Decision
Right to Know CLG and Bord na Móna plc
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-141685-D2F5Q6
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-141685-D2F5Q6
Published on
Whether Bord na Móna was justified in refusing the request under article 9(2)(a) of the AIE Regulations.
14 July 2025
1. This case relates to a request for information, made on 11 April 2023, textually as follows:
Under the AIE Regs to request the following in relation to meetings of the BnM Board for the Years 2020, 2021, 2022 and 2023 YTD
1) Agenda/minutes of the Board
2) Copies of presentations, analysis, reports or other written records provided to the Board in relation to Board meeting agendas (i.e. where records are noted in agenda/minutes, please consider these records within scope of the AIE)
For the purposes of this AIE, please consider active disclosure, via publication on BnM website or gov.ie
2. On 12 May 2023, BnM informed the appellant that, due to the volume or complexity of the environmental information requested, and as provided for under article 7(2)(b) of the AIE Regulations, it was extending the time to provide a response to the request by up to two months from the date of receipt of the request, in this case by 10 June 2023.
3. On 17 May 2023, BnM wrote to the appellant to inform it that, following an investigation of the records that could potentially fall within the scope of the request, it had identified approximately 600 such records, requiring more than 50 hours of review by a senior member of BnM staff. BnM accordingly requested the appellant“to consider limiting [the] request to a narrower timeframe or to limit the scope of [the] request, particularly with regard to category 2)” , evincing a willingness to offer any assistance that might be required in this regard.
4. On the same day, the appellant provided an alternative, narrowed request, textually as follows:
1) Agenda/ minutes of the Board.
For 2) we can narrow the scope if you can provide the Schedule of Record of the presentations, analysis, reports or other written records provided to the Board in relation to Board meeting agendas. As we are only seeking environmental reports here, I'd assume there is not 600+ records in the schedule?
5. On 16 June 2023, BnM issued its first instance decision to the appellant, in which it apologised for the late response, due to a change in decision-maker during the course of the review of the request. In relation to the narrowed request provided by the appellant, it stated that it did“not in any way limit the request nor reduce the time involved in dealing with it” . It went on to state it had identified 565 documents relevant to the two parts of the request, indicating that it would take, in realistic terms, between 52 and 55 hours, or seven working days, to conduct a preliminary review of each to ascertain whether any might constitute environmental information and further time to determine the extent to which any exemptions applied and more time still to apply factors weighing in favour of release against non-release. It identified a further 18 days for these further activities. These, added to the seven days for the preliminary review, would total 25 working days or the equivalent of five working weeks. It was therefore BnM’s view that the request was manifestly unreasonable within the meaning of article 9(2)(a) of the AIE Regulations, as responding to the request would involve BnM in disproportionate effort and would obstruct or significantly interfere with the normal course of its activities. Having weighed the factors in favour of release against those which favoured non-disclosure, BnM determined that the public interest lay in favour of non-release, as attending to the request would divert the activities of a senior member of staff away from his“normal duties” and“core work” which are of “critical importance” to BnM. It added that the information the subject of the request is not of a kind that one would expect to be organised in a manner that enables its easy dissemination and that the information is not published. In regard to AIE exempting provisions that would likely apply to some of the information identified, the decision cited articles 8(a)(iv), 9(1)(c) and 9(2)(d). Accordingly, BnM refused the request.
6. On 3 July 2023, the appellant requested an internal review of BnM’s original decision.
7. On 21 August 2023, BnM issued its internal review decision. BnM acknowledged that the decision was late, explaining that this was due to the submission of an appeal to this Office by the appellant following BnM’s late original decision, which had caused “some confusion”. To note that the appeal to this Office on that occasion was withdrawn by the appellant. The decision affirmed BnM’s original decision for the same reasons and on the same grounds, considering the request manifestly unreasonable under article 9(2)(a) of the AIE Regulations.
8. The appellant submitted an appeal to this Office on the same day, 21 August 2023.
9. I am directed by the Commissioner to carry out a 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 by BnM. In addition, I have had regard to:
• (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 Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the “Minister’s Guidance”)
• the finding of the Court of Justice of the European Union (CJEU) in T-2/03 Verein für Konsumenteninformation v. Commission of the European Communities (Verein für Konsumenteninformation); the opinion of the Advocate General of the CJEU in C-217/97 Commission v Germany and BnM v Commissioner for Environmental Information Case C-129/24 ;
10. What follows does not comment or make findings on each and every argument advanced but I have considered all materials submitted in the course of the investigation.
11. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority's internal review decision and to affirm, annul or vary it. This review is solely concerned with whether BnM was justified in refusing access to the information requested on the basis that the request was manifestly unreasonable.
12. In most appeals before my Office I require the public authority to search for and review all environmental information held, and to make this information available to my Office for the purposes of my review. However, where a public authority contends that a request is manifestly unreasonable with regard to volume or range, I must address this ground for refusal as a preliminary matter. It is my view that it would defeat the purpose of article 9(2)(a) to require a public authority to process an unreasonable volume or range of information for the purpose of providing it to my Office. For this reason, I have not required the provision to this Office of copies of the information that is potentially relevant to the request in this case.
13. I note that BnM’s notification of 12 May 2023 to the appellant that it was extending the time to issue a reply to its request by one month was strictly outside the one month time limit which article 7/(2)(b) of the AIE Regulations stipulates for such purpose, and that its internal review decision issued more than two months from the date of receipt of the request, again outside the stipulated time limit. While the appellant has not specifically raised this as an issue in its appeal to this Office, I take the opportunity to remind public authorities of the importance of abiding by the provisions of the AIE Regulations in their responses to appellants.
14. Article 9(2)(a) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. This provision seeks to transpose Article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and, in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.
15. Article 9(2)(a) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in articles 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.
16. The Aarhus Convention Compliance Committee (ACCC) has emphasised that “whether or not a request is manifestly unreasonable relates to the nature of the request itself, for example, its volume, vagueness, complexity or repetitive nature, rather than the reason for the request, which is not required to be stated.” (Report adopted on a request for advice by Belarus, ACCC/A/2014/1 , paragraph 28).
17. The Minister’s Guidance, at paragraph 12.8, states that article 9(2) of the AIE Regulations“clarifies that a public authority may refuse to make information available if the request is considered unreasonable due to the range of material sought, if the request is too general or if the material requested is not yet completed. Public authorities are requested to invoke these grounds for refusal sparingly, and to assist the applicant (to reformulate a request, for example) as appropriate” . In light of this, I am of the view that where a public authority intends to refuse a request under article 9(2)(a) of the AIE Regulations, it should first assist the appellant to reformulate the request as appropriate. Both public authorities and appellants should seek to liaise constructively with a view to processing the request as efficiently as possible. It is important to note that constructive engagement is not, in and of itself, a requirement for a public body’s reliance on or an immediate basis for refusal under article 9(2)(a) of the AIE Regulations.
18. I note that, following an extension it had availed of to provide a first instance decision to the appellant under article 7(2)(b) within two months of the date of receipt of the request (see above), BnM wrote to the appellant to inform it that, following an investigation of the records that could potentially fall within the scope of the request, it had identified approximately 600 such records, requiring more than 50 hours of review by a senior member of BnM staff. BnM accordingly requested the appellant“to consider limiting [the] request to a narrower timeframe or to limit the scope of [the] request, particularly with regard to category 2)” , evincing a willingness to offer any assistance that might be required in this regard. The appellant’s response was to express willingness to narrow the scope of the second part of its request if BnM was able to“provide the Schedule of Record of the presentations, analysis, reports or other written records provided to the Board in relation to Board meeting agendas.” It added that it assumed that“there is not 600+ records in the schedule?”
19. Whilst I acknowledge that the provision of a schedule of records in this case may well have assisted the appellant in identifying records that would have allowed it to refine its request, and while I have always encouraged public authorities to provide such a schedule with their decision letters, I equally acknowledge that there is no obligation under the AIE Regulations for public authorities to provide such a schedule. In this particular case, I accept also that the compiling of a schedule of records comprising detail on possibly more than 600 documents would in itself be a significant administrative burden, particularly if it is for the sole purpose of enabling an appellant to refine a request rather than for responding substantively to an AIE request. As a major reason for refining a request is to enable a public authority to narrow the scope of searches for relevant records and to respond adequately to a request without undue delay, I am satisfied that it was not unreasonable of BnM to choose not to provide a schedule of records to the appellant. I am also satisfied that it was possible for the appellant to refine his request without the need for a schedule.
20. I am satisfied that BnM sought a reformulation of the request in this case in an attempt to refine its review of the identified records in order to be able to respond to the request. The decision-maker, in addition, offered assistance to the appellant in this endeavour. However, as the reformulation of a request requires collaboration on the part of an appellant, I am of the view that greater willingness on the part of the appellant in this case to reformulate its request such as to reduce the potential number of records in scope would have been fruitful and would likely have allowed the appellant to receive some of the information originally sought.
21. Article 4(1)(b) of the AIE Directive provides that“Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable” . The European Commission’s First Proposal for the AIE Directive for the AIE Directive envisaged that the exception in Article 4(1)(b) would cover requests“variously described in national legal systems as vexatious or amounting to an abus de droit.” It noted that“compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. Public authorities should be able to refuse access in such cases in order to ensure their proper functioning.” The Aarhus Convention Compliance Committee (ACCC) has emphasised that“whether or not a request is manifestly unreasonable relates to the nature of the request itself, for example, its volume, vagueness, complexity or repetitive nature, rather than the reason for the request, which is not required to be stated.” (Report adopted on request for advice by Belarus, ACCC/A/2014/1, para. 28).
22. In respect of a request which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, more than simple volume or complexity is required. Both article 7(2)(b) of the AIE Regulations and Article 3(2)(b) of the AIE Directive specifically envisage that public authorities will deal with voluminous or complex requests, albeit in a longer timeframe. In this respect, I note the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission (Konsumenteninformation) , at paragraphs 108-110, and the guidance at page 84 of the Aarhus Guide. I also note the parallel duty in Article 7(1) of the AIE Directive to ensure that public authorities organise environmental information with a view to its active and systematic dissemination to the public. In his Opinion in C-217/97 Commission v Germany at paragraph 30, Advocate General Fennelly stated that this duty indicates that individual requests should, in principle, be on matters of detail. As such, the fact that a request is detailed does not mean that it is necessarily unreasonable.
23. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, I must examine whether responding to the request would involve the public authority in disproportionate cost or effort, or would obstruct or significantly interfere with the normal course of its activities. In light of the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission , at paragraphs 101-115, I consider that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request. I expect that if a public authority wishes to rely on the manifestly unreasonable nature of a request, that public authority will clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.
24. This position is supported by recent comments from Advocate General Medina in his opinion on BnM v Commissioner for Environmental Information Case C-129/24 , in which he stated“in so far as it constitutes an exception to the general rule that information must be provided, refusal on the ground of a manifestly unreasonable request must remain exceptional” (at paragraph 117). In this opinion he also states“In particular, with regard to the volume of the information requested, according to Article 3(2)(b) of Directive 2003/4 that factor (as well as the complexity of the information requested) justifies an extension of the one-month time limit in which the administration must reply. It follows from a combined reading of Article 3(2)(b) of Directive 2003/4 and Article 4(2)(b) of that directive that the volume of the requested information alone does not render a request manifestly unreasonable” (at paragraph 119). He concludes however that a holistic view must be taken of each case, stating“it follows that determining whether a request is manifestly unreasonable depends not on the number, the nature or the frequency of requests taken in isolation, but on all the circumstances of each case” (at paragraph 125).
25. It is also important to bear in mind article 5 of the AIE Regulations and Articles 7 and 3(5) of the AIE Directive, which place duties on public authorities to organise and actively disseminate environmental information, to support the public in seeking access to information and to put practical arrangements in place to ensure the effective exercise of the right to access environmental information. It is not within this Office’s powers to examine the implementation of article 5 of the AIE Regulations or article 7 of the AIE Directive by public authorities. However, I am satisfied that the exemption in article 9(2)(a) is not intended to endorse any failure by a public authority to comply with its duties to organise and disseminate environmental information under those provisions. Furthermore, in every case, regard should be had to the purpose of the AIE Regime, as reflected in Recital 1 of the Preamble 6 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.” Accordingly, in cases involving article 9(2)(a) this Office may consider whether the information requested is the kind of environmental information that one would expect to be organised by the public authority in a manner that enables its easy dissemination.
26. In both its original and internal review decisions, BnM refused the request on the basis of 9(2)(a), arising from its view that the request was manifestly unreasonable having regard to the volume or range of information sought and the time and resources that would have to be deployed in order to respond to the request.
27. The appellant was invited to make submissions on the content of BnM’s decision letters, all of which content was replicated in its submissions to this Office. However, it responded that it had no submissions to make, its representative noting that“I’d see this as a straightforward request for board minutes that cover environmental issues, and would assume that given BnM’s public remit there would be a public benefit to release”.
28. In its internal review decision, BnM’s internal reviewer stated the following:
(a)“32 meetings of the board of Bord na Móna plc. took place between January 2020 and March 2023, with 501 supporting documents furnished to the Board in respect of those meetings. Including the agenda and minutes for each Board meeting, this totals 565 records within the scope of your request. The original reviewer estimated that a preliminary screening review of each record to ascertain whether or not it may constitute/contain environmental information was likely to take between 52 and 55 hours (or 7 to 8 working days), a timeframe with which I agree.”
(b)“Thereafter, a comprehensive review of each record will be necessary to determine what aspects constitute environmental information, the consideration and application of any exemptions under the AIE Regulations and application of the public interest test in accordance with Articles 10(3) and 10(4) thereof. The original decision maker estimated that such an exercise would take between 13 and 18 full working days at least, with which I would concur.”
(c)“As was noted by the original decision maker, the records the subject of your request contain highly confidential and sensitive information, much of which would not be matters to which employees generally are privy. Accordingly, a review of such information can only be carried out by a limited number of senior employees of Bord na Móna plc, such as [the original decision-maker] or myself [the internal reviewer]. Such a task cannot be delegated to more junior employees.”
29. As the internal reviewer was BnM’s Corporate Secretary and General Counsel, it was her view that this“role is of crucial importance to Bord na Móna plc, being an integral member of the governance team, with associated duties arising therefrom. In addition, as General Counsel I am responsible for providing strategic legal services to the CEO and management team in addition to overseeing the Bord na Móna plc. legal team.”
30. It was her further view that“[s]imilar to the original decision maker, spending the equivalent of at least 5 working weeks [between an initial preliminary review and subsequent comprehensive review], exclusively dealing with [the] request will have a hugely detrimental impact on my ability to carry out my normal duties, which overall would have an adverse impact on Bord na Móna plc, having regard to the importance of my role within the company."
31. For the reasons given in the foregoing paragraphs, the internal reviewer was of the view that the request“is manifestly unreasonable within the meaning of Article 9(2)(a) of the AIE Regulations, as it would obstruct or significantly interfere with the normal course of Bord na Móna plc.’s activities.”
32. She went on to make reference to the decision of the CJEU in T-2/03 Verein für Konsumenteninformation v. Commission of the European Communities and the combined decision in two cases before the Commissioner, OCE-129497-C3R3C7 and OCE-132734-K2K5D8 , submitting that these cases “establish that when considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority concerned, which involves an examination of whether responding to the request would involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities.”
33. Whilst BnM’s submissions to this Office essentially replicated the grounds and reasons for refusal of the information expressed in its original and internal decision letters to the appellant, it elaborated on certain specific points, including the following:
(a) It elaborated on its analysis of the previous combined decision of the Commissioner, stating that the Commissioner held (at paragraph 16) that “[w]hen considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, I must examine whether responding to the request would involve the public authority in disproportionate cost or effort, or would obstruct or significantly interfere with the normal course of its activities. In light of the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission of the European Communities , at paragraphs 101- 115, I consider that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy.”
(b) In respect of the 13 – 18 working days (or between 94 and 132 hours as detailed in BnM’s submissions) estimated by the original decision-maker required to carry out a comprehensive review of each record (see paragraphs 26 above), this was “based on an estimate of 20 minutes to review and record a decision in respect of each document, or potentially longer depending on how many of the records constitute or contain environmental information and having regard to the fact that some records may require a longer period to conduct such exercise.”
(c) It went on to state that spending “a minimum estimated timeframe working exclusively between 20 and 26 working days (or potentially more), between preliminary and comprehensive reviews, in answering the appellant’s request would have a hugely detrimental impact on the reviewer’s ability to carry out their normal duties, which overall would have an adverse impact on BnM having regard to the importance of both reviewers’ roles to BnM and its objectives. It is further submitted that even the preliminary review involving a period of between 7 to 8 working days exclusively dealing with the Appellant’s request would similarly have such an adverse effect.”
(d) In respect of the approximate 600 records that are potentially relevant to the request and the review of each required in order to determine the releasability of each, it stated that such exercise “cannot be concluded by description alone, as given the breadth of the definition of environmental information, it is possible that a document which ostensibly would not appear to constitute environmental information may actually contain in part some environmental information.”
(e) It was accordingly of the view that answering the appellant’s request “would involve BnM in disproportionate time and effort and would obstruct or significantly interfere with the normal course of the reviewers’ activities. It would further impede the proper functioning of BnM by diverting critical staff members from their core duties for an unduly lengthy period. It would neither be realistic nor practicable for the reviewers to devote all of their working time to the answer of the Appellant’s request, to the detriment of their other duties. Further, even if they were to devote half their working week solely to answering the Appellant’s request, it would not be possible to answer the request within the extended time period provided for in Article 7(2)(b) of the AIE Regulations.”
(f) In respect of the request by the appellant for a schedule of records, it had this to say: “a Schedule of Records cannot be compiled until … a preliminary review [of each record] has been conducted, as it is only after such an exercise has been carried out and records that do not constitute or contain environmental information excluded, that a determination can be made as to what records are likely comprised in the Schedule.”
(g) It found support for this position in Verein, which held at paragraph 69 that, according to settled case-law, “the examination required for the purpose of processing a request for access to documents must be specific in nature. On the one hand, the mere fact that a document concerns an interest protected by an exception cannot justify application of that exception…. Such application may, in principle, be justified only if the institution has previously assessed, firstly, whether access to the document would specifically and actually undermine the protected interest and, secondly, in the circumstances referred to in Article 4(2) and (3) of Regulation No 1049/2001, there is no overriding public interest in disclosure…..Consequently, the examination which the institution must undertake in order to apply an exception must be carried out in a concrete manner and must be apparent from the reasons for the decision …”
(h) BnM concluded by saying that the court “went on to hold in that case that in principle a concrete, individual examination must be carried out in respect of each document referred to in the request for access and differentiated between an abstract, general examination. The Court acknowledged that such an examination may not be necessary, where due to the particular circumstances of the individual case, it is obvious that access must be refused or granted. Whilst BnM acknowledged that this case did not relate to the AIE Directive but rather to an EU regulation governing access to documents held by the EU institutions, it submitted that the principles set out in the case are equally applicable in an AIE context.”
34. Having regard to the nature of the request, I am satisfied that the information sought is both voluminous and wide-ranging. The time frame of the request spans not far short of three and a half years and the request seeks information that dates as far back as January 2020.
35. BnM has identified 565 documents that potentially fall within the scope of the request and has given detailed information in regard to the work that would be required to review those documents, ascertain how many fall to be considered environmental information and determine how many of these fall to be released or not released by virtue of any relevant AIE exempting provisions. It states that the time required to carry out these functions would interfere with its other core functions and would require the equivalent of between 20 and 26 days of work by one person devoted to the functions it has described as necessary, which it considers to be a substantial amount of time for any business to devote exclusively to one task. I am satisfied broadly that BnM’s time estimates for the various functions required to verify the relevance of each identified document to the request and to ascertain the releasability of each are sufficiently detailed to warrant credibility and that they indicate a requirement by BnM to assign to the various tasks a person or persons of such seniority within the organisation that is capable of carrying out the review of the records and the application of any exempting AIE provisions.
36. It is my understanding that, as between the preliminary and comprehensive reviews of the records that BnM state are required, the preliminary review is to identify if a record falls to be considered “environmental information” at first instance, and the comprehensive review entails determining, in respect of those records that have passed the preliminary process in the sense that a decision has been made that, either in part or in their entirety, they constitute environmental information, whether it is appropriate to apply exemptions from release to them and to subject them to the public interest balancing test of article 10(3) of the AIE Regulations. I am satisfied that each record requires to be examined in order that a determination be made as to the appropriateness of the application to it of any exempting provision and the public interest balancing test.
37. I have had regard in this case to the volume and the range of information sought, the nature of the information requested, the task that must reasonably be undertaken to identify it, and the impact of dealing with the request on BnM’s other functions. I am mindful that the exception in 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. I note in this regard that for a refusal under 9(2)(a) to be justified, it must be manifestly unreasonable, not just voluminous.
38. Article 9(2)(a) of the AIE Regulations is an acknowledgement of the fact that public authorities should not be required to undertake the processing of AIE requests where to do so would place an unreasonable burden on what are often limited resources. In contrast with the public perception that public authorities have unlimited resources not only to carry out their other statutory functions but also to engage with the AIE access regime, the reality is that this is not the case but they have a budget within which to contain expenditure. In the circumstances of this case and having regard to BnM’s time estimates, which I find not to be unreasonable, and resources required, and the steps to be taken, I accept its contention that the processing of the request would place an unreasonable burden on it, involving disproportionate effort that would result in a significant interference with its other work. I am satisfied that the result would be a particularly heavy administrative burden on BnM. On the facts of this appeal, I find that the threshold under article 9(2)(a) has been met and that the request is manifestly unreasonable.
39. As noted above, the exception in article 9(2)(a) is not intended to endorse any failure by public authorities to comply with their duties of dissemination of environmental information under article 5 of the AIE Regulations and Article 7 of the AIE Directive. Accordingly, it is relevant to consider whether the information requested is the kind of environmental information that one would expect to be organised by the public authority in a manner that enables its easy dissemination. The appellant in this case sought access to information consisting of BnM board agendas and minutes and associated documentation to be discussed or presented at those meetings. I note the appellant’s comment in its request to BnM that BnM should “consider active disclosure, via publication on BnM website or gov.ie ”. Whilst I accept that it is open to BnM to publish all or some of the information the subject of this appeal, I acknowledge also that BnM is a semi-state corporation involved in commercial enterprises in competition with other commercial entities and that the publication of material such as board agendas, minutes and associated material relating to its activities may include matters of a commercially sensitive nature that it is not appropriate to divulge to the world at large generally and to the benefit of its competitors particularly. I do not consider that commercially confidential information to be the kind of environmental information that one would expect to be organised by BnM in a manner that enables its easy dissemination under article 5 of the AIE Regulations, in particular, having regard to the type of information indicated at article 5(2) of the AIE Regulations. However, that is a matter for BnM itself to consider.
40. I emphasise that my conclusion in this case should not be taken to mean that public authorities may rely on the exception in article 9(2)(a) in respect of every request for voluminous or wide-ranging information. Each request to a public authority must be considered on its own particular facts. Public authorities have obligations under the AIE Directive and AIE Regulations and must put in place adequate resources to comply with those obligations.
41. Although I have found article 9(2)(a) of the AIE Regulations is engaged, that is not the end of the matter. It is necessary to weigh the public interest served by disclosure against the interest served by refusal as is required by articles 10(3) and (4) of the AIE Regulations.
42. In considering the public interest served by disclosure, it is important to be mindful of 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.” The AIE regime thereby recognises a very strong public interest in openness and transparency in relation to environmental decision-making.
43. The AIE regime also acknowledges that there may be exceptions to the general rule of disclosure of information, as noted in Recital 16 of the AIE Directive, which provides that“public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases” . One such case is where the request is manifestly unreasonable having regard to the volume or range of information sought. The public interest in maintaining the exception lies in ensuring that the processing of AIE requests does not cause an unreasonable interference and/or disruption of the work of a public authority.
44. As described above, despite there having been engagement between the parties on the matter of reducing the scope of the request, this bore no fruit, the appellant expressing an inability to reformulate its request without a schedule of records. As I have established above, I am satisfied that a schedule of records is not a prerequisite to a reformulation of a request generally, nor in this particular case. BnM’s position on the public interest test in this appeal, provided in its decision letters to the appellant and in submissions to this Office, elicited no response from the appellant. As stated, I do not consider the information sought to be the kind of environmental information that one would expect to be organised by BnM in a manner that enables its easy dissemination under article 5 of the AIE Regulations.
45. In its internal review decision, BnM set out its view that“[t]here is clearly a public interest in ensuring the Company Secretary and General Counsel [the internal reviewer in this case] of a public authority is not unduly diverted from her duties for a prolonged period, which duties include ensuring the company abides by its internal regulations and requirements under company law. I am of the view that this public interest outweighs the public interest that would be served by disclosure of the requested information.”
46. It further stated that“a request which is likely to take at least 5 full working weeks to respond to and which of its nature, can only be dealt with by a senior member of staff of Bord na Móna plc. would very clearly involve Bord na Móna plc. in a significant administrative burden and disproportionate effort and would obstruct or significantly interfere with the normal course of its activities, by diverting senior members of staff from duties integral to the operation of Bord na Móna plc.”
47. In considering the factors at play in weighing up the public interest in release of information against its non-disclosure, BnM elaborated on its reference to the Verein case cited above in its submissions to this Office, citing with approval the dictum in that case, at paragraph 102, that“[a]n institution must … retain the right, in particular cases where concrete, individual examination of the documents would entail an unreasonable amount of administrative work, to balance the interest in public access to the documents against the burden of work so caused, in order to safeguard, in those particular cases, the interests of good administration.” BnM went on to state that the Court“held that such a derogation was only available in exceptional circumstances, where the administrative burden entailed by a concrete, individual examination of the documents, ‘proves to be particularly heavy, thereby exceeding the limits of what may reasonably be required’ (paragraph 112).”
48. It concluded by stating that,“[a]s recognised in Verein, there is clearly a public interest in safeguarding the interests of the proper administration of public authorities and ensuring they are not subjected to an unduly onerous administrative burden in answering individual requests under the AIE Regulations. This needs to be counterbalanced against the public interest in having access to environmental information held by or for public authorities. Applying the public interest test under Articles 10(3) and (4) of the AIE Regulations, it is submitted that the public interest in refusing the request on the basis that it is manifestly unreasonable, thereby preventing the reviewer/(s) from being diverted from their normal duties, which are of critical importance to BnM, for such a prolonged period and in consequence ensuring the good and proper administration of BnM by allowing such staff member/(s) to attend to their core duties in BnM’s interests, outweighs the public interest that would be served by conducting the laborious and time-consuming review that will be necessary to answer the request.”
49. BnM submits that it would take a senior officer anywhere between 52 and 55 hours, or seven to eight working days, to conduct a preliminary review of the 565 documents it has identified as relevant to the request, allowing“a very conservative timeframe of 5 minutes” to review each record“to ascertain whether or not they may constitute or contain environmental information” . In addition, it has identified a likely timeframe of,“at a minimum” between 94 and 132 hours, or 13 to 18 working days to conduct“a comprehensive review involving a determination of what in fact is environmental information…the application of exemptions and the public interest test under Articles 10(3) and 10(4)” . This latter exercise, it states, is based on an estimate of 20 minutes to review and record a decision in respect of each document“or potentially longer” in view of the fact that some records may require a longer period to review. Given that many of the records at issue may in fact, on their face, constitute environmental information, I am of the view that the hours required for a preliminary review may in fact be fewer than the estimates made by BnM. However, even should they turn out to be fewer, in combination with the hours required to be expended in BnM’s comprehensive review, I am satisfied that the total time required for review and to carry out the other steps indicated by BnM to respond to the request to be considerable.
50. In my view, there is a public interest in ensuring the proper administration of public authorities and ensuring that the administrative burden placed on them by virtue of the AIE Regulations is not unduly onerous or is such as could negatively affect their day-to-day administration or operations. I am also of the view that there is a very strong public interest in giving public authorities the space to carry out their statutory functions. This is even more so when the public authority is a commercial semi-state, such as BnM which has a mandate to operate on a commercial basis and generate profit and to provide income to the Exchequer in the form of dividends. Additionally, there is a public interest in ensuring good corporate governance of public authorities, in consequence of which the imposition of a burden on a public authority to answer an AIE request of significant volume, which has the effect of diverting a senior member or members of staff from key duties on matters of strategic importance, regulation and governance, is not ultimately in the interests of the public.
51. A further factor to be considered in assessing the public interest, is that efforts were made by BnM to try to reduce the administrative burden entailed in answering the request in this case by seeking for it to be narrowed, an effort that ultimately failed due to non-cooperation on the part of the appellant.
52. In all the circumstances, having regard to the nature of the request, the period of time to which it relates, the resources and the work required to attend to the request, particularly the requirement that a senior manager or managers devote a not inconsequential number of weeks to this work, the resulting significant interference with the normal course of BnM’s activities, impacting negatively on the work it is required to carry out under statutory obligation, I accept BnM’s submissions relating to the public interest weighing in favour of refusal.
53. I emphasise that my conclusion in this case should not be taken to mean that public authorities may rely on the exception in article 9(2)(a) in respect of every request for voluminous or wide-ranging information. Each request to a public authority must be considered on its own particular facts. Public authorities have obligations under the AIE Directive and Regulations and must put in place adequate resources to comply with those obligations.
54. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the decision of BnM.
55. 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.
Julie O’Leary
On behalf of the Commissioner for Environmental Information