Decision
Groundwork and Department of Housing, Local Government & Heritage
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-125534-X2V8W8
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-125534-X2V8W8
Published on
1. This appeal relates to a request for environmental information by a non-governmental organisation called Groundwork. In its submission to this Office the organisation states that it has been involved, over a period of more than 40 years, initially in the clearance and maintenance of invasive Rhododendron from Killarney National Park and more recently in what it terms as “the annual monitoring and recording of an ongoing re-infestation” of these same woodland areas.
2. On 11 February 2022 the appellant, on behalf of Groundwork, submitted a request for information under the AIE Regulations for the following information:
3. “All records and communications relevant and/or related to the Killarney National Park Rhododendron Review from the period 9 July 2019 to the present, including but not confined to (1) documents relevant to the finalisation of the scope/approach of the review with the consultants subsequent to 9 July 2019, (2) copies of all drafts of the review to date.”
4. The Department responded to the appellants request on 14 February indicating that the request “as it stands, would be considered invalid under the AIE Regulations and as such we are refusing your request under Article 9(2).” The Department then provided the appellant with detail on article 9(2)(a) and 9(2)(b) of the AIE Regulations in support of their position. In this letter the Department also requested that the appellant provide clarification on the type of records which he was requesting, the persons involved in relevant communications and what documents “relevant to the finalisation of the scope/approach of the review with the consultants” were being sought.
5. After a period of engagement between the parties, the objection under article 9(2)(a) was withdrawn and a minor revision was agreed by the parties on the request under article 9(2)(b). It should be noted that in consultation with the Department the appellant agreed to re-word his request to remove the wording “or related” from the request, as the Department had indicated that it could not guarantee it could identify all records that could “relate” to a topic.
6. On 07 April 2022 the Department responded to the appellant outlining the decision to refuse access to the information sought on the basis that the, “request relates to material which is in the course of completion and still unfinished. Therefore, I am refusing your request (under Regulation 9(2)(c) a public authority may refuse to make environmental information available where the request ……..(c) concerns material in the course of completion, or unfinished documents or data. This material may not be completed until end 2022 (or later).”
7. The appellant requested an internal review of this decision on 14 April 2022.
8. The Department issued its internal review decision on 26 May 2022 in which it outlined its intention to vary the decision of the initial decision maker and indicating that, “some of the records can be released while records with copies of the draft report are still refused”.
9. On 22 June 2022 the appellant submitted an appeal to this Office.
10. I am directed by the Commissioner for Environmental Information to carry out a review of these appeals under article 12(5) of the AIE Regulations. In so doing, I have had regard to the submissions made by the parties in this appeal. In addition, I have had regard to:
a. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
b. 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); and
c. the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
d. 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
11. During the course of this review, the Department provided this Office with a schedule listing 48 records, which it identified as relevant to the appellant’s request and of which 41 were granted in full, 4 records part-refused under article 9 (2)(c), 2 records part-refused under article 9 (1)(c) with the remaining 1 record relating to a communication from the appellant and for which no decision to grant or refuse this document was given. All 48 records provided to this office consist of email communications, with just one record containing a scanned version of an email and attached document provided, which had been sent to the Department by the appellant. I note that the draft report which has been refused by the Department under article 9(2)(c) has not been provided to this Office for review.
12. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
13. In accordance with article 12(5) of the AIE Regulations, the Commissioner’s role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, this Office will require the public authority to make available environmental information to the appellant.
14. The scope of this review is confined to whether the Department was justified, under articles 9(1)(c) and 9(2)(c) of the AIE Regulations, in refusing access to information sought by the appellant relating to the Killarney National Park Rhododendron Review.
15. As set out above the Department, in its original decision, refused the appellants request for relevant information under article 9(2)(c) of the AIE Regulations and informed him that this material“may not be complete until the end of 2022 (or later) ”. This decision was varied at the internal decision stage with the authority indicating that some records could be released while others with copies of the draft report in question would be withheld. I note that the Department has in its internal review decision indicated its reliance on article 9(1)(c) of the AIE Regulations as part of its reasoning to withhold access to relevant documents.
16. At the invitation of the investigator in this case the Department was given the opportunity to make a final submission to this Office in which it could provide additional supporting evidence for its position. This request by my investigator set out the AIE articles relevant to the appeal and requested that the Department give further detail while also putting forward a number of questions related to issues raised by the appellant. In its submission, the Department gave the following detail:
•“Article 9(2) (c) of the regulations provides that a public authority may refuse to make available environmental information as it is not in the public interest to release the report as it is still a draft and therefore is subject to change in the future before final publication. This applies to all records listed below:
•Record 10
•Record 11
•Record 13
•Record 29
•Article 9(1) C
The decision maker weighed that this was commercially sensitive information and therefore the amounts on both records were redacted”.
17. The Department also provided some brief detail on the issues raised by the appellant.
18. The appellant raised a number of issues within his initial submission to this Office. These are summarised as follows:
* Not all documents released to the appellant could be classed as “relevant” to the request
* All reasonable efforts to maintain environmental information regarding the Rhododendron Review were not made
* The public interest in granting access to the report in question was not given sufficient weighting
* There is significant evidence that Article 9(2)(c) has not been correctly applied in the case of Records 10, 13, 14 & 29.
* The public interest test which was applied by NPWS to Records 10, 13, 14 & 29 is evidently spurious because the criterion used in the public interest is the same criterion as Article 9(1)(c)
* Attachments to a number of records were withheld without justification
* In support of his appeal, the appellant outlined why release of the information in question is vital for transparency within the review which these records related to.
It should be noted that considerable detail was given by the appellant in support of his appeal within this submission and that each issue raised, and summarised above, was also explained at length.
19. The appellant provided an additional submission to this Office where he set out the following points, which I have summarised for ease of reproduction:
_* The appellant questioned why there were no records generated over a 26-month period of relevance within the timeframe as set out in his original request.
_* Draft reports were removed from released records. The appellant requested that these be provided along with comments by a named individual on the draft report in question.
_* The appellant requested that a tracked changes version of Record 43, noted as “Grant”, on the Schedule of Records, be provided to him
_* The final version of the report in question, as referenced within a communication seen by the appellant, was also requested.
20. Information was withheld from two records under article 9(1)(c) by the Department. The relevant records are two invoices from a third-party environmental consultancy body for work carried out in the preparation of the aforementioned review and numbered as items 14 and 38 within the schedule of records as provided by the Department to this Office.
21. Article 9(1)(c) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or European law to protect a legitimate economic interest. This provision seeks to transpose Article 4(2)(d) of the AIE Directive, which, in turn, is based on Article 4(4)(d) of the Aarhus Convention. The Minister’s Guidance, in considering article 9(1)(c) of the AIE Regulations, states:
“The fact that a person or company asks for information to be treated as confidential does not of itself establish it as such for the purpose of the Regulations, and the public authority must satisfy itself that real and substantial commercial interests are threatened. In addition, the fact that the release of information (for example, in relation to a pollution incident) might damage the reputation of a company is not of itself adequate reason for withholding it.” (paragraph 12.4).
22. Article 9(1)(c) must be read alongside article 10 of the AIE Regulations. Article 10(1) of the AIE Regulations provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. Article 10(3) of the 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 article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
23. When relying on article 9(1)(c) of the AIE Regulations, a public authority must show that the information at issue is commercial or industrial in nature; that the commercial or industrial information has an element of confidentiality; that the confidentiality of that commercial or industrial information is provided for in law to protect a legitimate economic interest; and that the economic interest, and thereby its confidentiality, would be adversely affected by disclosure of the information at issue. Again, the public authority must demonstrate a clear link between disclosure of the information that has actually been withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
24. In its submission to this Office the Department outlined that,“the decision maker weighed that this was commercially sensitive information and therefore the amounts on both records were redacted” . I note that no further detail has been provided to this Office by the Department to satisfy the requirements of article 9(1)(c) wherein the onus is placed on the public authority (as outlined above) to, “demonstrate a clear link between disclosure of the information that has actually been withheld and any adverse effect”.
25. As part of the investigation process in this appeal, the third party to whom the relevant records relate to has been contacted by this Office in order for that party to set out its position to this Office on the potential release of the records in question. No submission has been received by this Office from this third party.
26. Having reviewed the relevant records, I do not see how the confidentiality of this information is protecting the legitimate economic interests of the third party company. I cannot see how there could be any adverse effect on the company concerned from the release of the withheld information. Due to this, I am not satisfied that the confidentiality of this information is protecting the legitimate economic interests of any party. This is particularly the case given the age of the information sought. Accordingly, I find that article 9(1)(c) does not apply to the information sought.
27. Article 9(2)(c) of the AIE Regulations provides that 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”. Article 9(2)(c) must be read alongside article 10 of the AIE Regulations which 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 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 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”.
28. I consider that the purpose of this exemption is to give public authorities time and private space to draft and amend documents that they are preparing before they are finalised. The European Commission acknowledged this interest in its First Proposal for the AIE Directive, as did the Court of Justice of the European Union in Case C 619/19 Land Baden-Württemberg v. D.R. at paragraph 44. I emphasise that this interest is in maintaining the confidentiality of draft documents while they are still being actively worked on, rather than in maintaining the confidentiality of completed documents pending the conclusion of decision-making process.
29. The first question to be considered, therefore, is whether the exception contained in article 9(2)(c) can be relied on at all in the circumstances. Article 10(4) makes it clear that a restrictive approach to that question is necessary. The decision of the CJEU inLand Baden-Württenberg also makes it clear that “…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” and that “the risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical”. The CJEU also noted that the purpose of the exception concerning material in the course of completion or unfinished documents is “to meet the need of public authorities to have protected space in order to engage in reflection and to pursue internal discussions” (paragraph 69).
30. In respect of its application of article 10 in the context of article 9(2)(c), the Department in its submissions to this Office, simply stated, “Article 9(2)(c) of the regulations provides that a public authority may refuse to make available environmental information as it is not in the public interest to release the report as it is still a draft and therefore is subject to change in the future before final publication”.
31. The Department have refused or part refused access to four records on the basis of article 9(2)(c), each of which I will consider in turn. When relying on article 9(2)(c) of the AIE Regulations, the public authority should explain why the information at issue falls within the scope of the exception, outlining which limb(s) of the exception is being relied upon. It is then for the public authority to weigh the public interest served by disclosure against the interest served by the refusal as is required by articles 10(3) and 10(4). I note the comments of the CJEU in Case C 619/19 ,Land Baden-Württemberg v DR (Land Baden-Württemberg) :
“…[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.” (paragraph 69)
32. The terms “material in the course of completion” and “unfinished documents or data” are not defined in the AIE Regulations, AIE Directive, or the Aarhus Convention. However, the decisions of the CJEU inLand Baden-Württemberg , and Case C-234/22 ,Roheline Kogukond MTÜ andOthersv Keskkonnaagentuur (Roheline Kogukond MTÜ) , provide some guidance on the exception.
33. WhileLand Baden-Württemberg more specifically concerned the internal communications exception, the Court indicated that both the internal communications exception and the exception concerning material in the course of completion and unfinished documents or data are “intended to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions” (see paragraph 44).
34. Four records have been partially withheld by the Department under article 9(2)(c):
a. Record 10- The refused element of record 10 consists of a draft version of the Rhododendron Management Review report dated 19/08/2021. There are a number of what appear to be “tracked changes” marked in the left-hand margin, and a number of formatting changes marked in the right-hand margin.
b. Record 13- The refused elements of record 13 consist of a draft email from the company engaged to work on the report to officials in the Department, and the same copy of the draft report that is contained in record 10.
c. Record 20- Record 20 consists of comments on the draft report from an ecologist in the NPWS, and a copy of the draft report with comments.
d. Record 29- Record 29 consists of an email from the company engaged to work on the report at the early stages of the project, together with a preliminary draft of the report.
35. Having considered the nature of the withheld information, I accept that the copies of the report concerned were in draft format at the time of sending, and that the emails sufficiently “concern” those draft documents such that article 9(2)(c) applies. However, as set out above, I must also consider the public interest test as required by article 10(5).
36. In favour of release, I consider the following factors to be relevant:
e. The general public interest in the release of environmental information;
f. The management of rhododendron in Killarney National Park has been a significant and costly issue, with reports stating that 2.7 million euro has been spent on its management over the past 5 years . There is a public interest in transparency over how this issue has been dealt with;
g. Rhododendron poses a significant threat to biodiversity in the area.
37. I also note that the appellant is a representative of an established environmental NGO with a significant record of work on this issue and I consider that it is in keeping with the aims and objectives of the Aarhus Convention to allow for the release of information to such organisations.
38. In favour of refusal, I have considered the following factors:
h. The importance of protecting the Department’s private thinking space, as described above inLand Baden-Württenberg.
39. I note that the Department’s submissions state that its position is that the draft documents should not be released as they may be subject to change in the future. However, I do not consider this to be a relevant factor when applying article 9(2)(c) of the AIE Regulations to requested information. I consider that a requestor is capable of understanding that a draft document may be subject to change and that it is open to a public authority to provide context with information when it is being released.
40. In weighing up whether the public interest in release outweighs the interest in refusal, I note that a significant period of time has passed since the requested information was being actively worked on and that it has been reported that progress has been made in tackling this issue . I also note the significance of this environmental issue for one of Ireland’s national parks. Bearing in mind that exemptions must be interpreted in a restrictive manner, I am not satisfied that it is necessary for the information to continue to be withheld in order to protect the Department’s private thinking space in relation to this review. I am also not satisfied that the Department has established that the release of the information would “specifically and actually undermine the interest being protected” by this exemption. In conclusion, I find that the public interest in release outweighs the interest in refusal in relation to the withheld information and I will direct release of the information sought.
41. Finally, the appellant has submitted that additional documents must exist that are relevant to the request. The appellant’s submissions state “Having been granted a significant number of documents regarding the scope/approach of the peer review in the 27-month period from April 2017 to 10 July 2019 (AIE-2019-024), we are apparently expected to believe that no such records were generated in the following 26-month period from 17 July 2019 to 14 September 2021 (AIE-014-2022), or that if such records existed they were not retained. In this period the scope/approach of the review was agreed, the contract was finalised and the entire review process (up to submission of draft review) took place.”
42. The Department was asked to comment on this and responded stating “We provided Mr Halpin with all records, except those we identified as withheld or partly redacted. There are no other records. We have examined all potential sources, and didn’t identify any other records; and certainly did not withhold any. (Many aspects of the review, as often with other projects were advanced through direct consultation or meetings with consultants understanding the review).”
43. In situations where a public authority contends that they do not hold any or any further information relevant to a request, this Office’s approach is to assess whether adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied.
44. The Department have not sent out in sufficient detail the steps taken to identify and locate relevant information for the period from 17 July 2019 to 14 September 2021, and therefore I cannot be satisfied that no further information relevant to the request is held by or for the Department. In the circumstances, I will require the Department to carry out a new internal review process in respect of this part of the request.
45. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby annul the Department`s decision in this case. I direct the Department to release the withheld information in records 10, 13, 14, 20, 29 and 38. The Department should also carry out a new internal review process in respect of any records relevant to the request dating between 17 July 2019 and 14 September 2021.
46. 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