Cinneadh
Mr. F and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-144896-J0F1X7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-144896-J0F1X7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing the request under article 8(a)(iv) and/or 9(1)(b) of the AIE Regulations
20 May 2025
1. On 14 November 2023, the appellant submitted the following request for information with the Department:
“I wish to request under the Access to Information on the Environment Regulations, in electronic format;
“Information which informs DAFM's position that the Forestry Licence Viewer is a valid medium for the publication of forestry licencing decisions;
“To include legal advice requested and received.”
2. According to the Government’s website , the Forestry Licence Viewer (FLV) is a map tool that allows users to discover information about Ireland's forests.
3. On 21 November 2023, the Department issued its decision, refusing to release information under article 8(a)(iv) of the AIE Regulations on the basis that the information requested was protected by legal professional privilege.
4. In response to the appellant’s request for an internal review of that decision on 27 November 2023 in which he noted that no schedule of records had been provided to him, the Department issued its decision on 13 December 2023, affirming the original decision on the same basis.
5. On 22 December 2023, the appellant submitted an appeal to this Office together with preliminary submissions, noting, inter alia, that no adverse effect had been identified by the Department to justify reliance on the exemption, that no schedule of records had been provided to him and expressing uncertainty as to whether any information had actually been identified by the Department that was relevant to his request.
6. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In carrying out this review, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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);
d. the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
e. Decisions of the Irish Courts in the cases ofRight to Know CLG v Commissioner for Environmental Information 2020 IEHC 353 ;Martin v Legal Aid Board [2007 IEHC 76; ];Miley v Flood [2001 IEHC 9; ];Smurfit Paribas Bank Limited v. AAB Export Finance Limited [1990] 1 IR 469); andMcMahon v Irish Aviation Authority [2016 IEHC 221. ]
7. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
8. As I have noted in several recent decisions, where a public authority contends that information sought is legally privileged, article 9(1)(b) is the appropriate exemption to apply. Accordingly, I will first consider whether the refusal of the information sought is justified under that provision. As a review by the Commissioner is de novo, I am satisfied that this is an appropriate manner to deal with the appeal. Following this, I will consider the relevance of article 8(a)(iv).
9. I note receipt by this Office of initial submissions from the Department relating to its refusal to release information to the appellant. During the course of his review, the investigator assigned to this appeal sought further clarifications from the Department on a number of matters, but did not receive a response from the Department. Public authorities are encouraged actively to engage with this Office with a view to expediting the processing of appeals. Engagement with this Office during the course of a review allows issues to be narrowed and contributes to more efficient processing of appeals, including the possibility of settling appeals where appropriate. The lack of response in this appeal created particular issues as it was necessary to identify the roles of particular staff members and whether those staff members are legal professionals employed by the Department. This would have been much easier to deal with had the Department engaged.
10. As has been noted in previous decisions, though it may be the case that there is no strict requirement under the AIE Regulations for public authorities to issue to a requester a schedule identifying records that are relevant to a request, they are encouraged to do so, as the whole basis for the existence of such a list of records is to put the appellant on notice of the records that are being granted, part-granted or refused by a public authority consequent upon a request for information. I note from the Department’s submissions to this Office that“there is no obligation on a public body to issue a schedule with any AIE request”. It also notes that, in respect of other requests from the same appellant, a “schedule was provided for all requests that were granted or part granted. ” Notwithstanding the fact that no obligation exists on public authorities to issue schedules with their decisions, I remain of the view that it is best practice to do so, and public authorities are encouraged to attach them to their first instance decisions if records have been identified as relevant to a request, whether granted or not. The identification of records may assist the requestor in deciding whether or not to seek an internal review or an appeal to this Office. It also gives knowledge to a requester that a search has been undertaken by a public authority and that records relevant to a request in fact exist. I note that in this case there are nine relevant records, and therefore I do not consider that it would have been a particularly onerous task to provide a schedule in this instance.
11. The Department has provided to this Office a schedule of records and copies of each of the scheduled records, which total 18 in number. However, records 1, 2 and 3 on the schedule comprise the first-instance decision letter, the internal review request and the internal review decision letter, respectively, and therefore are not records relevant to the request. Moreover, I note that records 4 and 5 post-date receipt of the appellant’s request and that certain emails in records 9, 11 and 15 also post-date his request and are therefore not within the scope of his request. Upon inspection by the investigator assigned to the appeal, it was discovered that record 6 (an email thread) was found to be wholly contained within record 7, a second email thread, and that the in-scope emails in record 11 and the entirety of records 16 and 17 (all email threads) were found to be wholly contained within record 15 (an email thread), for which reason I consider records 6, 11, 16 and 17 do not need to be considered individually, as the information contained in these records is fully contained in other records on the schedule. The result is that nine records fall to be considered relevant to the request. These nine records consist of email exchanges or threads comprising a sequence of emails, either between Department officers of varying ranks and responsibilities or between Department officers and the appellant. I note that an external third party has been copied into correspondence sent by the appellant to the Department in certain emails in records 8 and 9. However, the appellant has indicated to this Office that he considers the email address of this third party to be out of scope of his request, for which reason it may and should be redacted by the Department from any emails that it is directed to release.
12. Its submissions to this Office refer to consultation between its Forestry Division and its Legal Services unit and state that the“correspondence was not shared with this Appellant in accordance with Article 8(a)(iv)” . They also conveyed the Department’s view that it is in the public’s interest that“a good deliberative process” can take place, which cannot be attained without protection of the “private thinking space of individuals within the department and the legal advice sought by them. ” Its position is that legal advice is typically considered confidential to ensure that public bodies can seek and receive frank and comprehensive advice, which confidentiality“encourages thorough and candid legal discussions, which are essential for informed decision-making.” It is further of the view that public bodies“need the ability to obtain legal advice without the concern that it might be disclosed to the public. This ensures that public bodies can consider all legal implications of their actions and policies, fostering better governance and compliance with the law.”
13. In his appeal and preliminary submissions to this Office, the appellant was of the view that the validity of the exemption to release applied by the Department had not been demonstrated.
14. In further submissions to this Office during the review of the appeal, the appellant, noting the discretionary nature of article 9 of the AIE Regulations, asserted that in applying a discretionary basis for refusal there is a strong onus on a public authority to justify why it chooses to refuse the specific information that has been withheld. He is of the view that a public authority must demonstrate some direct and tangible adverse effect from release of that information, that is specific to that information.
15. In this case, the Department contends that all the records identified by it as relevant to the request constitute confidential communications between Departmental officials and their salaried in-house legal advisers for the purpose of obtaining and/or giving legal advice.
16. The investigator assigned to the appeal has examined each email and email thread with a view to ascertaining the correctness of the Department’s approach and his findings are as follows. It is to be remembered that records 1 – 3 on the schedule of records are not considered to be relevant to the request, that records 4 and 5 are not within scope of the request and that records 6, 11, 16 and 17 are contained within, respectively, record 7 (in the case of record 6) and record 15 (in the case of records 11, 16 and 17), for which reason they are not under consideration in this decision.
a. Record 7 is an email thread containing one email from an in-house Department lawyer to an Assistant Principal Officer (APO) in the Felling Section of the Department’s Forestry Division containing material that I consider to be capable of constituting the giving of legal advice. This email was sent on Monday, 6 November 2023 at 11.29 a.m.
b. Records 8 and 9 are email threads between a number of Departmental officers, none of which can be considered to contain the giving or seeking of legal advice. It is to be noted that email correspondence in either of these records which post-dates the time and date of the appellant’s request, submitted to the Department at 3.35 p.m. on Tuesday, 14 November 2023, is out of scope of the request, though the Department is at liberty to release any part, or all of it should it deem this appropriate.
c. Record 10 is an email thread with three emails capable of constituting the seeking and giving, respectively, of legal advice; one email, sent on Monday, October 2, 2023, at 12:49 p.m., is from the same APO indicated above, to the Department’s Legal Services unit; a follow up email to this request for advice was sent on Monday, October 9, 2023 at 12.05pm, and the third email, sent on Monday, 23 October 2023 at 4.22 p.m., is an email from that Legal Services unit to the APO.
d. Record 12 is an email thread with no correspondence capable of constituting the seeking or giving of legal advice.
e. Record 13 is an email thread with one email, namely the first email on the thread – incidentally the same email identified at paragraph a. above, I consider capable of constituting the giving of legal advice.
f. Records 14, 15 and 18 are email threads containing the same emails as in record 10 and identified above at subparagraph c. that I consider to be capable of constituting the seeking and giving of legal advice.
17. Article 9(1)(b) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries). Article 9(1)(b) seeks to implement Article 4(2)(c) of the AIE Directive, which is in turn based on Article 4(4)(c) of the Aarhus Convention. I note that the Aarhus Guide takes a narrow approach to construction of the relevant provision in the Aarhus Convention, interpreting “the course of justice” as referring to “active proceedings within the courts”. However, I also note that the Aarhus Guide, while a source of helpful guidance, is but a Guide, is not legally binding and is not determinative [2020 IEHC 353, paragraph 20].
18. LPP is a right of a person to refuse to disclose any communications with his or her lawyer made for the purpose of giving or receiving legal advice. It is a common law right with a constitutional foundation, as a dimension of the protection of the administration of justice afforded by Article 34 of the Irish Constitution. The existence of LPP is predicated on there being a public interest requirement for it in the proper conduct of the administration of justice, such that it is “a fundamental condition on which the administration of justice as a whole rests” (seeMartin v Legal Aid Board [2007 IEHC 76 ] andMiley v Flood [2001 IEHC 9 ]). In light of this, I accept that the disclosure of information which would breach LPP would, as a result, adversely affect the course of justice, within the meaning of Article 9(1)(b) of the AIE Regulations.
19. LPP encompasses legal advice privilege and litigation privilege. Legal advice privilege covers a communication between “a person and his lawyer acting for him as a lawyer for the purpose of obtaining from such lawyer legal advice whether at the instigation of the client or the lawyer” (Smurfit Paribas Bank Limited v. AAB Export Finance Limited [1990] 1 IR 469). In light of the guidance set out inMcMahon v Irish Aviation Authority [2016 IEHC 221 ], I understand that for legal advice privilege to apply: (a) there must be a communication between a client and a lawyer (including solicitors, barristers, salaried in-house legal advisers, foreign lawyers and the Attorney General); (b) the communication must have been made in confidence; (c) the communication must have been made during the course of a professional legal relationship; and (d) the communication must have been made for the purposes of the giving or receiving of legal advice.
20. I turn now to the matter of the emails identified above as being capable of constituting the seeking and/or giving of legal advice. These emails are found in records 7, 10, 13, 14, 15 and 18 and I consider each constitutes either the seeking or the giving of legal advice, as the case may be. I am of the view, accordingly, that each falls to be protected from release by article 9(1)(b) as, collectively, they (i) are communications between a Department officer (a client) and a Legal Services unit comprising one or more lawyers; (ii) were made in confidence, as indicated by the Department; (iii) were made in the course of a professional legal relationship, namely in the course of seeking and giving of advice in relation to a Departmental operational matter; and (iv) are clearly communications either seeking the legal advice of the Department’s Legal Services unit or the giving of legal advice by this unit.
21. I have not seen anything to indicate that LPP has been waived by the Department in this instance. I am satisfied that the emails identified are subject to LPP. Accordingly, my view is that release of this information would breach LPP. I acknowledge that article 9(1)(b) does not protect legally privileged information in and of itself. However, I am satisfied that the disclosure of this information would adversely affect the course of justice, as it would undermine the general assurance that correspondence with one’s legal advisor will remain confidential. I consider that this applies regardless of whether there are current or envisaged proceedings in place. LPP does not require related proceedings to be in being. I therefore find that article 9(1)(b) applies to the identified emails contained in records 7, 10, 13, 14, 15 and 18.
22. In respect of records 8, 9 and 12, I do not consider that any of these falls to be protected under article 9(1)(b) as none contains the seeking or the giving of legal advice. These records may be released, subject to the redaction of the details of the external third party in emails contained within records 8 and 9. I note that, except for the emails identified as falling to be protected from release, all other emails contained within records 7, 10, 13, 14, 15 and 18 may be released.
23. I will now proceed to consider whether the interest in withholding the emails that I am satisfied fall under the ambit of article 9(1)(b) is outweighed by the public interest in their disclosure, having regard to the provisions of article 10(3) and 10(4) of the Regulations.
24. The appellant is of the view that the weighing of the public interest test in the Department’s decision letters on his request was generic and inadequate and that any adverse effect asserted by a public authority when relying on an exemption must be weighed in terms of the broader public interest.
25. The Department sought to apply the public interest test in its decision letters to the appellant and in correspondence with this Office. In the letters, it determined that the public interest would not be served by disclosing the information requested. The factors it considered in favour of release of the information are the making available to the public, where practical and allowed under the law, in a transparent manner, information affecting the environment. The factor it considered in favour of withholding the information was the fact of the information being subject to legal professional privilege, a type of claim for confidentiality protected by law and that would be adversely affected, it states, if access to the privileged information were to be provided under the AIE regime. In the Department’s submissions, in applying the public interest test in articles 10(3) and 10(4) of the AIE Regulations, it conveyed its view that it is in the public’s interest that “a good deliberative process ” can take place, which cannot be attained without protection of the“private thinking space of individuals within the department and the legal advice sought by them.” Its position is that legal advice is typically considered confidential to ensure that public bodies can seek and receive frank and comprehensive advice, which confidentiality“encourages thorough and candid legal discussions, which are essential for informed decision-making .” It is further of the view that public bodies “need the ability to obtain legal advice without the concern that it might be disclosed to the public. This ensures that public bodies can consider all legal implications of their actions and policies, fostering better governance and compliance with the law.”
26. In favour of refusal, I note that the case law referred to above makes it clear that the protection of LPP is of fundamental importance to the administration of justice. The courts have emphasised the importance of the principle to facilitating free and frank communication with legal advisers (see, for example, Barr J’s summary of the rationale for protection in McMahon v Irish Aviation Authority [2016 IEHC 221 ] at paragraphs 7-11). In agreement with the Department, I also consider that that the existence of legal professional privilege encourages public authorities to seek legal advice freely and frequently, and that there is a public interest in ensuring that public authorities seek legal advice about their obligations, particularly in relation to environmental matters.
27. In considering the public interest served by disclosure in this case, I consider that there is an important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive, in particular by contributing to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment, as set out in recital 1 to the AIE Directive. There is also a general interest in the openness and transparency of the Government’s decision-making processes in relation to environmental matters. I am also of the view that increased transparency around the internal deliberations of public authorities is an important consideration in applying the public interest test.
28. However, having considered the interest in directing release of the specific seeking and giving of legal advice at issue in this case, I have come to the conclusion that the public interest in disclosure of this particular information is not sufficient to outweigh the fundamental importance of the interest of preserving the Department’s right to LPP in relation to the advice it sought and received from its in-house legal adviser. While I am not at liberty to reveal the contents of the withheld emails, I have considered the legal advice sought and given in this case when coming to this conclusion. Legal professional privilege is a significant feature of our legal system, and the Courts have noted on numerous occasions the strong public interest which exists in protecting it. The proper administration of justice requires that clients can communicate freely with their legal advisors and third-party experts. There is a strong public and private interest in protecting the proper administration of justice and so in protecting LPP.
29. I do note, however, that the matter of release or non-release of information where LPP and article 9(1)(b) may apply to a request for environmental information is case-specific and there may be situations where release of such information is warranted under the public interest balancing test. It is important that public authorities remember that since 2007 it is open to them to release legally privileged information, and to this Office to direct such release following receipt of an appeal, under the public interest balancing test. Each case will be considered by this Office based on its particular factual circumstances. However, in the circumstances of this particular case, I do not find that the public interest in disclosure outweighs the interest served by refusal.
30. I note that a public authority that either seeks or receives confidential legal advice is open to giving consent to its release, or part release, and this is a matter the Department is at liberty to consider in the course of time in the interests of openness and transparency in the furtherance of more effective participation by the public in environmental decision-making and, eventually, a better environment.
31. I note for the sake of completeness that the Department has made no submissions in regard to the possibility of separating out and releasing information in the withheld emails that may not be subject to LPP, in accordance with article 10(5) of the AIE Regulations. However, I am satisfied that the content of the legal advice sought and given cannot be so separated.
32. For completeness, I wish to refer to an alternative ground which the Department could have relied upon in the alternative as a basis to refuse the requested information, namely the exemption in article 9(2)(d) that gives the discretion to public authorities to refuse information “where the request (d) concerns internal communications of public authorities, taking into account the public interest served by disclosure.” I note that many of the email exchanges in the records identified by the Department as relevant to the request are exclusively between Department officers, such that they can be considered to fall within the “internal communications” described in the article. Whilst the Department has made no reference to this provision in either its communications with the appellant or with this Office, I consider it appropriate to comment on it briefly in this decision.
33. Whereas in previous decisions I have referred to the purpose of this provision as being to protect the “private thinking space” of public authorities to allow for free discussion among their officers about matters relating to the formulation of policies, strategies, operational matters and such like in an environment that allows for open exchanges free from the oversight and intrusion of outside parties, it is subject to the public interest served by disclosure of any information that might arise from those discussions and exchanges, particularly where the passage of time acts as a limit to the usefulness to public authorities of its non-disclosure. Having reviewed all of the emails in this case, I consider that apart from the emails that I have found to be protected from disclosure by article 9(1)(b), the remaining emails do not contain any content that would warrant the protection of this exemption. The emails date from 2023 and I am not satisfied that the release of these emails would have any adverse effect on the private thinking space of the Department. Accordingly, I find that the public interest in the release of the emails that are not exempt under article 9(1)(b) outweighs any interest in refusal.
34. For the avoidance of doubt, I consider it appropriate to note that I do not find that any of the emails I have determined to be releasable in this case falls to be considered a record that can be protected from release by article 8(a)(iv), which allows for the withholding of environmental information whose release would adversely affect the proceedings of public authorities. This is because the exemption applies only to the final decision-making processes of public authorities, and I cannot find that any of these emails relates to the final stages of any decision-making process by the Department.
35. Accordingly, I find that the Department’s reliance on article 9(1)(b) of the AIE Regulations in this case is justified in respect of the emails identified above that seek and give legal advice and which are contained in records 7, 10, 13, 14, 15 and 18, as they fall under the protection of the provision. I find that the public interest in disclosure of the information is outweighed by the public interest in its non-release, in accordance with articles 10(3) and 10(4) of the AIE Regulations. In respect of all the other records, and the emails in the above six cited records other than the protected emails, I find that the refusal based on article 9(1)(b) or article 8(a)(iv) is not justified. While article 9(2)(d) applies to the remaining emails, I find that the public interest in disclosure outweighs the interest in refusal, and accordingly, the remaining emails can be released to the appellant.
36. As the Department has indicated that it is in the habit of providing a schedule of records to the appellant in cases where it grants or part-grants records to him, it is encouraged to provide him with a schedule in this case with details of the nine records outlined in this decision that are susceptible of release, either in whole or in part, that is, records 7, 8, 9, 10, 12, 13, 14, 15 and 18. It stands to reason that they be renumbered records 1 to 9.
37. Having carried out a review under article 12(5) of the AIE Regulations, I find that the refusal of the emails that fall under the protection of article 9(1)(b) was justified but I vary the basis for doing so and find that article 9(1)(b) applies to the withheld information. I direct release of all the other emails contained within records 7, 8, 9, 10, 12, 13, 14, 15 and 18.
38. 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