Decision
Right To Know CLG and Bord na Móna
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153652-R3F4T1
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153652-R3F4T1
Published on
Whether BnM was justified in refusing the information sought relating to purchase orders over €20,000 for the period 2019, 2020, 2021, 2022 under article 9(2)(a) of the AIE Regulations
13 June 2025
1. On 30 June 2022 (received 1 July 2022), the appellant submitted a request to BnM seeking access to “a list/database/or spreadsheet of all payments (or purchase orders) of over €20,000 for the period 2019, 2020, 2021, 2022”. He commented that ideally the data should include:
• “Date: As an actual PO date (e.g., 2020-12-04) also referencing the relevant year and quarter
• Name of Supplier(s)
• Description of goods and/or services provided
• PO Amount”
The appellant also asked BnM to note the Public Service Reform Plan of 2011, stating “in which publication of such data is an obligation for all public bodies.”
2. This case relates to a previous appeal to this Office in respect of the request set out above, reference OCE-128538-M9C1X7 . In that decision dated 29 July 2024, I annulled BnM’s decision to refuse access to the information sought relating to all purchase orders over €20,000 in 2019, 2020, 2021, and 2022 contained on an identified spreadsheet on the basis that the information is not “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations. I directed BnM to conduct a new internal review decision-making process in respect of the information sought in accordance with the provisions of the AIE Regulations.
3. On 4 October 2024 and 11 October 2024, BnM wrote to the appellant seeking refinement. In response to both pieces of correspondence, the appellant indicated that he did not wish to refine its request.
4. On 13 November 2024, BnM issued its new internal review decision. It refused the appellant’s request under article 9(2)(a) of the AIE Regulations.
5. Also on 13 November 2024, the appellant submitted an appeal to this Office of BnM’s decision.
6. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between BnM and the appellant as outlined above and to correspondence between my Office and both BnM and the appellant on the matter. 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); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the Aarhus Guide)
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. 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. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
9. I am satisfied that the scope of this review concerns whether BnM was justified in refusing access to the information sought (i.e. the date, name of supplier(s), description of goods/services provided, and amount) relating to all purchase orders over €20,000 for the period 2019, 2020, 2021, and 2022 under article 9(2)(a) of the AIE Regulations.
10. I wish to make a number of preliminary comments. First, during the course of this review both the appellant and BnM were invited to make submissions to this Office. The appellant did not provide submissions. BnM did provide submissions, which essentially reiterated what was set out in BnM’s correspondence with the appellant and in its new internal review decision. In the circumstances, I formed the view that all material issues had already been put to the appellant and it was not necessary for this Office to provide BnM’s submissions to this Office to the appellant.
11. Second, I wish to note that in OCE-128538-M9C1X7 I found that information relating some purchase orders over €20,000 (i.e. those integral to the undertaking of operations of BnM likely to affect the environment) is very likely to be environmental information within the meaning of paragraph (c) of the definition in article 3(1) of the AIE Regulations. That decision annulled BnM’s decision to refuse access to the information sought relating to all purchase orders over €20,000 contained on the identified spreadsheet in that case on the basis that it is not “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations. It directed BnM to carry out a new internal review decision. This appeal arises out of BnM’s new internal review decision. I think it is useful to restate here some of the comments made in the “Conclusion” section of my decision in OCE-128538-M9C1X7 .
54. In conclusion, I find that information sought relating to some of the purchase orders over €20,000 (i.e. those integral to the undertaking of operations of BnM likely to affect the environment) contained on the identified spreadsheet is very likely to be environmental information within the meaning of paragraph (c) of the definition in article 3(1) of the AIE Regulations. In this case, I do not consider it necessary for me to assess whether the information sought also falls within other paragraphs of the definition.
55. BnM identified the spreadsheet at issue as containing the information sought by the appellant related to purchase orders over €20,000 in 2019, 2020, 2021, and 2022. However, there is no evidence to suggest that BnM gave any consideration to the particular information contained on the spreadsheet. This is supported by the fact that the spreadsheet provided to this Office, in addition to containing details of purchase orders over €20,000 also contains details of purchase orders of lower amounts and dated subsequent to the date of the request, and includes information relating to the purchase orders additional to that sought by appellant.
56. A brief examination of the spreadsheet indicates that there are over 350 purchase orders over €20,000 for the period 2019-2022. As stated, I am satisfied that the information sought relating to some of those purchase orders (i.e. those integral to the undertaking of operations of BnM likely to affect the environment), however not all of those purchase orders, is environmental information under the AIE Regulations. Accordingly, at this stage, I consider that the most appropriate course of action to take in this case is to annul BnM’s decision to refuse access to the information sought relating to all purchase orders over €20,000 contained on the identified spreadsheet on the basis that it is not “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations and direct it to undertake a fresh internal review decision-making process.
12. Third, while I note my comment in my previous decision that there were over 350 purchase orders over €20,000 for the period 2019-2022 on the spreadsheet identified in that case, I also wish to note that during the of this appeal BnM provided this Office with a copy of a spreadsheet entitled “Data Extract of all POs greater than 20k” for the years 2019-2022, which contained 3,200 purchase orders on the “Full Extract” sheet of the spreadsheet (i.e. the sheet containing all purchase orders identified by BnM as being over 20k for the years 2019-2022). I am satisfied that this discrepancy has no bearing on my decision in OCE-128538-M9C1X7 (indeed it would only further support my decision to remit the matter BnM for further consideration).
13. Finally, I wish to confirm that it is the spreadsheet provided to this Office during this appeal entitled “Data Extract of all POs greater than 20k” along with a second spreadsheet entitled “Spreadsheet of POs Greater then 20k Environmental Information”, which I have examined and consider to be relevant to this review and BnM’s refusal under article 9(2)(a) of the AIE Regulations. Having examined BnM’s correspondence with the appellant and this Office (discussed in further detail in the Analysis and Findings section below), I am satisfied that the second spreadsheet indicates 988 of the PO’s over 20k for the period 2019-2022, which BnM essentially “scoped out” on the basis that it definitively did not consider them to be “environmental information”, leaving a remaining 2,212 PO’s which it considered required further examination as to whether they each were or were not “environmental information”.
14. As noted, in my decision in OCE-128538-M9C1X7 I found that information relating some purchase orders over €20,000 (i.e. those integral to the undertaking of operations of BnM likely to affect the environment) is very likely to be environmental information within the meaning of paragraph (c) of the definition in article 3(1) of the AIE Regulations. I have looked at the list of 988 purchase orders over 20k that BnM definitively did not consider to be “environmental information”, and I wish to note that I do not agree with BnM’s position in respect of every PO on that list. However, I am satisfied that this does not preclude BnM from seeking to rely on article 9(2)(a) of the AIE Regulations at this stage or my examination of that provision in this appeal. Furthermore, notwithstanding that there could, in my view, be more than the 2,212 PO’s which BnM submitted required further examination as to whether they each were or were not “environmental information”, I will proceed on the basis of the position put forward by BnM in respect of the 2,212 PO’s.
Article 9(2)(a) of the AIE Regulations
15. 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.
16. 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 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.
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” (my emphasis). 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.
18. As indicated in the “Background” section there was correspondence between the parties in respect of reformulation/refinement of the request. On 4 October 2024, BnM wrote to the appellant seeking refinement and including the following comments:
• “The spreadsheet the subject of your request contains 3201 data fields. These fields have been reviewed to remove any data that is not related to the operations of Bord na Móna plc. and its subsidiary/associated companies likely to affect the environment. This amounts to 988 data fields leaving 2,213 data fields which may constitute environmental information, comprising in excess of 500 distinct vendors.
• “The remaining data fields have been classified into the following [12] categories of information: • Plant, Machinery & Equipment • Facilities • Transport • Land Management • Environmental Monitoring & Research • Public & Community Obligations • Inter-Company Payments • Biomass Business • Peat & Horticulture Business • Renewable Energy Business • Waste Management Business • Aquafarm Business”
• “The exercise to date in reviewing the 3,201 data fields, filtering out any which are not related to the operations of Bord na Móna plc. and its subsidiary/associated companies likely to affect the environment and classifying the remaining data fields, has taken a considerable amount of time, approximating in excess of 3 full working days or 22.5 working hours.”
• “In order to make a decision on your request, the remaining 2,213 data fields need to be reviewed to first consider whether they constitute information “on” the measure/activity, which requires a careful analysis of each payment.”
• "Thereafter, each remaining payment must be considered and analysed, exemptions in accordance with Articles 8 and 9 of the AIE Regulations applied and a weighing of the public interest in favour of and against disclosure, in accordance with Articles 10(3) and (4). This will be an extremely laborious and time consuming process, which will also entail analysis of the contracts with the 500 separate vendors to determine whether any contractual confidentiality provisions apply.
• It is conservatively estimated that this process will take at least 157 hours/ almost 21 working days (based on a working day of 7.5 hours)/over 4 full working weeks as follows:
o 5 hours – review of information to consider whether it constitutes information “on” a measure/activity;
o 25 hours – 3 minute review of each individual contractual arrangement with the in excess of 500 vendors;
o 125 hours – 5 minute review of 1,500 data fields to apply exemptions, applying a reduction to the total data fields of 2,213 based on the above review and taking account of the fact that there is a certain degree of repetition amongst some of the payments. Clarifications may also need to be sought in respect of the precise nature and purpose of some of the payments, thereby potentially increasing this further.
o 2 hours – application of public interest test.
• “In such circumstances, answering your request would have a significant adverse effect on a member of the senior leadership team of Bord na Móna plc.’s ability to engage in the day-to-day duties of Company Secretary & General Counsel, including statutory duties under the Companies Act 2014. It would involve Bord na Móna plc. in disproportionate effort and would obstruct or significantly interfere with the normal course of its activities.”
• “Therefore, I would ask you to consider narrowing your request, perhaps by reference to specific categories on information as identified above and/or reducing the timeframe of the request, which spans a period of some 3.5 years. I am happy to offer you any assistance you may require in this regard.”
• “In the absence of such limitation, consideration may have to be given as to whether the request is manifestly unreasonable, having regard to the volume or range of information sought, in accordance with Article 9(2)(a) of the AIE Regulations.”
19. On 7 October 2024, the appellant responded to BnM’s request for refinement, commenting: “It's a requirement for Public Authorities to disclose all POs over 20k so there is no need for BnM to review the records, nor for RTK to restrict the scope of the request.”
20. On 11 October 2024, BnM responded to the appellant’s correspondence dated 7 October 2024 again seeking refinement and including the following comments:
• “Within my letter of 4th October, I set out the significant amount of data captured by your request and the estimated timeframe within which it would take to respond to same, estimated at in excess of 4 full working weeks. As in my view this would constitute a disproportionate effort for Bord na Móna plc. and would obstruct or significantly interfere with the normal course of its activities, I therefore asked you to consider narrowing your request e.g. by reference to specific categories on information, which I identified in my letter or reducing the timeframe of the request.”
• “In your email dated 7th October 2024, you asserted that it was a requirement for public authorities to disclose all POs over €20,000 and therefore there was no need for Bord na Móna plc. to review the records, nor for Right to Know to restrict the scope of the request. This is incorrect. There is no requirement for commercial semi-state entities, such as Bord na Móna plc, to publish purchase orders over €20,0000. Such a requirement only applies to Government Departments or Agencies under Paragraph 9.4 of the Public Service Reform Plan 2011.”
• “Your request was made under the AIE Regulations and in accordance with Article 7(1), a public authority is only required to make available to the applicant any environmental information the subject of the request held by or for it. It was accepted at Paragraph 56 of the decision of the Commissioner for Environmental Information in relation to this request (Case: OCE-128538-M9C1X7), that not all of the purchase orders contained within the spreadsheet constitute environmental information.”
• “I would therefore once again ask you to consider limiting your request, failing which consideration may have to be given as to whether the request is manifestly unreasonable, having regard to the volume or range of information sought, in accordance with Article 9(2)(a) of the AIE Regulations.”
21. On 11 October 2024, the appellant responded, commenting “RTK do not wish to further reduce scope of the request.”
22. Having examined BnM’s correspondence to the appellant and the detail provided therein, it is clear that it set out the estimated breakdown of time and work involved in processing the request, offered help to the appellant to refine the request, and provided examples of how this might be done (e.g. reduction of timeframe, confinement to specific categories). I am satisfied that BnM provided the appellant with reasonable assistance in reformulating/refining the request.
23. In response, the appellant did not provide a narrower timeframe or specify any of the categories identified by BnM to which the request could be confined. While a requester’s refusal to refine a request and reduce the volume or range of information sought may impact whether a request is manifestly unreasonable, and this Office would encourage both parties to liaise constructively, a requester’s unwillingness to engage with a public authority is not, in and of itself, a basis for refusal under article 9(2)(a) of the AIE Regulations.
24. The European Commission’s First Proposal 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).
25. In respect of a request which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, it is clear that a request is not necessarily covered by the “manifestly unreasonable” exception just because it is voluminous or complex. 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. I further 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, and article 5 of the AIE Regulations which seeks to implement that provision. In his Opinion in C-217/97 Commission v Germany at paragraph 30, Advocate General Fennelly stated that the duty in Article 7 of the AIE Directive indicates that individual requests should, in principle, be on matters of detail. Accordingly, the fact that a request is detailed does not mean that it is necessarily unreasonable.
26. 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.
27. This position is supported by recent comments from Advocate General Medina in his opinion on Coillte 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”. 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”. 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.”
28. 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.
29. In its new internal review decision, BnM referred to its previous correspondence and included the following comments:
• “Subsequent to the Commissioner’s decision, a preliminary review was carried out of the relevant spreadsheet, to remove any data that is not related to the operations of Bord na Móna plc. and its subsidiary/associated companies likely to affect the environment, in accordance with the Commissioner’s decision.”
• “The spreadsheet of purchase orders over €20,000 contains a total of 3,200 data fields. Following preliminary review, 988 fields were deemed not to relate to the operations of Bord na Móna plc. and its subsidiary/associated companies likely to affect the environment, leaving 2,212 data fields which may constitute environmental information. (Please note these figures were incorrectly stated as 3201, 989 and 2,213 respectively in my letter dated 4 th October 2024, as I failed to take account of the column headers in the first row of the spreadsheet).”
• “The 2,212 data fields which may constitute environmental information relate to in excess of 500 distinct vendors, across a range of categories, which I outlined in my letter of 4th October 2024. Within that letter, I informed you that the preliminary review process had taken in excess of 3 full working days or 22.5 working hours. I estimated that the process of answering your request would take an additional 157 hours/ almost 21 days/over 4 full working weeks between reviewing each data field to consider whether it constitutes information “on” the measure/activity, a review of individual contractual arrangements with each of the remaining vendors, application of exemptions to the remaining data fields and the application of the public interest test.”
• “In T-2/03 Verein fur Konsumenteninformation v. Commission of the European Communities, the CJEU recognised the right of an institution to ‘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’ (paragraph 102).”
• “The estimated time to answer your request is in excess of 4 weeks. Such a prolonged period of time dealing with a single request will cause a significant and unreasonable interference with my duties as Company Secretary & General Counsel. Within this role, I am a member of the senior leadership team of Bord na Móna plc. and provide comprehensive legal and administrative support and guidance to the Board on matters of strategic importance, regulation and governance. I am also responsible for ensuring Bord na Móna plc. complies with all relevant statutory and regulatory requirements. I play a pivotal role in the governance of Bord na Móna plc. and my diversion from the key duties of my role for a prolonged period to focus exclusively on answering a single AIE request would have a significant adverse effect on Bord na Móna plc, would involve it in disproportionate effort and would obstruct or significantly interfere with the normal course of its activities, particularly in the area of corporate governance.”
• “I am of the view that the administrative burden entailed in dealing with your request is a particularly onerous one and am therefore of the view that the request is manifestly unreasonable having regard to the volume of information sought, pursuant to Article 9(2)(a).”
• “I am of the view that the administrative burden entailed in dealing with your request is a particularly onerous one and am therefore of the view that the request is manifestly unreasonable having regard to the volume of information sought, pursuant to Article 9(2)(a).”
• “It should be noted that this is not a situation as envisaged by Article 10(5) of the AIE Regulations where environmental information which, although held with information to which Article 8 or 9 relates, may be separated from such information. All of the information is contained within a single spreadsheet and each data field needs to be reviewed in order to determine whether it is information “on” the measure in question and whether any of the grounds for exemption under Articles 8 or 9 apply.”
30. In its submissions to this Office, BnM essentially reiterated its position as set out in its correspondence with the appellant and new internal review decision. It included the following comments:
• “Although not a request for environmental information under the AIE Directive, the case of T-2/03 Verein fur Konsumenteninformation v. Commission of the European Communities, is of assistance in determining what is required when processing a request for information. This case involved a request for access to documents under Regulation No 1049/2001, regarding public access to European Parliament, Council and Commission documents. The CJEU found that it was settled law that the examination required for the purposes of processing a request must be specific in nature. It went on to hold at paragraph 72 that, “an institution is obliged to assess in a concrete and individual manner whether exceptions to the right of access apply to each of the documents referred to in a request.”
• “The Court recognised that it was possible for an applicant to make a request for a manifestly unreasonable number of documents and therefore recognised the right of an institution to, ‘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” (paragraph 102).’”
• “It is submitted therefore in order to fulfil its duties under the AIE Regulations a public authority when processing a request is required to carry out a “concrete and individual examination” of the contents of each record. The Commissioner determined in the previous decision in relation to this request Right to Know CLG v. Bord na Móna plc. (OCE-128538- M9C1X7), that the relevant aspect of the definition of environmental information in Article 3 was paragraph (c), namely, “measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements”
• “The Commissioner identified the relevant measure/activity involved as the operations of BnM and its subsidiary/associated companies likely to affect the environment and accepted at paragraph 56 of the decision that not all of the purchase orders contained within the spreadsheet constituted environmental information.”
• “Accordingly, in the first instance in carrying out a fresh internal review, a preliminary review was required to determine which purchase orders involved the operations of BnM and its subsidiary/associated companies likely to affect the environment, with any purchase orders which did not fulfil this criterion therefore not being environmental information. Thereafter, as I identified in the internal review decision, a number of steps are required in order to make a determination on the request as follows:
(1) In accordance with the case law on Article 3(c) of the definition of environmental information (Department for Business, Energy and Industrial Strategy v. Information Commissioner [2017] EWCA (Civ) 844 (“Henney”), adopted in this jurisdiction by Redmond v. Commissioner for Environmental Information [2020] IECA 83 and applied in ESB v. Commissioner for Environmental Information [2024] IEHC 17), an assessment as to whether or not the remaining information is “on the measure”.
(2) Consideration of and application of any relevant exemptions under Articles 8 and 9 of the AIE Regulations.
(3) In respect of any exemptions relied on, the application of the public interest test in accordance with Articles 10(3) and (4).”
• “It is submitted that in order for BnM to fulfil its requirements to carry out a concrete and individual examination of all the data on the spreadsheet, as envisaged by Verein, this process must be followed in respect of each individual purchase order and the various goods descriptions associated with same. In this regard it should be noted that the information in respect of the purchase orders is specific to the individual purchase order and contains a considerable amount of detailed information in the good description field, rather than generic descriptions.”
• In the recent cases of Mr. X. v. Coillte (OCE-130555-Z5P6HO, OCE-129582-B4H2CO & OCE-150125-C4K4K5), the Commissioner stated at paragraph 24 that, “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, it is necessary to 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. The findings of the Court of Justice of the European Union (CJEU) in T-2/03 Verein für Konsumenteninformation v Commission, at paragraphs 101-115, suggest 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. If a public authority wishes to rely on the manifestly unreasonable nature of a request to refuse all or part of that request, it should be in a position to clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.”
• “I explained in detail to the Appellant how I calculated the time it will take to process the internal review, which comprises 157 hours. On any objective assessment, spending a period of 157 hours to answer a single AIE request is in BnM’s submission unreasonable and places an unduly heavy administrative burden on BnM. Further, as outlined dedicating such a prolonged period of time to processing the request would negatively interfere with my ability to perform the other duties of my employment to a significant degree, to the detriment of my employer, BNM. Focusing resources exclusively towards processing the Appellant’s request for such a significant period of time inherently has a detrimental effect, particularly having regard to the criticality of my position to BnM’s operations. It further involves a disproportionate effort and is beyond what could be considered a reasonable period of time to dedicate to processing a single request.”
• “The information in this case is not such as would come within a public authority’s obligations under Article 5(1)(b) of the AIE Regulations to make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible by information technology or by other electronic means. Rather, it is information derived from BnM’s financial database management system, the purpose of which is to record purchase orders raised and paid to suppliers. It is not possible to readily separate out the environmental information from the non-environmental information and even the preliminary review I conducted to filter out information that did not relate to the operations of BnM and its subsidiary/associated companies likely to affect the environment, took a significant number of hours. However, it is not necessarily the case that the data remaining after this review is environmental information as this data needs to be reviewed to determine whether or not it is ”on” the relevant measure/activity. If not, it is not environmental information having regard to the case law in this area. Accordingly, the only way in which the request can be processed is to individually review each data line, which will take a considerable amount of time as already set out above.”
• “With a view to attempting to answer the request and being in a position to furnish information, rather than simply refusing it, BnM engaged with the Appellant, setting out in detail the volume of information involved and the calculation method used to determine how long it would take to process the internal review, asking them to consider narrowing the request. In order to assist the Appellant in this regard BnM broke down the information into 12 categories, in order that the Appellant could understand the type of information held and making a more focused request. However, the Appellant refused to consider narrowing the request in any manner or to acknowledge the immense burden processing the request would place on BnM. Further, nor has the Appellant engaged with the burden that would be imposed on BnM in processing the request nor given any reason for its refusal to narrow its request in making this appeal to the Commissioner.”
• “It is submitted that this is a situation which comes within that envisaged in Verein, where processing the request would require an unreasonable amount of administrative work. Verein recognised that the interest in public access to information needs to be balanced by the burden entailed in processing a request. Ordinarily, the administrative burden placed on a public authority in answering a request under the AIE regulations is outweighed by the public interest in disclosing the environmental information. However, this is not always so and in this case it is submitted that the sheer extent of the administrative burden that would be placed on BnM by processing the internal review is such as to outweigh the public interest in disclosing the environmental information the subject of the request.”
31. As set out above, BnaM provided the appellant with significant detail regarding the timeframe and resources required, and the steps to be taken in processing the request. The appellant declined to reduce the scope of the request, commenting “[i]ts a requirement for Public Authorities to disclose all POs over 20k so there is no need for BnM to review the records, nor for RTK to restrict the scope of the request”. In support of its position, in its original request the appellant referred to the Public Service Reform Plan 2011 . The appellant provided no substantive submissions in response to the amount of time estimated to process the request or the work involved either to BnM or to this Office.
32. While the appellant is seeking specific information in relation to purchase orders, it is seeking that information in respect of all purchase orders over €20,000. 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 is also for 2019, 2020, 2021, and 2022 (to the date of the request). Although I cannot say for certain that had the appellant engaged in refining the request, it would have been made more manageable, the appellant made no effort to reduce the timeframe or limit it to particular categories. In my view, another approach might have been to limit it in respect of particular activity(ies)/operation(s) e.g. a particular windfarm development.
33. BNM has identified 2,212 purchase orders, which it considers require in the first instance further work to determine if they are environmental information, relevant to this appeal and are contained on a spreadsheet, providing the details sought, namely: the PO date, the name of the supplier(s), a description of the goods/services, and the PO amount. I have set out BnM’s position in detail above. BnM estimated that to process this request would involve 157 hours of work and provided a breakdown of those hours of work across various tasks. It indicated that this would be required to be undertaken primarily by the Company Secretary & General Counsel, a senior member of staff. BnM explained the role and duties of the Company Secretary & General Counsel. I consider that the amount of time required of the Company Secretary & General Counsel process the request would result in substantial and unreasonable disruption of their duties and, given their senior position, BnM’s activities generally. I am also satisfied that the work involved in processing this request could not be appropriately delegated to any other staff, in the way that carrying out searches or scheduling documents could be delegated in appropriate cases. In this case, the decision-maker would require to be satisfied that the decision taken was correct in respect of each individual purchase order.
34. 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 the circumstances of this case and having regard to BnM’s explanation of the timeframe and resources required, and the steps to be taken, I accept BnM’s contention that the processing of the request would place an unreasonable burden on BnM, involving disproportionate effort that would result in a significant interference with the other work of the senior staff member involved and, as a result, BnM. The result would be a particularly heavy administrative burden on BnM.
35. As noted above, the exception in article 9(2)(a) is not intended to endorse any failure by public bodies 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 relating to all purchase orders over a specified period. While I note the appellant’s comments that other public authorities publish this type of information routinely, I also accept BnM’s statement that it is not subject to the requirement in the Public Service Reform Plan at 9.4 “Every Purchase Order by a Government Department or Agency for €20,000 or over should be published online.” I do not consider this 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.
36. I am satisfied that BnM’s estimates are reasonable. I have had regard in this case to the volume and range of information at issue, the time estimated and resources required, the steps to be taken in processing the appellant’s request, and the impact of dealing with the request on the other work of the senior staff member involved and, given their senior position, BnM generally. I am mindful that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. On the facts of this appeal, I find that the manifestly unreasonable threshold has been met and article 9(2)(a) of the AIE Regulations is engaged. This finding is not simply due to volume alone, due to the range of factors that I have set out above.
37. 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.
38. 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.
39. 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.
40. 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.
41. The appellant was invited on 14 November 2024 to make submissions on this matter generally, including the application of the public interest test to this appeal. The appellant did not respond. I note the appellant’s comments to BnM that other public authorities publish this type of information routinely. I also recall that BnM has stated that it is not subject to the requirement in the Public Service Reform Plan at 9.4 “Every Purchase Order by a Government Department or Agency for €20,000 or over should be published online.” 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. Furthermore, the fact that other public bodies are required to generally publish purchase orders over €20,000, does not automatically mean that BnM is required to have made a determination on each and every purchase order over €20,000 as to whether it is environmental information or that BnM is required to publish details relating to purchase orders over €20,000 under the AIE Regulations, where they comprise environmental information.
42. BnM in its internal review decision set out its consideration of the public interest served by disclosure, commenting:
• “[i]n favour of disclosure is the public interest in members of the public being able to exercise their rights of access to environmental information under the AIE Regulations, making environmental information publicly available and of members of the public being informed as to spending by public authorities over a certain level on matters arising out of their operations which have an environmental impact.”
43. BnM in its internal review decision set out its consideration of the interest served by refusal, commenting:
• “[a]nswering a request under the AIE Regulations of necessity places an administrative burden on public authorities, which administrative burden is generally outweighed by the public interest in disclosing the environmental information. However, the Regulations through Article 9(2)(a) recognise that there is a limit as to the administrative burden that ought to be placed on public authorities in answering a request and allows a public authority to refuse a request where it is manifestly unreasonable having regard to the volume or range of information sought.”
• “Clearly, there is a public interest in ensuring the proper administration of public authorities and ensuring that the administrative burden placed on public authorities is not unduly onerous or is such as could negatively affect their day-to-day administration or operations. Further, when the decision-maker in this case is as I am, the Company Secretary & General Counsel, there is also a public interest that I am not unduly diverted from my key duties on matters of strategic importance, regulation and governance within Bord na Móna plc, which duties serve to ensure its good corporate governance.”
• “In addition, a factor to also be taken into account in the public interest, is that efforts were made by Bord na Móna plc. to try to reduce the administrative burden entailed in answering your request by seeking for it to be narrowed either temporally or by reference to the categories of information held, which request was refused without reason.”
44. BnM then went on to state in respect of the weighing of the factors in favour of and against release “[t]herefore, when balancing the competing public interests served by disclosure and refusal, I am of the view that the public interest in favour of refusal outweighs that in favour of disclosure.”
45. As noted above, in its submissions to this Office, BnM essentially reiterated its position in its internal review decision.
46. In the circumstances of this case, while I accept that there is a public interest in transparency relating to BnM’s purchase orders over €20,000, that comprise environmental information (i.e. those integral to the undertaking of operations of BnM likely to affect the environment) (see OCE-128538-M9C1X7), I also acknowledge that there is an interest in ensuring that the processing of an AIE Request does not cause an unreasonable interference and/or disruption of the work of a public authority. In the absence of any submissions regarding the public interest test from the appellant, and considering the broad nature of the request, it is not possible for me to consider in any specific way how the release of this information might advance the objectives of the Aarhus Convention, assist in participation in any decision-making process on environmental matters or otherwise lead to a better environment. Having weighed these factors, in the circumstances of this particular case, I am satisfied that the public interest in disclosure does not outweigh the interest served by refusal. Accordingly, I find, that BnM’s decision under article 9(2)(a) of the AIE Regulations was justified.
47. In accordance with article 10(5), I have considered whether BnM could have separated information out information held with information to which article 9(2)(a) applies. I note BnM’s comments in its internal review decision that “It should be noted that this is not a situation as envisaged by Article 10(5) of the AIE Regulations where environmental information which, although held with information to which Article 8 or 9 relates, may be separated from such information. All of the information is contained within a single spreadsheet and each data field needs to be reviewed in order to determine whether it is information “on” the measure in question and whether any of the grounds for exemption under Articles 8 or 9 apply.”
48. Given the nature of the information sought in this case, I am satisfied that BnM was unable to consider article 10(5) of the AIE Regulations without the engagement requested from the appellant. The appellant did not avail of the opportunity to seek assistance in narrowing the request and identifying particular environmental information of interest, despite receiving explanations regarding the type and amount of information involved. While BnM could have limited the matter, for example to a reduced time-period, specific categories, or specific activity(ies)/operation(s), in light of the explanations given by BnM in its internal review decision and appellant’s failure to engage, I am satisfied that it was reasonable for BnM not to have considered the separation of information in this case.
49. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm BnM’s decision under article 9(2)(a) of the AIE Regulations.
50. 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.
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Julie O’Leary
On behalf of Commissioner for Environmental Information