Case number: OCE-97782-D6J1J0

Whether DECC was justified in refusing access to draft Ministerial Guidelines on the basis of article 9(2)(c) and/or article 9(2)(d) of the AIE Regulations.

 

OCE-97782-D6J1J0

 

12 August 2021

 

 

Background

1. By way of context, the request at issue here refers to guidelines in relation to the implementation of the AIE Regulations by public authorities, which may be published by the Minister for Environment, Climate and Communications, in accordance with article 14(1) of the AIE Regulations (the Minister’s Guidelines). Once those guidelines are published, article 14(2) requires public authorities to have regard to them when carrying out functions under the Regulations. The current version of the Minister’s Guidelines was published in May 2013. In June 2017, DECC issued a request for tender for a service provider to review the Minister’s Guidelines, presumably with a view to updating the May 2013 version.

2. On 9 April 2020, the appellant requested a soft copy of the “most recent draft of the proposed new guidelines on the application of the AIE Regulations” from the Department of the Environment, Climate and Communications (DECC). DECC refused the appellant’s request on 24 April 2020 and relied on article 9(2)(c) of the AIE Regulations in support of its decision, on the basis that the request concerned material in the course of completion, or unfinished documents or data. In accordance with article 10(6) of the Regulations, DECC advised the appellant that it anticipated that, subject to Ministerial approval, the revised AIE Ministerial Guidelines would be published in the coming months.

3. On 28 April 2020, the appellant sought an internal review of the decision to refuse access to the information requested. The internal review outcome was issued on 29 May 2020 and upheld the original decision to refuse on the basis of article 9(2)(c) of the Regulations.

4. On 25 July 2020, the appellant made a further request to DECC for a soft copy of “the most recent draft of the proposed new guidelines on the application of the AIE Regulations” (the draft Guidelines). DECC issued a decision on this request on 25 August 2020 which again refused disclosure on the basis of article 9(2)(c). It did not provide the information required in accordance with article 10(6) of the Regulations.

5. The appellant sought an internal review of this decision on 25 August 2020. It drew attention to DECC’s non-compliance with article 10(6) in that request. It also noted DECC’s earlier statement of 24 April 2020 to the effect that the guidelines would be published “in the coming months” and argued that, in the absence of publication to date and the existence of a date for such publication, the current draft Guidelines should be released.

6. On 23 September 2020, DECC provided the appellant with the outcome of its internal review. The review affirmed the decision to refuse access to the draft Guidelines on the basis of article 9(2)(c) of the Regulations. The internal review outcome also noted that information on the estimated time needed for completion was not included in the original decision due to an administrative oversight. In accordance with the requirements of article 10(6) of the Regulations, the internal review outcome advised the appellant that it was estimated that the draft Guidelines would be completed within 2 months.

7. The appellant brought an appeal against DECC’s decision to my Office on 3 October 2020.

 

Scope of Review

8. DECC has refused access to the draft Guidelines requested by the appellant on the basis that such refusal is justified on the grounds provided for in article 9(2)(c) of the AIE Regulations. As outlined below, DECC has also argued, in subsequent submissions, that refusal is also justified on the basis of article 9(2)(d) of the Regulations.

9. As such, my review in this case is confined to whether DECC was justified in refusing access to the draft Guidelines under articles 9(2)(c) and 9(2)(d) of the AIE Regulations.

Submissions of the parties

10. DECC noted in its original response to the appellant in April 2020 that the guidelines were “actively being worked on”. DECC also outlined that it did not believe “that it would be in the public’s best interest to release the document ahead of publication, as this may prove counter-productive going forward e.g. if the draft document was cited prior to Ministerial approval”. It also noted that “the document itself is not a legal document but it will be used as a reference guide by the OCEI and the Courts” such that in its view “giving a draft copy prior to publication is not in the interest of the public”. In its refusal of the appellant’s subsequent request, in August 2020, DECC noted that “releasing the document prior to Ministerial approval being received has the potential to result in a number of versions of the document being in circulation. The potential confusion which could result overrides the public interest in this document being released prior to the launch of the final document”.

11. The appellant set out its view on this case to DECC and provided submissions to this Office in connection with its appeal in which it made the following arguments in support of its contention that the draft Guidelines should be released:

(i) The appellant noted that the request for tender issued by DECC in June 2017, about the review of the existing Minister’s Guidelines, sets out that the successful tenderer was to provide two drafts to DECC for comment and was then to prepare a “final draft”. It also noted that the work specified in the tender was to be completed within a term of three months under the proposed contract. The appellant therefore argued that, at the very least, there was a final draft of the guidelines completed in or around the end of 2017 but that as of yet the Guidelines have not been published in final form.

(ii) The appellant noted that its request was for the “latest draft” of the Guidelines and that since the tender required the preparation of a “final draft”, there must be a draft document that is not being actively worked on that may be released and which constitutes the most recent draft as requested. It argued, on that basis, that DECC’s reliance on article 9(2)(c) of the Regulations was incorrect and that DECC had confused the concept of material in the course of completion with a draft document. The appellant also referred to the Aarhus Guide which notes that that the mere status of a document as draft does not in and of itself bring it under the exception and that the term “in the course of completion” refers to individual documents that are being actively worked on.

(iii) The appellant took issue with DECC’s contention in the internal review outcome that release of the draft Guidelines would not be in the public interest because it would have “the potential to result in a number of versions of the document being in circulation which at this time overrides the public interest in this document being released”. The appellant firstly noted that there are no versions of the document currently in circulation. It also argued that DECC had failed to sufficiently explain the particular circumstances that weighed against the release of the information requested.

(iv) The appellant argued that the public is well used to seeing and commenting on draft documents and that it is open to DECC to mark the document as draft and to date it or give it a version number (as contemplated by the tender) thereby avoiding any issue with interpretation of a draft document or with having different versions in circulation.

(v) The appellant submitted that the public disclosure of draft documents is an important part of public participation and is expressly contemplated by the Aarhus Convention.

(vi) The appellant argued that DECC’s decision ignored the public interest factors in favour of release which were specifically identified by the appellant in its communications with DECC, on the basis that there has been no public consultation on the Guidelines to date, that their publication has been awaited for a number of years. The appellant expressed the view that publication of a draft may in fact accelerate completion of the Guidelines as it would allow the public to provide feedback while the Guidelines are still in draft form and avoid the adoption of flawed or incorrect guidelines.

12. My Investigator wrote to DECC on 30 April 2021 inviting it to make submissions and seeking further information on the basis of the issues raised by the appellant in its submissions.

13. DECC provided submissions to my Office on 13 May 2021 in which it raised the following points:

(i) DECC noted that the delay in the publication of finalised Guidelines occurred in circumstances where those Guidelines required Ministerial sign-off in order to comply with the requirements of article 14(1) of the Regulations. DECC submitted that delays in obtaining such sign off occurred due to the change in Government which took place in July 2020 such that the draft Guidelines were still in draft form when the appellant’s request was reviewed and decided on. It also outlined that subsequent amendments were made to the draft Guidelines following the date of the appellant’s request.

(ii) DECC noted that although Ministerial sign-off was anticipated to occur in September 2020 it did not in fact occur. It also explained that since Ministerial approval was obtained in February 2021 to review and update the AIE Regulations, DECC decided not to publish the draft Guidelines dated July 2020 as further updates will be required following the enactment of new Regulations.

(iii) In support of its contention that the draft Guidelines constituted information to which the exception in article 9(2)(c) could be applied, DECC relied on paragraphs 33 and 34 of my decision in Case OCE-93474-R9M5N9 Mr X and daa. In that decision, I noted that “even if the draft EIS could not be said to be in the course of completion on the basis that daa were not

actively working on it, I am satisfied that it is an unfinished document as daa intended to re-commence work on the document with a view to its completion once the legislation implementing Regulation 598/2014 was enacted”. DECC submitted that similar logic should apply in this case given its intention to review the AIE Regulations and the fact that DECC did not intend to publish the draft Guidelines until such time as they are amended to reflect any changes made to the AIE Regulations following that review.

(iv) DECC argued that the interest in refusal on the basis of article 9(2)(c) outweighed the public interest in disclosure of the draft Guidelines in light of the following:

a. The preparation of the Guidelines is a statutory function of the Minister for Environment, Climate and Communications in accordance with article 14 of the Regulations. Article 14 also requires public authorities to have regard to any guidelines published by the Minister.

b. Following the publication of the revised AIE Regulations, the draft Guidelines will be updated so that they are in accordance with the legislation which is law at that point in time. Releasing interim draft Guidelines has the potential to lead to confusion as to which Guidelines are to be considered by a public authority in carrying out its functions under the AIE Regulations.

c. The fact that a document has been awaited for a number of years is an irrelevant consideration in the public interest; the public interest is not served by having a number of draft documents available. The public interest is served by ensuring that public officials carry out their functions in accordance with the law that is in place on the date that they are carrying out those functions. Making available draft versions of statutory guidance has the potential to cause confusion in the carrying out of AIE decision making by public authorities.

d. Making the Guidelines available through an AIE request such as that made by the appellant does not equate to a public consultation. Therefore points raised in the public interest regarding a public consultation on the draft Guidelines are not relevant to this appeal.

(v) DECC considered that the above factors meant that the interest in refusal on the basis of article 9(2)(c) outweighed the public interest in disclosure with respect to the entirety of the draft Guidelines, with the exception of the unofficial consolidation of the AIE Regulations 2007 – 2018, a copy of which was included in an annex to the draft. However, it noted that such a consolidation was already publicly available at https://www.gov.ie/pdf/?file=https://assets.gov.ie/76993/e9998c0e-13c6-495e-a9c1-0e072a6a5879.pdf#page=null

(vi) DECC argued that the draft Guidelines also constituted internal communications of DECC such that access to those draft Guidelines could also be refused under article 9(2)(d) of the Regulations. It submitted that until such time as the Guidelines are approved for publication by the Minister, they are internal documents and subject to change. It relied on the decision of the Court of Justice of the European Union in C-619/19 Land Baden-Württemberg v DR. DECC noted in particular the comments of the Court at paragraph 53 “that the term ‘internal communications’ covers all information which circulates within a public authority and which, on the date of the request for access, has not left that authority’s internal sphere – as the case may be, after being received by that authority, provided that it was not or should not have been made available to the public before it was so received.” It also relied on the Court’s remarks at paragraph 44 where it noted that “the exception permitting access to internal documents to be refused is intended to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions.”

(vii) DECC argued that the public interest considerations applying to the application of the exception in article 9(2)(d) mirrored those set out above with regard to article 9(2)(c).

14. My Investigator wrote to the appellant on 17 May 2021 setting out DECC’s updated position and providing the appellant with an opportunity to make further submissions in response.

15. The appellant provided further submissions on 7 June 2021 in which it made the following points:

(i) The appellant argued that in circumstances where DECC’s position was that it no longer intended to publish the draft Guidelines, it could no longer argue that the draft Guidelines were being actively worked on or unfinished such that article 9(2)(c) should apply. (ii) The appellant submitted that DECC’s reliance on my decision in Case OCE-93474-R9M5N9 Mr X and daa was misconceived. It submitted that in that case, it was apparent that daa was in fact actively working on the EIAR as evidenced by the fact that it was actually completed during the course of the appeal to my Office.

(iii) With regard to article 9(2)(c), the appellant argued that the grounds for refusal provided for in that article could only be engaged if the interest protected by the exception would be harmed in a foreseeable rather than a hypothetical way.

(iv) The appellant also argued that it was difficult to see how the draft Guidelines could be described as “unfinished” in circumstances where they had been prepared towards the end of 2017 (following which a further amendment of the Regulations took place in 2018) and where a decision had now been taken to review the AIE Regulations. It submitted that where there is doubt as to whether the draft Guidelines should be considered “unfinished”, then the appellant should be afforded the benefit of that doubt. It submitted that a mere statement of intent to revise the draft Guidelines on the part of DECC is not sufficient to invoke article 9(2)(c) and that while it might be the case that drafting on the draft Guidelines would resume in the future, any assertion to this effect by DECC was speculation as it was equally likely that completely new guidelines would need to be drafted in light of any amendment to the AIE Regulations. It noted that DECC had not provided a timeline for the proposed review or any information on the extent of the review envisaged. It submitted that it seemed clear however, that there would be extensive legislative reform and that a completely new set of guidelines would be needed.

(v) The appellant also submitted that article 10(6) required DECC to say when the draft Guidelines would be finished. It noted that so far DECC had provided three different answers as to when this would occur, indicating (a) on 24 April 2020 that publication was anticipated “in the coming months”; (b) on 23 September 2020 that it was estimated that the draft Guidelines would be “completed within 2 months”; and (c) in its submissions of 12 May 2021 that guidelines would be published following enactment of new AIE Regulations (with no date specified). It submitted that it seemed clear that the drafting of the draft Guidelines had been abandoned and that DECC could not outline when work would recommence on new guidelines. It submitted on that basis that the draft Guidelines could not be considered an “unfinished document” as a document being in an unfinished state implies that it is being actively worked on and that the authority working on it can say with a degree of certainty that it will be finished by a particular date. As such, the appellant submitted that if DECC could not say when the draft Guidelines would be finished, then they should be considered finished.

(vi) In relation to DECC’s reliance on article 9(2)(d), the appellant submitted that DECC had not pointed to any adverse effect on its internal deliberations. It also submitted that there could be no such adverse effect if a decision had now been taken by DECC not to publish updated guidelines on the AIE Regulations pending the review of those Regulations in their entirety.

(vii) The appellant also submitted that the invocation of article 9(2)(d) based on the decision of the CJEU in Land Baden-Württemberg v DR was both incorrect and inconsistent. It argued that the draft Guidelines could not constitute both an unfinished document such that article 9(2)(c) applied and internal communications for the purposes of article 9(2)(d). The appellant pointed to paragraphs 39 and 40 of the CJEU’s decision in which the Court remarked as follows:

“Article 4(3)(c) of the Aarhus Convention indeed provides for an exception to the right of access to environmental information where a request concerns material in the course of completion or concerns internal communications of public authorities. That provision thus distinguishes the term ‘material’ from the term ‘communication’.

As the Advocate General has observed in points 23 and 24 of his Opinion, the same distinction was adopted by the EU legislature, which transposed Article 4(3)(c) of the Aarhus Convention by two separate provisions. On the one hand, Article 4(1)(d) of Directive 2003/4 contains an exception concerning material in the course of completion or unfinished documents or data and, on the other, Article 4(1)(e) provides for the exception relating to internal communications. It follows that the term ‘communication’ and the terms ‘material’ or ‘document’ should be given separate meanings. In particular, unlike the former term, the latter do not necessarily concern information that is addressed to someone.”

(viii) The appellant also argued that the CJEU had set out in Land Baden-Württemberg v DR that a public authority refusing access to environmental information must set out why disclosure would specifically and actually undermine the interest protected by the exceptions upon which it relies. It submitted that the only relevant factors to be considered are the severity

and likelihood of the harm the exception aims to protect which must in turn be weighed against the benefit to the public interest in granting the request.

(ix) The appellant submitted, as noted in Land Baden-Württemberg v DR that the aim of articles 9(2)(c) and 9(2)(d) was to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions. It submitted that DECC had not pointed to any adverse effect on its internal reflections and discussions relating to the draft Guidelines the drafting of which, it submitted, should now be considered abandoned.

(x) It submitted that the statutory function of the Minister for the Environment, Climate and Communications as set out in article 14 of the AIE Regulations was not a relevant factor and neither was any risk of “confusion” on the part of the public. It submitted that articles 9(2)(c) and 9(2)(d) were not intended to protect members of the public from being “confused” by draft documents. It also submitted that no such confusion should occur in public authorities as staff members dealing with AIE requests in those authorities should be sufficiently trained and since the Regulations require those staff members to provide appropriate assistance to members of the public, no confusion should occur among the public either.

(xi) It submitted that DECC had not identified any relevant harm to be protected by either of the exceptions, had not considered the likelihood or severity of such harm and had not weighed it against the benefit to the public in releasing the draft Guidelines.

(xii) With regard to the public benefit, the appellant submitted that while releasing the draft Guidelines would not equate to public consultation in the strict sense, it would allow for greater public participation in relation to the application of the current AIE Regulations as well as the ongoing review process. The appellant argued that it would allow the public to point out any mistakes or omissions in the draft Guidelines or identify areas in respect of which further clarity is required. With regard to the review process, the appellant argued that it would strengthen the review of the AIE Regulations by allowing members of the public to point out areas where there might be opportunities for improved legislative clarity.

Analysis and Findings

16. 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 appellant and DECC. I have also examined the contents of the records at issue. 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).
  • * The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the Aarhus Guide).
  • * The European Commission’s Explanatory Memorandum on the AIE Directive (the Commission’s Explanatory Memorandum).
  • * The case law referred to in this decision, in particular, the decision of the Court of Justice of the European Union in C-619/19 Land Baden-Württemberg v DR.

17. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.

18. Article 9(2)(c) of the AIE Regulations provides as follows:

“A public authority may refuse to make environmental information available where the request … concerns material in the course of completion or unfinished documents or data”.

19. Article 9(2)(d) provides:

“A public authority may refuse to make environmental information available where the request … concerns internal communications of public authorities, taking into account the public interest served by the disclosure”.

20. Article 10 provides for certain limitations on the ability of a public authority to refuse to make environmental information available as follows:

“(3) The public authority shall consider each request on an individual basis and weigh the public interest served by the disclosure against the interest served by the refusal.

(4) 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 the disclosure.

(5) Nothing in article … 9 shall authorise a public authority not to make available environmental information which, although held with information to which article … 9 relates, may be separated from such information”.

21. As such, there are three principal issues I must address in my decision:

(i) Can the exceptions contained in article 9(2)(c) and/or article 9(2)(d) be said to apply to the draft Guidelines in the first instance, having regard to the restrictive test mandated by article 10(4) of the Regulations?

(ii) If either or both of those exceptions can be said to apply, does the interest served by the refusal of the draft Guidelines outweigh the public interest in their disclosure?

(iii) If so, is there any material contained in the draft Guidelines which can be separated from the information subject to the relevant exception, in respect of which partial disclosure could be made?

Does article 9(2)(c) apply to the draft Guidelines?

22. The appellant has argued that DECC has confused the concept of material in the course of completion with a draft document and that article 9(2)(c) does not apply in the circumstances of this case. The appellant relies on article 10(6) of the Regulations to argue that it is for DECC to explain precisely and specifically why the draft Guidelines remain unfinished and to say when they will be finished. It argues that since DECC has given numerous timelines for completion of the draft Guidelines and has indicated that the completion of the draft Guidelines will now await the enactment of new AIE Regulations, it cannot be said that the draft is unfinished “since a document

being in an unfinished state implies that (a) it is being actively worked on; and (b) the authority working on it can say with a degree of certainty that it will be finished by a particular date”.

23. I consider that the appellant’s argument in this regard has conflated the concept of “material in the course of completion” with that of an “unfinished document”. Article 9(2)(c) of the Regulations applies to “material in the course of completion” or to “unfinished documents or data” as does its equivalent, article 4(1)(d) of the AIE Directive. The Aarhus Guide provides that “… the mere status of something as a draft alone does not automatically bring it under the exception [contained in the Aarhus Convention]. 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 document will have more work done on it within some reasonable timeframe”.

24. However, the exceptions provided for in article 4(1)(d) of the AIE Directive and article 9(2)(c) of the Regulations are wider than that contained in the Aarhus Convention. Both the Directive and the Regulations refer to “material in the course of completion or unfinished documents or data” whereas Article 4(3)(c) of the Convention refers only to “material in the course of completion”. As such, while the Aarhus Guide provides a useful starting point for my analysis, I must be mindful of the distinction between the Convention, the Directive and the Regulations. I am also conscious of the decisions of the Court of Justice of the European Union to the effect that while the Guide can be used to aid interpretation, it is not binding (Case C-182/10 Solvay and Others v Région Wallonne, paragraph 27).

25. As noted by Egan J in Cork County Council v Whillock [1993] 1 IR 231, the presumption that “words are not used in a statute without a meaning and are not tautologous or superfluous” has long been a maxim of statutory interpretation “and so effect must be given, if possible, to all the words used, for the legislature must be deemed not to waste its words or say anything in vain”. This is clear in the case of the EU legislature, who included wording which specifically provides that the exception should also apply to “unfinished documents or data”, rather than simply adopting the language of the Aarhus Convention, which provides only for an exception in the case of “materials in the course of completion”.

26. The draft Guidelines are, as the name suggests, a draft version of guidelines which, if published by the Minister, will become guidelines in relation to the implementation of the AIE Regulations by public authorities, in accordance with article 14 of the AIE Regulations. Once those guidelines are published, article 14(2) of the AIE Regulations obliges public authorities to have regard to them when carrying out their functions under the Regulations. As such, the draft Guidelines remain “unfinished” until they receive Ministerial approval and are published. In my view, until Ministerial approval is received, the draft Guidelines remain unfinished such that article 9(2)(c), prima facie, applies to that information.

27. With regard to the appellant’s reliance on article 10(6) of the Regulations, I note that article 10(6) is only expressed to apply to “material in the course of completion” and not to “unfinished documents or data”. In any event, article 10(6) merely requires a public authority to provide an

“estimated time needed for completion”. In my view, DECC has complied with that requirement by setting out that the completion of the draft Guidelines will await the publication of new Regulations. I acknowledge that the moving timelines for completion provided by DECC were unfortunate but there is no evidence before me to suggest that those timelines were not provided in good faith.

28. I accept, as the appellant has noted, that the Court of Justice in Land Baden-Württemberg v DR has made it clear that before an exception can be invoked to justify the refusal of information, the risk of the interest protected by the exception being undermined must be reasonably foreseeable and not purely hypothetical. However, I consider this factor to be more appropriately analysed when considering whether the interest in refusal outweighs the public interest in disclosure as examined in further detail below. I have reached this conclusion on the basis of the plain wording of both the AIE Regulations and the Directive. While articles 8 and 9(1) of the Regulations, and article 4(2) of the Directive, specifically set out that the exceptions contained in those articles can only be invoked where the interest protected by the exception would be adversely affected, a similar threshold is not set out in article 9(2) of the Regulations or article 4(1) of the Directive, both of which provide that the exception at issue in this case can be invoked where the information requested “concerns materials in the course of completion or unfinished documents or data” (emphasis added). This is to be contrasted with, for example, article 9(1)(a) of the Regulations and its equivalent in the Directive, article 4(2)(b), both of which provide that the grounds for refusal contained therein can only be invoked where disclosure of the information would “adversely affect … international relations, public security or national defence”.

Does article 9(2)(d) apply to the draft Guidelines?

29. The appellant has argued that the effect of the decision of the Court of Justice in Land Baden-Württemberg v DR is that the terms “material in the course of completion” and “internal communication” are mutually exclusive such that information cannot constitute both material in the course of completion and an internal communication. This is not my reading of the Court’s remarks in that case. The Court held, at paragraph 40 of its decision that article 4(1)(d) of the AIE Directive “contains an exception concerning material in the course of completion or unfinished documents or data” while article 4(1)(e) provides for an exception “relating to internal communications”. It noted that “it follows that the term ‘communication’ and the terms ‘material’ or ‘document’ should be given separate meanings” and that “in particular, unlike the former term, the latter do not necessarily contain information that is addressed to someone”. I accept that the exception contained in article 4(1)(d) is separate and distinct from that provided for in article 4(1)(e) and that both capture different forms of information, one being materials, documents or data and the other being communications which must be addressed to an individual or an abstract entity. It does not follow from that, however, in my view, that no information would be capable of satisfying the separate meanings to be given to each of those terms. There may be cases, for example, where materials in the course of completion are addressed to individuals or abstract entities within the internal sphere of a public authority. That issue did not arise in the circumstances of the case before the Court of Justice, nor in my view, does it arise in this case. However, it does not follow from the decision of the CJEU that information could never be susceptible to both the exception in article 4(1)(d) and article 4(1)(e) of the Directive (transposed by article 9(2)(c) and article 9(2)(d) of the AIE Regulations).

30. For the purposes of this case, I note that the Court held that “internal communications” must be understood as “concerning information that circulates within a public authority and which, on the date of the request for access, has not left the public authority’s internal sphere – as the case may be, after being received by that authority – inter alia as a result of being disclosed to a third party or being made available to the public” and that environmental information received from an external source could only be considered an “internal communication” for the purposes of the AIE Directive “if it does not leave that authority’s internal sphere after it received it” (see paragraphs 43 and 47). I am satisfied therefore that the concept of “internal communication” as applied by the CJEU in Land Baden-Württemberg v DR does not include draft Guidelines which, in this case, circulated between DECC and its external advisors on more than one occasion. In my view, the circumstances of this particular case are intended, by the AIE Regime, to be covered by article 9(2)(c) and not article 9(2)(d) of the AIE Regulations. As the CJEU points out at paragraph 57, the object of the exception in article 4(1)(e) of the Directive / article 9(2)(d) of the Regulations is to create “a protected space in order to engage in reflection and to pursue internal discussions”. A purely internal discussion was not at issue in this case. Here, the Department was seeking a review of the existing AIE Ministerial Guidelines from suitably qualified consultants, appointed on foot of an open tendering process. As the request for tender notes, the intention was that the successful tenderer would issue at least two drafts to DECC for its review and comment before the final draft was submitted to DECC. As such, I do not consider article 9(2)(d) to apply in the circumstances. In my view, this conclusion is consistent with the restrictive approach I am required to take in accordance with article 10(4) of the Regulations.

Does the interest in refusal of the draft Guidelines outweigh the public interest in their disclosure?

31. In circumstances where I am of the view that the draft Guidelines are unfinished, such that article 9(2)(c) applies, I must now consider whether the interests served by refusal of the draft Guidelines, outweighs the public interest in their disclosure.

32. In my view, the following factors weigh in favour of release of the draft Guidelines:

(i) The purpose of the AIE regime, as reflected in Recital 1 of the Preamble to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment”.

(ii) The strong public interest in ensuring that functions of public authorities which are capable of impacting the environment are carried out in a transparent manner.

(iii) The appellant’s argument that there is a strong public interest in providing access to the draft Guidelines in circumstances where the guidelines had been in preparation for several years (i.e. since 2017) and have yet to be published.

(iv) The appellant’s argument that public disclosure of draft documents is an important part of public participation in environmental matters. I agree, and have noted in many previous decisions, that there is a strong public interest in the publication of draft documents which provide insight into a public authority’s position as it was at the time the draft was prepared.

The disclosure of draft documents in those circumstances contributes to the public’s understanding of the public body’s environmental decision-making processes and functions.

(v) The appellant’s argument that publication of the draft Guidelines in their existing form would enhance their adoption since feedback from the public could be given to the Minister while the guidelines were in draft form and avoid the possible adoption of flawed or incorrect guidelines.

(vi) The appellant’s argument, in response to DECC’s position that the release of the draft Guidelines might lead to confusion, that the potential for confusion is low (inter alia because the public was used to seeing and commenting on draft documents) and could be avoided if the draft Guidelines were clearly marked as “draft” and/or provided with version numbers.

33. On the other hand, the following factors must also be considered:

(i) The acknowledgment, as set out in Recital 16 of the AIE Directive, that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases” which include where the information requested concerns “unfinished documents”.

(ii) The general public interest in providing public authorities with “the necessary space to think in private”, which is the interest to be protected by the exception in article 9(2)(c), as acknowledged both by the European Commission in its Explanatory Memorandum on the AIE Directive and by the Advocate General and the European Court of Justice in Land Baden-Württenberg v DR.

(iii) DECC’s argument that release of draft Guidelines “has the potential to result in a number of versions of the document being in circulation” and “may prove counter-productive going forward e.g. if the draft document was cited prior to Ministerial approval”.

(iv) DECC’s argument that the preparation of guidelines on the implementation of the AIE Regulations is a statutory function of the Minister and that release of the draft Guidelines would not equate to public consultation in respect of those Guidelines. I note that the appellant has argued in response that while releasing the draft Guidelines would not equate to public consultation in the strict sense, it would allow for greater public participation in relation to the application of the current AIE Regulations as well as the ongoing review process.

(v) DECC’s submission that amended AIE Regulations are currently being considered such that a decision has been taken not to publish a final version of the draft Guidelines at present but to await the enactment of the new AIE Regulations following which further updates to the draft Guidelines will be required.

Protection of private thinking space

34. As noted above, I accept the appellant’s point that it is for DECC to demonstrate that the interest protected by article 9(2)(c) would be undermined in a manner which is reasonably foreseeable and not purely hypothetical. As the CJEU noted at paragraph 69 of its decision in Land Baden-Württemberg v DR: “a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical”.

35. The interest protected by article 9(2)(c) is to provide public authorities “with the necessary space to think in private”. Although DECC has set out some factors it considers to operate in favour of refusal of the draft Guidelines, I do not consider that DECC, in its original decision, its internal review, or its submissions to my Office, has set out clearly how its “private thinking space” would be undermined by release of the draft Guidelines. Nor do I consider DECC to have fully complied with the requirements of article 10 of the Regulations, which require it to weigh the public interest served by the disclosure against the interest served by the refusal, having regard to the individual circumstances of the request. As the appellant has also noted, no factors in favour of release are referred to in DECC’s communications with the appellant or in its submissions to my Office.

36. In addition, when considering the need to protect DECC’s “private thinking space”, it is important to bear in mind that what is at issue here is the preparation of guidance as to the implementation of the AIE Regulations. As such, the need for a thinking space is minimised as any such thinking is circumscribed by the need for the Guidelines to accord with the existing Regulations. That being said, it would still be likely that DECC would engage in some level of debate with the external consultant, including debate as to the meaning of certain provisions of the Regulations, the level of detailed guidance which should be provided as to their practical implementation and whether commentary on best practice should be included, as I note it has been in some cases. However, I note that the Request for Tender envisaged the circulation of a number of drafts between DECC and its external consultant. As DECC has noted in its submissions, the current draft was at the stage where it was ready for Ministerial sign off but it was decided that rather than obtaining such sign off, the publication of the draft Guidelines would be paused to await the enactment of revised Regulations. I also note that the draft Guidelines provided to my Office by DECC appear to be very close to a final form document and do not contain any gaps or unfinished sections nor do they contain comments, queries or observations either from DECC staff or from the consultants engaged to prepare the Guidelines. I infer from this that much of the private thinking which was to be carried out with respect to the draft Guidelines had already taken place. Indeed, I note in this regard that much of DECC’s argument in favour of refusal was based on the potential for confusion were the draft Guidelines to be released.

Potential for confusion

37. DECC has argued that release of the draft Guidelines “has the potential to result in a number of versions of the document being in circulation” and “may prove counter-productive going forward e.g. if the draft document was cited prior to Ministerial approval”. My understanding of this argument is that DECC feel that release of draft Guidelines may give rise to confusion and result in members of the public and public authorities seeking to rely on the draft Guidelines with regard to the processing of AIE requests despite the fact that these should have no effect in accordance with the AIE Regulations, until signed by the Minister.

38. I have made it clear in many of my previous decisions that, as a general matter, I do not accept that the possibility of environmental information being misunderstood or misinterpreted is reason enough to refuse access to that information under the AIE regime.

39. That being said, in light of my functions under article 12 of the Regulations, I am aware that AIE cases can be difficult and time-consuming due to a number of factors including the complexity of the subject matter and a lack of clarity on how the law should be interpreted. It is therefore necessary to minimise any scope for confusion. However, I consider that this could be largely achieved, as the appellant has suggested, by clearly outlining that the draft Guidelines are a draft and have no effect, in accordance with article 14 of the Regulations, unless and until signed by the Minister. Such a statement could also make it clear that insofar as the draft refers to caselaw or any other legal references, it is intended to reflect the position as of the date on which the draft was prepared. I also note that the current Minister’s Guidance and the draft Guidelines clearly state that they are non-binding in nature and are not intended to offer a legal interpretation. This should also minimise any potential detriment which might be caused by a member of the public or a public authority seeking to rely on the draft Guidelines.

40. I also consider that this factor is outweighed by the factors outlined below.

Public interest in disclosure

41. As I have noted above, there is a strong public interest in the publication of draft documents that provide insight into a public authority’s position as it was at the time the draft was prepared. The disclosure of draft documents in those circumstances contributes to the public’s understanding of the public body’s environmental decision-making processes and functions.

42. The appellant has also argued that while releasing the draft Guidelines would not equate to public consultation in the strict sense, it would allow for greater public participation in relation to the application of the current AIE Regulations as well as the ongoing review process.

43. Although I consider that public consultation is less imperative in the circumstances of this case than it might be where an overhaul of existing legislation or policy was being considered, I do consider that there is a public interest in disclosure of the draft Guidelines in circumstances where they have been in preparation since 2017 and where, according to DECC, a final version of the Guidelines will not be published until revised AIE Regulations are enacted.

44. I note that it is DECC’s intention to revise the AIE Regulations and that a public consultation has been carried out in this respect. This reduces, to some extent, the public interest in releasing the draft Guidelines. However, there is no precise timeline for revised AIE Regulations to be enacted. In the meantime, requests continue to be made under the existing Regulations, which will need to be dealt with under the existing AIE regime. The existing Minister’s Guidelines in respect of the current AIE Regulations date from May 2013. Since that date, there have been a number of significant developments both with respect to the Regulations themselves and as a result of a number of decisions of the Irish and European Courts providing more detailed guidance as to the manner in which they should be interpreted.

45. It is also significant in my view that public money has been spent engaging consultants to prepare draft Guidelines for Ministerial sign-off. Were the draft Guidelines to remain unpublished (which DECC submits they will until further amendments or updates are made in light of the anticipated amendments to the AIE Regulations) and access to the draft Guidelines refused, this expenditure would be largely in vain. On the other hand, although there will be no obligation on public authorities to have regard to the draft Guidelines (as there would be under article 14(2) in respect of any completed Guidelines) providing access to the draft Guidelines would give those authorities

and members of the public the benefit of the updated information contained in those draft Guidelines with regard to legal developments in AIE. More importantly in my view, publication of the draft Guidelines is likely to engender public discussion as to whether those Guidelines should be subject to Ministerial sign off and published in final form. There is therefore a strong public interest in providing access to the draft Guidelines.

Conclusion

46. Having considered the factors outlined above, I consider that the public interest in disclosure outweighs the interest in refusal.

47. As such, while I am satisfied that the exception in article 9(2)(c) does apply to the draft Guidelines, it cannot be relied upon by DECC as a grounds to refuse the draft Guidelines as the public interest in the disclosure of those Guidelines outweighs any interest served by their refusal. It is therefore not necessary for me to consider the issue of partial disclosure in accordance with article 10(5) of the Regulations.

Decision

48. Having carried out a review under article 12(5) of the AIE Regulations, I annul DECC’s decision and direct release of the draft Guidelines. For the avoidance of doubt, I have no objection to DECC marking the Guidelines as draft in advance of their release however, this is ultimately a matter for DECC.

Appeal to the High Court

49. 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