Whether the Department was justified in refusing access to additional unpublished records relating to and/or referring to Foreshore Licence Application FS005751
15 November 2018
In a request dated 25 August 2017, the appellant sought access to all information by any and all means relating to and/or referring to Foreshore Licence Application FS005751 dating from 1 January 2009 to the date of the Department's "final reply". On 22 September 2017, the Department wrote to the appellant in reference to article 7(8) of the AIE Regulations and invited her to make a more specific request. It also noted that over 1000 pages of information relating to the Application FS005751 were published on its website and that further information was available at www.oireachtas.ie
. The applicant did not respond to the Department's invitation and on 19 October 2018 she sought an internal review based on the deemed refusal of her request. In a decision dated 16 November 2017, the Department purported to grant the appellant's request by releasing certain documentation to her.
On 14 December 2017, the appellant appealed to this Office against the Department's decision. While the appellant clarified that she does not seek a copy of any published information, she suggested that not all environmental information relevant to her request had either been published or released to her. She identified certain particular records that appeared to be missing and she also noted that some of the records that had been released to her seemed to have been redacted.
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 Department and the appellant. 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; 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; and also the text of the Aarhus Convention itself. In addition, I have examined the records specified below to which access was in fact refused in full or in part. I note that my Office wrote to the Marine Institute on 10 August 2018 for the purpose of inviting it to make submissions in relation to the information at issue which may affect its interests. To date, however, no response from the Marine Institute has been received.
Scope of the Review
I note that the Department's decision in this case did not adequately answer the appellant's request, because while it purported to grant access to the requested information, it in fact refused the request in part without specifying the reasons for the refusal as required under article 11(4) of the Regulations. This omission was brought to the Department's attention during the course of the review, and in response, the original decision-maker explained that she had been unaware of what had transpired on internal review and she agreed to make a copy of the schedule of records available to the appellant. The schedule in turn outlined the Department's position on the records falling within the scope of the appellant's request. The Department subsequently released additional records to the appellant.
According to the Department, all relevant records have now been either released to the appellant or are available online apart from the following:
records 184, 187-195, 201-204, 214-215, 219-220, 223, 230, 232-234, 238-245, 248, 251 (in part), 252-253, 254 (attached invoice), and 276.
For the sake of clarity, I note that any records that have been published or released to the appellant do not form part of this review. Any records that were created after the date of the original request also do not form part of this review. Accordingly, my review is concerned with the question of whether the Department was justified in refusing access to the records identified above and any additional unpublished records relating to and/or referring to Foreshore Licence Application FS005751 dating from 1 January 2009 to the date of the appellant's request.
Definition of "environmental information"
As noted, the AIE Regulations are based on Directive 2003/4/EC. In line with Article 2(1) of the Directive, article 3(1) of the AIE Regulations defines "environmental information" as
"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 ... conditions of human life, cultural sites and built structures ...affected by the state of the elements of the environment...or through those elements, by any of the matters referred to in paragraphs (b) and (c)".
It is not in dispute for the most part in this case that the records at issue consist of environmental information. For the sake of clarity, however, I note that the records consist of information on a licence application to install a fibre optic cable in the Galway Bay to provide for links to the Galway Bay Renewable Energy Test Site (otherwise referred to as the Smart Bay Test Site). The application was granted in 2015 for a period of 35 years and, according to the Department, its purpose is to support marine research and environmental monitoring. The licence is thus a measure affecting or likely to affect the elements of the environment, including coastal and marine areas, and as the records relating to the licence contain information on the measure, they qualify as environmental information under paragraph (c) of the definition.
Analysis and Findings
The grounds for refusal of a request for environmental information are set out in articles 8 and 9 of the AIE Regulations, but any proposed refusal is subject to the provisions of article 10 of the Regulations. Article 10(1) states: "Notwithstanding articles 8 and 9(1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment". Article 10(3) of the Regulations requires public authorities to consider each request on an individual basis and to weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest. I take article 10(4) to mean, in line with the Minister's Guidance, that there is generally a presumption in favour of the release of environmental information. In addition, I note that article 10(5) clarifies, in effect, that a request should be granted in part where environmental information may be separated from other information to which article 8 or 9 applies.
In this case, the Department has refused access to the relevant records identified in its schedule of records under article 8(a)(iv) of the Regulations. Article 8(a)(iv) 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).
Record 254 (attached invoice)
In its submissions, the Department indicated that access to an invoice attached to record 254 was refused on the basis that it is financial rather than environmental information. However, as financial information is not excluded from the definition of environmental information, the basis for the Department's position is entirely unclear. Like the other records relevant to the appellant's request, the invoice provides information on a measure affecting or likely to affect the environment, namely the foreshore licence for a cable in the Galway Bay. The Department has also suggested that article 8(a)(iv) of the Regulations applies, because the release of the invoice could "make it very difficult . . . to negotiate future rent amounts", but it has not shown that disclosure would adversely affect the confidentiality of any relevant proceedings where such confidentiality is protected by law. Indeed, I note that a proposed amount for the annual fee as stated in record 135 has already been released to the appellant; in the circumstances, I do not see any basis for finding that an adverse effect would arise from the release of the invoice. I therefore find that the Department has failed to justify its refusal to grant access to record 254 in full and I direct the release of the attached invoice.
Legal professional privilege
The Department has refused access to the following records on the basis that they relate to the negotiation of the licence and that legal professional privilege applies: 184, 187-195, 201-204, 214-215, 219-220, 223, 230, 232-234, 238-245, 248, 251 (in part), 252-253, and 276. I note that records 184, 187, 188-190, 194-195, 214-215, 219-220, 223, 230, 232-234, 238-241, 243-245, 248, 251-253 consist of correspondence with the Chief State Solicitor's Office (CSSO). Records 191-192, 201-204, 242 are correspondence with the Marine Institute regarding information required by the CSSO for the purposes of the instructions it had been given by the Department. Record 193 is an internal communication discussing the correspondence with the CSSO and the Marine Institute. Record 276 is legal advice from a private firm of solicitors to the Marine Institute regarding the licence.
Legal professional privilege enables a client to maintain the confidentiality of two types of communication:
(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
(b) confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
As noted in Case CEI/17/0046
(Mr. Y and Kilkenny County Council), available at www.ocei.ie
, I accept that records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for legal professional privilege where they form part of a continuum of correspondence that results from the original request for advice. In adopting this approach, I have had regard to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" (4th Ed.), Butterworths, 1996, at pp. 521-522:
"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India (1988) Ch. 317;  2 All E.R., 246, CA., ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach."
I am satisfied that the records relating to the CSSO contain confidential communications, or form part of a continuum of communications, for the purpose of obtaining and/or giving legal advice and that they would be exempt from production in proceedings in a court on the ground of legal professional privilege. I also accept that the Department and the Marine Institute had a common interest in the matter and that the communications between them as described above are also protected by legal professional privilege. As noted by Finnegan J in Redfern Limited v. O'Mahony  IESC 18, Finnegan J (quoting from Kershaw v. Whelan), "'Waiver is not lightly to be inferred; although privilege is an aspect of the law of evidence and not of constitutional rights it is firmly established in our law for sound reasons of public policy.'" Thus, the Court found that privilege "will not, however, be lost where there is limited disclosure for a particular purpose or to parties with a common interest".
I accept that legal professional privilege is the type of claim for confidentiality that is protected by law as envisaged in article 8(a)(iv). It is a common law rule that has also been incorporated into section 31(1)(a) of the Freedom of Information (FOI) Act 2014. In weighing the public interest served by disclosure against the interest served by refusal, I note 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. On the other hand, I recognise that legal professional privilege is regarded as a cornerstone of the administration of justice. In Martin & Doorley v. Legal Aid Board  2 IEHC 76
, for example, the High Court held that “legal professional privilege exists and has been elevated beyond a mere rule of evidence to ‘a fundamental condition on which the administration of justice as a whole rests’”. Accordingly, I consider that there would have to be exceptional public interest factors at play, in favour of disclosure, before legal professional privilege could be set aside. In this case, an extensive amount of information about the Galway Bay licence application concerned has already been disclosed through publication and on foot of the appellant's request. I therefore consider that the public interest in openness and transparency has been served to a large extent. In the circumstances, I am satisfied that the public interest served by disclosure of the information protected by legal professional privilege does not outweigh the interest served by refusal and that article 8(a)(iv) applies in full to the records concerned.
The appellant has also indicated that she is not satisfied that all relevant records regarding the pre-application process have been published or released to her. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested information is held by or for the public authority concerned. This Office's approach to dealing with cases where a public authority has effectively refused a request under article 7(5) is set out in previous decisions published on our website at www.ocei.ie
, such as CEI/13/0015
(Mr. Lar McKenna and EirGrid plc) and Case CEI/11/0009
(Ms. Rita Canney and Waterford City Council). As these decisions explain, I must be satisfied that adequate steps have been taken to identify and locate relevant records, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, I consider that a standard of reasonableness must necessarily apply. It is not normally my function to search for information.
In this case, the Department initially explained that the pre-application process is an informal process which may or may not take place, that no written record of the conversations is kept, and that a file is only opened at application stage. However, the appellant suggested that the pre-application process, whether formal or information, is a mandatory process. In support of her position, she referred to the application process as outlined on the Department's website: https://www.housing.gov.ie/planning/foreshore/applying-consent/consent-process-explained
. She stated: "Currently a 'Pre-Application Consultation Request Form for Consent under the Foreshore Act 1933 (as amended)' is published on line for applicants to complete before applying for a foreshore licence. I believe the process was the same at the time of application for the foreshore licence in question. However, I do not have a copy of the ‘pre-consultation form’ for the time in question." This Office therefore asked the Department to explain the apparent discrepancy between its initial position regarding the pre-application and its website indicating that a pre-application form and other records relevant to the pre-application meeting should exist.
In response, the Department carried out a further search and located additional records that it released to the appellant, including a Feasibility Study that reportedly had previously been published. In relation to the description of the process on its website, the Department has clarified that the pre-application process is not a statutory requirement, though it is the Department's preferred level of engagement. According to the Department, the language on its website is used to encourage applicants to engage with it at the earliest opportunity, but no legal authority exists to compel such early engagement. In the case of the Marine Institute's application, a meeting was deemed unnecessary, and while the Department accepts that a call likely did take place, it states that no record of the content of the call can be found. The Department adds: "It should be noted that final applications can differ significantly from that proposed at pre-application stage and these changes can be confusing to the public." Given the passage of time and the extensive amount of information that the Department has made available through publication or otherwise, I am satisfied that the Department has taken adequate steps to identify and locate the existing information relevant to appellant's request in this case.
Having carried out a review under article 12(5) of the AIE Regulations, I vary the Department's decision in this case as follows:
I find that the Department was not justified in refusing access to the invoice attached to record 254 and direct the release of this record in full;
I find that the Department was justified in refusing access to the other identified records at issue under article 8(a)(iv) of the Regulations and find that article 7(5) applies to any additional records relevant to appellant's request.
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
15 November 2018