in nature) which are open to the hearing of submissions from different parties, and where the authority concerned is required to act in a judicial manner."
I acknowledge that certain proceedings before ABP bear some of the hallmarks of judicial proceedings and that independence and impartiality are essential features of the statutory functions it performs. Nevertheless, I am not satisfied that every function engaged in by public authorities who may be regarded as quasi judicial tribunals can be a "judicial function" for the purpose of article 3(2). Accordingly, I am not satisfied on the basis of ABP's submissions in this case that I have sufficient evidence to find the exception under article 3(2) to apply to its involvement in the process that gave rise to this case. I will therefore proceed on the basis that ABP is a public authority for the purposes of the AIE Regulations.
Role of the public in participation in the SID process
ABP argued that it has not yet made any determination on whether the proposed application satisfies the statutory pre-conditions for SID and is not obliged to entertain third party submissions before making its decision on whether the proposed application would satisfy the relevant pre-conditions. It cited Callaghan -v- An Bord Pleanála & ors  IEHC 357 and Callaghan -v- An Bord Pleanála & ors  IECA 398
. Both judgments concluded that the role of the public within sections 37a to 37c of the Planning Act is limited to after an application for strategic infrastructure consent has been made and that public participation after an application for consent has been made is entirely consistent with both European law and the Irish Constitution. If ABP’s argument is that because it is not required to consider third party submissions in pre-application SID consultations, it follows that third parties have no right of access to the environmental information generated in the process, I must disagree. I find that access to environmental information here is broader than the planning process and that while public participation in the pre-planning process is limited by the legislation as correctly put forward by ABP, this does not preclude broader participation in relation to decision making on the environment.
Article 8(a)(iv) - confidentiality protected by law
Article 8 (a)(iv) of the AIE Regulations provides that “a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts).” ABP was aware of a previous decision of mine (CEI/16/0024 on www.ocei.ie) in which a public authority sought to rely on article 8(a)(iv) and a provision of the FOI Act to withhold pre-planning application information. Indeed, it addressed this in its submissions in the context of adverse effects of release and public interest considerations. However, at no time did it claim this exception as a reason for refusal in this case. Nonetheless, I will consider article 8(a)(iv) given the fact that the findings in CEI/16/0024 were commented upon by both parties.
I am satisfied that although the Planning Acts do not expressly provide for the protection of the "confidentiality of proceedings", article 8(a)(iv) effectively imports the exemptions under the FOI Act into the consideration of whether the confidentiality of proceedings of public authorities is otherwise protected by law. The FOI exemption relied upon by the public authority in CEI/16/0024 was section 30(1)(b). I will also consider section 36(1)(b) because EP relied in its submissions on "commercial sensitivity".
Section 30(1)(b) of the FOI Act
Section 30(1)(b) of the FOI Act provides that “a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant adverse effect on the performance by the FOI body of any of its functions relating to management”. I accept that “management” could cover ABP’s statutory functions in regard to SID. Section 30 is a harm-based provision and the onus of proof lies on the public body.
In considering whether 30(1)(b) of the FOI Act applies, I need to consider what effects disclosure would have and what potential harms would arise. It is important to note that my consideration of the harms envisaged in CEI/16/0024 was heavily influenced by the fact that in that case the consultations related to an "ordinary" planning application as opposed to a SID. Thus, the pre-planning consultations were not mandatory in that case but they are in the current one. The issue of future applicants being deterred from engaging in the process and other related harm factors concerning landowners and pre-planning discussions identified by the Council in the earlier case do not arise here. I do not accept that it is reasonable to expect that the possibility of confusion on the part of the public if "premature" information was released would amount to a significant adverse effect in this case. The information is between five and six years old; its context and the fact that it is not a finalised plan or even a planning application is clear from the content of the various records and the statutory basis on which the information was submitted for the Board's consideration. I am not satisfied, having considered the submissions and the content of the information the section 30(1)(b) exemption has been justified. Even if I were to accept that disclosure of the information would adversely affect the confidentiality of ABP's proceedings, I would still have to go on to consider the public interest as required by section 30(2) of the FOI Act and also under article 10(3) of the AIE Regulations. I discuss the public interest arguments later in this decision.
Section 36(1)(b) of the FOI Act
Section 36(1)(b) provides that subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.
As outlined above, ABP did not rely on article 8(a)(iv) or any of the FOI exemptions which are imported into the AIE regulations under that "confidentiality of proceedings" exception. Neither did ABP argue that article 9(1)(c) of the Regulations (commercial or industrial confidentiality) applies. However, my Office took it that EP (the prospective applicant/developer) most probably entered into the process with an expectation of confidentiality until after the submission of an application for planning permission. It therefore invited EP to make a submission on whether release of the information would cause an adverse impact on its business.
EP expressed its concern about the release of information on a project that is still in the pre-application consultation phase with ABP. It acknowledged that the project has not been active recently. It maintained that the information could have an application in the future. Because of this, it stated that the information submitted to ABP as part of the pre-application process is commercially sensitive. According to EP, if the information was released now it would have a material impact on its business as other parties could use the information provided by EP as part of the process to advance similar concepts during the period before that policy is put in place.
EP stated also that the information provided as part of the pre-planning process would be made publicly available if the project were to proceed. EP said that the information is commercially sensitive and its release would have a significant detrimental effect on the company.
My investigator made two attempts to obtain a further, more detailed submission from EP in order to identify what particular information it regarded as commercially sensitive. No such submission was received. Nonetheless, I am prepared to accept that there is at least a possibility that release of some of the company's information could prejudice its competitive position so that the section 36(1)(b) exemption could apply. That is not the end of the matter however as I have to go on to consider the public interest below under both section 36(3) of the FOI Act and article 10(3) of the AIE Regulations.
The Public Interest
Article 10(3) of the Regulations requires the public interest served by disclosure to be weighed against the interest served by refusal. In considering the public interest served by disclosure under AIE, it is important to have regard to the purpose of the AIE regime as reflected in Recital (1) of the Preamble to the Directive: "Increased public access to environmental information and the dissemination of such information contribute to greater public 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." Thus, the AIE regime recognises a very strong public interest in maximising openness in relation to environmental matters so that an informed public can participate more effectively in environmental decision-making. I also consider that there is a strong public interest in openness and accountability in relation to how ABP carries out its functions under the relevant SID legislation.
I am mindful that the public interest balancing tests in sections 30 and 36 of the FOI Act as discussed above are not identical to the requirement of article 10(3). However, for the purposes of this case, the relevant factors to be considered are common to both and I will deal with them together. I have carefully considered all of the submissions although I will not repeat them here.
Although ABP's decision failed to apply the public interest test at all as required by article 10, much of its submissions dealt with the question of public participation. It appears to be arguing that since the process will not be finalised unless and until a planning application has been lodged, there is little, if any, public interest in the release of the information at this time. It also said that the legislative intent apparent from the statutory framework supports the view that the process ought to remain private until concluded. I take this as an argument that there is a public interest in withholding the information if that was the intent of the Oireachtas. The appellant’s position is that public awareness of and understanding of large energy infrastructural plans should not be limited to the formal planning application process. She stated that it is not in the public interest to withhold information "indefinitely" in relation to a process commenced in 2012.
It seems to me that planning legislation as enacted sets out particular requirements for pre-planning SIDs and that, in essence ABP's argument is that there can be no public interest in granting access to such environmental information as a class unless and until the process has concluded. The result of this would be that it would be impossible to apply the provisions of the AIE Regulations and of the FOI Act as imported with the relevant public interest tests where confidentiality is required by law. My view is that this could not have been the intention of the legislature. While the time scales for publication of the file are specified when the process has concluded, the legislation is silent on what is to happen in circumstances such as this where, six years after the process commenced, there is no sign of a conclusion. If there was active engagement in and consideration of the project at this time or if this was forecast to be imminent, my consideration of the public interest might be different. I believe that generally it is in the public interest to allow ABP and EP the freedom and space to carry out their respective roles in the process without unnecessary interference or input while the matter is live. However, I must consider the situation as presented where according to all parties and the file itself, there has been no engagement since 2014. In such circumstances, I do not consider the "legislative intent" public interest argument to have significant weight.
On the other hand, I recognise that the subject matter of the file requested is of significant concern to the public in an environmental context with some elements of the windfarm project being proceeded with separately. I consider that there is a strong and compelling interest in making the planning process as open and transparent as is feasible, insofar as it involves major infrastructural energy or other significant projects.
As regards the public interest in protecting any commercially sensitive information provided by EP, I recognise that there is a public interest in private enterprises being allowed to conduct their businesses without undue interference. However, EP has not pointed me to any specific environmental information which would disclose commercially valuable or confidential information which would not be in the public interest to disclose. Neither, in relation to significant adverse effect on any of its management functions or otherwise has ABP identified information the release of which would weigh against the efficient and effective management of its functions.
The fact that information, of itself, could cause confusion to the public if released is rarely, if ever, a legitimate reason for withholding it under AIE or FOI. I do not consider that release of environmental information from a process that has not been finalised after a number of years is contrary to the public interest.
Finally, I am mindful that section 11(3) of the FOI Act requires public bodies to have regard to the need to achieve greater openness in their activities and inform scrutiny, discussion, comment and review by the public of their activities. I consider this to be relevant to my assessment under section 30(2) and 36(3) as to whether it would be contrary to the public interest to release these records.
To the extent that ABP is concerned that disclosure may result in increased or renewed public scrutiny of the matter, it seems to me that this is what AIE is intended to achieve under the Directive. Therefore, in all the circumstances, I find that the public interest served by disclosure outweighs any identifiable interest served by refusal of the request.
My analysis above relates primarily to those parts of the file which were being considered in the pre-application process. My Office sought clarification from ABP on part of the contents of the file that related to a previous case considered by it and I am satisfied that that information should be treated as part of the environmental information sought in the request. There are also records of what ABP call ‘invalid observations received’ that were not considered by the board. Therefore I see no public interest in their release and I affirm ABP’s refusal of access to them since they contain personal information to which article 8(a)(i) exception would apply. Article 8 (a)(i) provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect 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.
I find that ABP’s refusal was not justified. I vary its decision. Under the power given to me by article 12(5), I now require ABP to make available to the appellant the information requested with the exception of the correspondence relating to invalid observations. ABP should also redact any personal information of staff as it appears on emails including, for example, reference to a staff member taking annual leave.
I should add that, each AIE request should be considered as an individual request and that the refusal of requests for environmental information on pre-planning applications may be justifiable under other circumstances and in other cases. This decision should not be taken to mean that I would consider all pre-application consultation files as a class. ABP may in considering future AIE requests be perfectly justified in refusing access to information in pre-application consultation files. It must, however, do this in accordance with the provisions of the AIE Regulations.
Appeal to the High Court
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