Case number: CEI/19/0004

Whether refusal to provide access to the requested information was justified on the ground of article 8(a)(iv) of the AIE Regulations

 

CEI/19/0004

 

8 July 2019

 

Background

 
This case involved access to information on a possible windfarm development. The project website www.lyrewindfarm.com, when accessed on 10 June 2019, said: 
 
“Innogy Renewables Ireland Limited (Innogy) is the company proposing to develop Lyrencarriga Wind Farm, in the vicinity of Lyrencarriga townland and surrounding areas in Co. Waterford and Co. Cork. It is a joint project with Highfield Energy, with Innogy taking the lead in the development. 
 
Listed amongst the “Project Facts” were details on the physical scale of the project (“approx. 1,900 hectares”), the number of turbines (up to 25), the height of turbines (up to 150 metres), the “expected investment” (€100 - €130 million) and the intention to submit a planning application in 2019.   
 
On 22 October 2018 the appellants submitted an AIE request to the Board in the following terms:
 
“Please let us have a copy of all of the documentation and records (held in any format or medium) on the pre-application consultation file reference PL93.301740, in which the consulting entity is Innogy Renewables Ireland Ltd.”  
 
The Board issued a decision on 12 November 2018.  It refused the request because “the case has not yet been concluded”.   This decision was fundamentally flawed: It did not cite any provision of the AIE Regulations as justifying refusal and it did not say that the Board had considered the public interest in disclosure before making its decision.
 
On 15 November 2018 the appellants sought an internal review, noting that “not yet concluded is not a valid legal basis for refusal” of an AIE request and referring the Board to my decision in case CEI/17/0031 (available on  www.ocei.ie).  
 
On 13 December 2018 the Board issued a review decision.  This affirmed its earlier decision, but this time grounded it in the AIE Regulations by saying:
 
“An Bord Pleanála is not making the requested material available pursuant to article 8(a)(iv) of the [AIE Regulations] which 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 with respect to exempt records within the meaning of those Acts)’.”
 
The Board explained why it considered that the consultation was still “in an active mode” and “not in any prolonged period of abeyance”. 
 
In addition, its decision-maker went on to say:
 
“I had regard to the relevant provisions of the Local Government (Planning and Development) Acts 2000 to 2018 in respect of the pre-application consultation process and its relationship with any subsequent formal planning application process.  I … noted that public participation in respect of such proposed development is statutorily provided for in the application phase”.
 
She added:
 
“I had regard to the decision of the Commissioner for Environmental Information in Case CEI/17/0031.  I weighed the public interest served by disclosure against the interest served by refusal and consider that in this particular case and having regard to the relevant statutory scheme under the aforementioned Planning Acts that refusal of disclosure is justified on the basis of the "confidentiality" exemption as set out at article 8(a)(iv).”
 
The appellants appealed to my Office on 11 January 2019, saying that the Board had, by withholding records on the basis that they are part of an ongoing deliberative process, misinterpreted and misapplied the AIE Regulations.  They referred again to my decision on case CEI/17/0031.  
 
In carrying out my review I had regard to all submissions made by the parties. I also 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); the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’); and the relevant jurisprudence of the courts.
 
The information at issue
 
The Board provided my Office with a copy of what it described as the “singular record” which holds the information captured by the AIE request. The record itself comprises various documents grouped into six folders, numbered 1 to 6.  It makes no difference whether I regard these folders and their contents as constituting multiple records or a single record, because AIE is concerned with access to environmental information rather than with access to “records” per se.  For simplicity, I followed the approach taken by the Board and regarded the withheld information as constituting a single record. 
 
 

Scope of Review

 
My review was concerned with whether the Board should be required to provide the appellants with access to any or all of the information in the withheld record.  
 
The Board’s decision relied on article 8(1)(a)(iv) of the AIE Regulations. Although it appears not to be in dispute in this case, I first considered whether the withheld information is environmental information because my jurisdiction to require release of information applies only to environmental information. 
 
Since the ground given for refusal concerned what the Board saw as the impact that disclosure would have on the confidentiality of its proceedings rather than expressing any concerns about any effects that disclosure would have on the interests of third parties who provided some of the information at issue, I focussed on the Board’s proceedings and did not consult either Innogy or Highfield Energy.  If my review had led me to reject the Board’s arguments, I would have conducted such third-party consultation prior to making my decision.
 
Whether the information in the withheld record is environmental information
 
Article 3 of the AIE Regulations 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).
 
Folders 2, 5 and 6 contain Ordnance Survey maps which have information on the distribution of elements of the environment such as woodlands and watercourses and are therefore environmental information within the meaning of category (a).
 
Folder 3 is a scoping document for an environmental assessment which I am satisfied contains environmental information within category (a). 
 
I formed the view that the formal request to enter into pre-planning discussions with the Board constituted the adoption by Innogy of a measure that, if implemented, would be capable of affecting the environment in line with the findings of the Court of Appeal in Minch -v- Commissioner for Environmental Information & Anor [2017] IECA 223 (available at www.courts.ie) so that the withheld information is environmental  information within category (c ).
 
I concluded that all of the information in the withheld record is environmental information. 
 
Whether refusal of the request was justified on the ground of article 8(a)(iv) 
 
The Board’s position
 
The Board’s position is that it was justified in withholding the record by article 8(a)(iv) of the AIE Regulations, which 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 with respect to exempt records within the meaning of those Acts)”.
 
The Board submitted that:
 
· Pre-application consultation is a process that runs from a formal opening to a formal closing.  This reflects the relevant statutory provisions in section 37A to 37C of the Planning and Development Act 2000.  
· The Board has not yet made any determination on whether the proposed development qualifies as strategic infrastructure development (SID).  
· The making of such a determination would require the Board to exercise quasi-judicial functions and this has been accepted by the courts. 
· The pre-application consultation process has been designed by the Oireachtas to remain private until concluded. 
· The prospective applicant in this case may contact it when it wishes to request a further pre-application consultation meeting. Unlike the situation in case CEI/17/0031, the current case involves a pre-application consultation process which has never been in any prolonged period of inactivity.  The first consultation meeting took place in late August 2018 and, while there has been no request for a second meeting since then, the Board’s most recent contact with the prospective applicant was during 2019.   
· In the Board’s experience, delays of this duration are not uncommon.  The Board does not consider the present position in this case as constituting a period of ‘out of the normal’ inactivity within the context of the pre-application process.   
 
In relation to the public interest in disclosure of the requested information at this point in time, the Board submitted that:
 
· There is no extant planning application and it is not certain that there ever will be one. 
· If there is a planning application, whether the proposed development is deemed to qualify as strategic infrastructure development or not, any planning application would have to go through a formal planning application process in which opportunities for full public participation are legally guaranteed. 
· Releasing material in relation to this as yet unfinished pre-application process is not in the public interest. It could lead to confusion and uncertainty, as applicants would retain the ability to alter details of any proposed development. 
 
The appellants’ position
 
When my Office accepted this appeal the appellants were invited to make a submission.  However, no submission was received.  My investigator issued a reminder and, although receipt of that email was acknowledged by the appellants’ office, no submission was subsequently received by my Office. I therefore took the appellants’ position to be as set out in their internal review request and appeal. 
 
In their internal review request, the appellants stated that “not yet concluded” was not a legal basis for refusal and added that:
 
“the legal position is quite clear: we refer in particular to the decision dated 28 August 2018 in … case number CEI/17/0031”.  
 
In their appeal, the appellants stated that the Board misinterpreted and misunderstood the legal basis for withholding the information on the ground that it is “part of an ongoing deliberative process”.  They referred once again to my previous decision in case CEI/17/0031.  
 
 
Analysis
 
I accept that the Board’s role in relation to its pre-application dealings with the prospective applicant in this case involves the Board proceeding through a set deliberative process and therefore I accept that it involves the Board’s “proceedings”.
 
I accept that those proceedings are normally kept confidential until such time when (if ever) the information must be made public under the planning legislation. That point has not yet been reached in this case.
 
I accept that the confidentiality of the Board’s proceedings in relation to pre-application consultations, until such time as the right to such confidentiality is lost, is implicitly provided for in the Planning and Development Act 2000. I accept that this process was designed by the Oireachtas to be private until concluded. 
 
I considered whether the confidentiality of the Board’s proceedings is protected in Irish law in more express terms by the Freedom of Information (FOI) Act 2014.  Section 29 of that Act provides that:
 
(1) A head may refuse to grant an FOI request—
(a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and
(b) the granting of the request would, in the opinion of the head, be contrary to the public interest,
and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.
(2) Subsection (1) does not apply to a record if and in so far as it contains any or all of the following:
(a) matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations;
(b) factual information;
(c) the reasons for the making of a decision by an FOI body;
(d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body;
(e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme.
 
The Board is an FOI body. I was satisfied that the record concerned in this case contains matter relating to the Board’s deliberative processes (including the results of consultations considered by the Board for the purpose of those processes).  I noted that the Board was of the opinion that granting the request would be contrary to the public interest and I was satisfied that subsection 2 does not apply in the circumstances.
 
I proceeded to consider whether, in my opinion, granting the request would be contrary to the public interest.  The appellants cited my earlier decision in case CEI/17/0031. I therefore took account of the public interest aspects of that decision which might support the appellants’ position.  In that case I noted that the Planning and Development Act is silent as to what should happen in relation to making the details of pre-application consultations public “in circumstances … where, six years after the process commenced, there is no sign of a conclusion”.  I concluded that, in those circumstances, I should not give significant weight to the public interest argument in favour of refusal based on the legislative intent behind the Planning and Development Act (i.e. the intent that information on pre-application consultations should remain private until that process was concluded).  
 
The circumstances of the current case were quite different in that, as the Board has submitted, there has been no inordinate period of inactivity.  Moreover, in case CEI/17/0031 I gave weight to the fact that some elements of the windfarm project at issue had proceeded to being developed.  That consideration does not arise in the current case
 
In CEI/17/0031 I noted that:
 
“There is a strong public interest in openness and accountability in relation to how [the Board] carries out its functions under the relevant SID legislation.”
 
I accept that this statement applies equally to the current case.  However, I am mindful that the issue in the current case is primarily whether the requested information should be made publically available now rather than at some future time, when/if a planning application is made.  It could be argued that any delay in release might work against the public interest in openness and accountability in relation to how the Board carries out its functions under the SID legislation by affecting the ability of the public to participate in the Board’s initial decision as to whether the proposed development should be regarded as SID or not.  However, the Supreme Court in Callaghan v An Bord Pleanála [2018] IESC 39 (which is available at www.courts.ie and which was brought to my attention by the Board in a submission on the current case,) held at para. 9.1 that:
 
“I am satisfied that the Board, when considering whether to grant or refuse permission on foot of an application which has gone down the SID route, remains obliged to consider on the merits any questions concerning the strategic importance of the project for which permission is sought.  The fact that the Board had earlier formed an opinion as to the strategic importance of the project, for the purposes of determining that it should go down the SID route in the first place, cannot, as a matter of constitutional construction, in any way legitimately influence the Board’s final decision”. 
 
I took this to mean that, although there is no provision for public participation in a decision by the Board as to whether a project should “go down the SID route” (with the provision of information to the public that such participation would require), there is provision for the project’s strategic importance to be opened to public scrutiny and participation later in the planning process if/when it is commenced.
 
Since the Oireachtas designed the pre-planning process to remain private until concluded, I took this as showing that the Oireachtas regarded the public interest as being best served by respecting this arrangement.  In view of this, I was satisfied that disclosure now, before the conclusion of the consultative process, would be contrary to the public interest. 
 
 
I was satisfied that disclosure would adversely affect the confidentiality of the Board’s proceedings and that the effects would be substantial, not least because it would be likely to have a chilling effect on future pre-application consultative processes, nationwide.  Accordingly, I was satisfied that section 29 of the FOI Act would apply to the information at issue in the circumstances of this case.  Since this satisfied me that the confidentiality of the Board’s proceedings in this regard is protected by law, I concluded that article 8(a)(iv) of the AIE Regulations could justify the Board’s decision in this case, subject to consideration of article 10 of the AIE Regulations.  
 
Article 10 considered
 
I identified the relevant provisions of article 10 that fell to be considered as subarticles (1), (3), (4) and (5).  I noted that article 10(6) was not relevant, because it concerns material in the course of completion whereas this case concerns an incomplete process
 
Subarticle (1) provides that “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”.  This request did not relate to such information and the withheld information does not contain such information. 
 
Subarticles (3) and (4) are closely related.  Subarticle (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”.  Subarticle (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”.  I considered this case on an individual basis, notwithstanding that I also had regard to the effects of disclosure on future pre-application processes albeit that they might have no connection to the current case.  I took the view that the obligation to consider the request individually did not mean that I could not or ought not also have regard to the broader effects of disclosure. 
 
I endeavoured to identify and weigh the public interest in disclosure of the requested information at this point in time.   I concluded that, at best, there is little public interest in the public being able to scrutinise the pre-planning consultations relating to this project— as a project that might or might not eventually lead to an application for permission to construct a windfarm, in circumstances where, if there is such a planning application, the subsequent planning process would in due course be open to public scrutiny and participation.  
 
On the other hand, I formed the view that the protection of the confidentiality of the Board’s proceedings, at this point in the process, is worthy of a significant weighting.  Such protection serves not just the Board’s interests, but the public interest in the integrity of the planning system operating as it was designed to operate by the legislature. 
 
Weighing one against the other, I concluded that the public interest in disclosure did not outweigh the interest served by refusal in this case.
 
Finally, I considered subarticle (5), which provides that “nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information”.   I saw no meaningful scope for such separation and part release in this case. 
 
 

Decision

 
Having carried out a review under article 12(5) of the AIE Regulations, I find that the Board’s refusal to provide access to the requested information on the ground of article 8(a)(iv) of the AIE Regulations and taking account of article 10 is justified. 
 
As that is my finding, I affirm the Board’s decision and do not require it to take any action.
 
 

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.
 
 
 
 
 
 
 
___________________
Peter Tyndall
Commissioner for Environmental Information