Cinneadh
Protect East Meath Limited and Department of Education
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-142915-J9L3Y2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-142915-J9L3Y2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the information requested is environmental information within the meaning of article 3(1) of the AIE Regulations
29 May 2025
1. On 28 August 2023, the appellant made the following request to the Department:
“Dear AIE Officer,
Protect East Meath refers to a contract of sale between Minister for Education and Shannon Homes for the purchase of 11 acres in Drogheda. The contract contains the following schedule:
DOCUMENTS SCHEDULE
1. Copy Folio and Filed Plan Folio MH44663F County Meath
2. Copy Planning Permission Reg. Ref. No. LB189620
3. Copy of Certificate of Incorporation Shannon Homes (Dundalk) Limited
4. Copy of Memorandum of Articles of Association Shannon Homes (Dundalk) Limited
5. Land registry Complaint Map
6. Drawing No. 170092-DBFL-0000-SP-SK-C-1901
7. Outline Construction Programme
8. Draft Collated Warranty
9. Requisitions on Title (to follow)
Please provide copies of all these documents.
Please also provide (a) the finalised requisitions on title and responses (b) the executed collateral warranty”
2. In its original decision of 6 September 2023, the Department refused the appellant’s request on the basis that it did not hold any information, within the scope of the request, capable of being defined as environmental information under article 3 (1) of the AIE Regulations.
3. On the same day, the appellant requested an internal review of that decision.
4. The Department issued an internal review decision on 3 October 2023 affirming the original decision on the basis that no grounds had been found upon which to reverse the decision of the original decision-maker.
5. The appellant appealed to my Office on 16 October 2023.
6. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and 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); and
d. 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 Department’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Department to make available environmental information to the appellant.
9. The scope of this review is to determine whether the Department was justified in refusing access to the requested material on the grounds that the requested information does not constitute environmental information within the meaning of article 3(1) of the AIE Regulations and, if the information sought is found to be environmental information, whether the refusal of the information sought is justified under articles 8 or 9 of the AIE Regulations.
10. The appellant provided submissions to this Office on 23 October 2023. It stated that the request was made as a follow up to a previous request relating to the purchase of a site by the Department for the construction of a new school. Following this request, the Department released the contract for sale for the purchase of the site. The appellant claimed that, as the Department released this contract, it accepted that it is environmental information and it cannot now assert that the same type of information is not within scope of the AIE Regulations.
11. The appellant stated that the request concerned two categories of environmental information; information on land and information on measures and activities affecting or likely to affect land. It stated that the measures in question include the contract to buy the land since this results in the land being developed, the planning permission since this permitted the development, the upgrading of the road capacity, thereby increasing traffic and the construction and operation of the school which affects the environment through interventions on the land and the transport of children to the school. The information sought is about, relates to or concerns these measures and activities and is, therefore, environmental information.
12. Furthermore, it said that the request fits within the objectives of the Aarhus Convention and the AIE Directive as it helps the public understand decision-making affecting the environment; namely the selection of the location for schools. It also said that the request “enhances transparency in a transaction which a previous AIE has indicated poor value for money and where the state has paid for works which it could have procured for no cost by enforcing its contract with Shannon Homes. This facilitates the public in an exchange of views about this transaction of development land.”
13. It also stated that the location of the school has implications for wider development in the surrounding area and, therefore, the greatest transparency possible should apply to the decision-making process and to transactions which affect the environment since there are considerations “which could be seen as adding weight towards Shannon Homes’ housing and commercial development plans notwithstanding public concerns about environmental matters.”
14. Submissions were requested from the Department regarding its position on this appeal on 10 March 2025. The Department’s attention was drawn to the Commissioner’s decision in Protect East Meath and Taillte Éireann [OCE-142307-M4L4P5] in which the Commissioner found that the purchase of land by the Department of Education for the purpose of building a school can clearly be considered a “measure”, within the meaning of paragraph (c) of article 3(1) of the AIE Regulations and that the information sought in that case was found to be “on” that measure such that it was “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations. The Department was also asked, in the event that the Commissioner found that the information sought was environmental information, to provide submissions as to whether any of the exemptions contained in articles 8 or 9 of the AIE Regulations would apply.
15. The Department stated, in its submissions dated 8 April 2025, that it had already provided substantial information to the appellant regarding the transaction. In relation to the release of the contract for sale to the appellant, the contract had actually been released in error. The request for the contract had been refused under articles 8 (a) and 9 of the AIE Regulations.
16. The Department asserted that the “the commercial aspects of land transactions between public bodies and private entities, including valuation reports, contract documents and related schedules are not environmental in nature.”
17. It stated that the potential environmental impact associated with any change in use or development is assessed by the local authority through the “Statutory Development plan process” and, subsequently, during the planning application process.
18. It also said that no environmental measures would be implemented as a result of the change of ownership of the land. Moreover, it said that schools primarily serve the local community and do not have a direct environmental impact.
19. The Department also stated that the information currently sought by the appellant is commercially sensitive and, therefore, should not be disclosed.
20. Environmental information is defined in article 3(1) of the Regulations and article 2(1) of the Directive as “any information in written, visual, aural, electronic or any other material form on:
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements of the environment referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements;
(d) reports on the implementation of environmental legislation;
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a), or, through those elements, by any of the matters referred to in (b) and (c).”
21. The AIE Regulations transpose the AIE Directive at national level. The AIE Directive was adopted to give effect to the first pillar of the Aarhus Convention in order to increase public access to environmental information and enable an informed public to participate more effectively in environmental decision-making. It replaced Council Directive 90/313/EC, the previous AIE Directive.
22. According to national and EU case, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB No. 1 at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU. However, the right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the definition. Under Article 3(1)(c), the connection between the information and the environment is found in the measure in question and not necessarily in the information itself.
23. Paragraph (c) requires the identification of a relevant measure or activity, which the information sought is “on”. Information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB No. 1 at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term “measure” serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity” (Mecklenburg at paragraph 20), and a similarly expansive approach should be taken to the term “activity” (RTÉ at paragraph 19).
24. In summary, the appellant is seeking nine documents contained in the schedule to a contract for sale for the purchase of 11 acres of land described Folio MH44663F County Meath, as well as the requisitions on title, the responses and the executed collateral warranty. As per my previous decision inProtect East Meath and Taillte Éireann [OCE-142307-M4L4P5], I find that this purchase of land by the Department of Education for the purpose of building a school can clearly be considered a “measure”, within the meaning of paragraph (c) of article 3(1) of the AIE Regulations. The purpose of this transaction is known to be for a proposed school development on the land concerned. On 23 February 2024, the Department of Education published its intention to apply for planning permission for a new 1,000 pupil school on the site at Mill Road, Colpe West, County Meath. (See File 24/60133 for further details.)
25. I would caution against an excessively legalistic approach to the identification of the “correct ” measure. In my view, the Irish and European courts have not indicated that there is one clear and precise answer to the identification of a measure. Rather, the courts have indicated that the focus should be on whether the measure affects or is likely to affect the environment.
26. Having established that the purchase of the relevant land by the Department constitutes a measure, I will now consider whether the purchase affects, is likely to affect or is designed to protect the environment in accordance with the elements contained in article 3 (1) (a), (b) and (c) of the AIE Regulations.
27. A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. Collins J, delivering judgment on behalf of the Court of Appeal in Redmond, noted that “something more than a remote or theoretical possibility is required (because that would sweep too widely and could result in the ‘general and unlimited right of access’ that Glawischnig indicates the AIE Directive was not intended to provide) but it is not necessary to establish the probability of a relevant environmental impact (because that would, in my opinion, sweep too narrowly and risk undermining the fundamental objectives of the AIE Directive)” (paragraph 63).
28. I consider that the purchase of land for a school development will self-evidently have an environmental impact. The development of the land will inevitably affect the elements of the environment. This is clear from Redmond where the Court stated “the sale of land can, in principle, constitute such a measure and that it will do so where, for instance, there is evidence that the purchaser intends to develop the land (by, for instance, building houses on what was previously a playing field)” (paragraph 66).This is also reflected in the fact that, as noted by the Department, an environmental impact assessment was necessarily carried out prior to planning permission being granted, indicating that the development was, at the very minimum, capable of impacting the environment.
29. Even if it were not the case that the Department planned to develop the land, the purchase of the land could still be considered a measure for the purposes of article 3 (1) of the AIE Regulations. In Redmond, the Court stated that it would appear to be an error “to conflate environmental effect and development. While development (in the sense in which that term is generally used in planning and environmental law) will generally affect the environment, a measure may affect the environment absent any such development.” (paragraph 69).
30. In light of all the foregoing, I find that the purchase of the land described in Folio MH44663F County Meath by the Department for the purpose of building a school is a measure likely to affect the elements of the environment contained in article 3 (1) (a) and (b) of the AIE Regulations.
31. Having regard to the wording of article 3 (1) (c) of the Regulations, it now falls to be considered whether the information sought is information “on” a relevant measure. As “any information … on” a measure or activity affecting or likely to affect the environment isprima facie environmental information, the information at issue does not, in itself, have to affect or be likely to affect the environment in order to constitute information “on” such a measure (Redmond at paragraphs 57 and 59). As the High Court outlined in its decision in the ESB No. 1 case, relying on the English Court of Appeal decision in Henney, that information is “on” a measure if it is about, relates to or concerns the measure (see paragraph 41 of ESB No. 1, referring to paragraph 37 in Henney). The question as to whether information is “on” a measure is fact and context specific. This question is to be considered by reference to the Directive and Aarhus Convention. According to Henney, the recitals to both the Directive and Convention “give an indication of how the very broad language of the text of the provisions may have to be assessed and provide a framework for determining the question of whether in a particular case information can properly be described as "on" a given measure” (at paragraph 48).
32. Importantly, while Henney uses the terms “critical”, “fundamental” or “integral”, it did so to describe the relationship between the communications and data component of the smart meter plan and the overall smart meter plan. There was a dispute in that case between the parties as to what was the correct measure. The Court did not use these terms to say that for information to be on a measure it had to be critical, fundamental or integral to that measure.
33. As the High Court outlined in its decision in the ESB No. 1 case, relying on the English Court of Appeal decision in Henney, that information is “on” a measure if it is about, relates to or concerns the measure (see paragraph 41 of ESB No. 1, referring to paragraph 37 in Henney). I am of the view that the documents sought relate to, or, concern the measure. The documents are contained in the schedule to the contract for sale which effected the purchase of this land; they, therefore, pertain to the purchase of the land and provide further information on matters relevant to the land transaction. It is clear from the case law that the documents do not have to concern the environment directly in order to constitute information on the relevant measure.
34. The question of how the documents may relate to the aims and objectives of the Aarhus convention is relevant to whether they constitute information “on” the measure. I note the purposive test as articulated in Henney. The Court of Appeal in Redmond noted that the Court of Appeal of England and Wales in Henney suggests that, in determining whether information is “on” the relevant measure or activity, it may be relevant to consider the purpose of the information such as why it was produced, how important it is to that purpose, how it is to be used, and whether access to it advances the purposes of the Aarhus Convention and AIE Directive (see Redmond at paragraph 99). Information that does not advance the purposes of the Aarhus Convention and AIE Directive may not be “on” the relevant measure or activity (Redmond at paragraph 99). The test set out in Henney was also explicitly endorsed by the High Court in the RTÉ case (see paragraph 52) and is also referenced in the recent ESB No. 2 judgment.
35. Further, as referenced in the Aarhus Implementation Guide, Article 7 of the Convention covers “public participation in the development of plans, programmes and policies relating to the environment, which include sectoral or land-use plans, environmental action plans, and environmental policies at all levels”. Recital 1 of the AIE Directive also makes clear, that the purpose of the AIE regime is to promote “increased public access to environmental information and the dissemination of such information” in order to “contribute 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.”
36. In this case, the purpose of the information and the purpose for which it was produced was to provide information relevant to the purchase of the land and to comply with legal requirements regarding the sale of this specific site. The information includes a precise description of the lands being sold, a land registry map, planning permission detailing permitted construction on the land and conditions, if any, attaching thereto, drawings, outline construction plans, requisitions on title and responses, information on the entity selling the land and further details on any agreements between the parties relating to the construction. This is information on the purchase of the land by the Department, which I have found to be a measure affecting the environment within the meaning of article 3(1)(c)
37. The information sought advances the objectives of the Aarhus Convention as it provides relevant details and specifics in relation to the site to be developed and the plans for construction on the land. Release of the information would facilitate more effective participation by the public in environmental decision-making as it would provide detail and transparency in relation to a project affecting the environment. Being in possession of detailed and specific information would place members of the public in a better position to evaluate the decision and to hold informed views on the impact of the project.
38. From all of the foregoing, it is my view that the information sought is “on” the relevant measure and is environmental information within the meaning of article 3 (1) of the AIE Regulations.
39. As I have found that the information sought is environmental information, I will go on to consider whether the refusal of the information sought is justified under articles 8 or 9 of the AIE Regulations.
40. As referred to, the Department asserts that the records sought are commercially sensitive and should not be disclosed. It also stated that it had previously refused the request to disclose the contract for sale of the land under articles 8 (a) and 9 of the AIE Regulations “concerning the confidentiality of public authority proceedings and commercial or industrial confidentiality”.
41. The Department has not expressly set out what particular provisions of article 8 (a) and article 9 it is invoking. Article 8 (a)(iv) refers, however, to “the confidentiality of the proceedings of public authorities.” Article 9 (1)(c) refers to “commercial or industrial confidentiality”. Given that the Department referred to these concepts in its submissions, I am proceeding on the basis that it is arguing that the exemptions under articles 8 (a)(iv) and article 9 (1)(c) apply to the information sought by the appellant in the present case.
42. Article 8 (a)(iv) permits refusal to disclose information where to do so would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law.
43. When relying on article 8(a)(iv) of the AIE Regulations a public authority must identify the proceedings to which the information at issue relates and show that those proceedings have an element of confidentiality, that the confidentiality of those proceedings is protected by law, and that the disclosure of the information at issue would adversely affect that confidentiality. The public authority must demonstrate a clear link between disclosure of the specific information that it has withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
44. The term “proceedings” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, the CJEU in C-204/09 Flachglas Torgau GmBH v Bundesrepublik Deutschland set out that the concept of proceedings “refers to the final stages of the decision-making process of public authorities” (paragraph 63). A similar conclusion was reached by the CJEU in C-60/15 Saint-Gobain Glass Deutschland v Commission. Although that case dealt with Regulations 1049/2001 and 1367/2006 rather than the AIE Directive, it considered the provisions of the Aarhus Convention, upon which both the AIE Directive and the AIE Regulations are based. The Court noted “…Article 4(4)(a) of the Aarhus Convention provides that a request for environmental information may be refused where disclosure of that information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law, and not the entire administrative procedure at the end of which those authorities hold their proceedings” (paragraph 81). Also, Advocate General Szpunar in that case indicated that “the concept of ‘proceedings’ must be understood as covering only the deliberation stage of decision-making procedures” (see paragraph 51 of the Opinion).
45. When relying on article 8 (a)(iv), a public authority must establish all the factual elements set out in the article and demonstrate that the disclosure of the information at issue would adversely affect the interests concerned. In the present case, the Department has not clearly identified the proceedings to which the information at issue is said to relate, it has not shown that those proceedings have an element of confidentiality, that the confidentiality of those proceedings is protected by law and that the disclosure of the information at issue would adversely affect that confidentiality.
46. Furthermore, I cannot find that the requested information relates to the “final stages of a decision-making process” as required by article 8(a)(iv). This information sought forms part of the contract for sale of the relevant lands, and, therefore, the decision to purchase the lands in question was already made at this point. The information sought does not relate to the final decision to purchase these lands, and therefore, article 8(a)(iv) cannot apply.
47. 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 Community law to protect a legitimate economic interest.
48. A number of elements are required in order to engage the exemption provided for in this article:
a. The information must be commercial or industrial in nature.
b. The confidentiality of the information must be provided for by law.
c. The confidentiality is protecting a legitimate economic interest.
d. The confidentiality would be adversely affected by disclosure.
49. In order to show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interest that the confidentiality is designed to protect. Accordingly, when relying on article 9(1)(c), the Department must set out the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the economic interest identified. The decision of the CJEU inLand Baden-Württenberg 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”. If there would be no adverse effect on the economic interest identified, then article 9(1)(c) cannot be relied upon, as it would not be shown that the confidentiality is protecting that economic interest.
50. As referred to, the Department submitted that the records are commercially sensitive and, as such, should not be disclosed. Apart from this brief reference to commercial sensitivity, it has not provided substantive reasons for the application of article 9(1)(c) to the refusal of the records sought by the appellant, despite having had the opportunity to do so. The Department has not identified the legitimate economic interest at play, how any confidentiality might be provided for in national or Community law or any adverse effect which might result from the disclosure of the information. Each of the conditions set out above must be satisfied before article 9(1)(c) can be said to apply. Based on the information before me, the Department have not adequately considered this exception and I find that the Department’s reliance on this provision in refusing access to the appellant’s request is not justified. The Department should note that mere reference to a statutory provision is not sufficient to establish that information is exempt under the AIE Regulations. I have considered the content of the information sought, and I do not see how any confidentiality of this information is protecting the legitimate economic interests of the Department or any other party. This is particularly the case when the purchase price of the property is known, and the contract for sale has already been released (regardless of whether the Department intended to release the contract). I do not see how there could be any adverse effect on the legitimate economic interests of the Department or any other party from the release of the information sought.
51. The duty to give reasons, which arises not only by virtue of the AIE Regulations and AIE Directive, is recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed, whether at internal review stage or through an appeal to this Office.
52. In this regard, the High Court in Right to Know v An Taoiseach [2018] IEHC 372 noted, in particular, that “in light of the adjudicatory processes in which a decision-maker is required to engage pursuant to [a]rticles 10(3), (4) and (5) and 11(4) of the AIE Regulations, the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal” (paragraph 106)
53. In all of the circumstances, noting that adequate reasons should be given if seeking to rely on articles 8 and/or 9 of the AIE Regulations and that article 10 requires a balancing test to be carried out in respect of any of the exemptions provided for under articles 8 and/or 9, I consider that the Department has not established grounds to rely on articles 8 and/or 9 of the AIE Regulations.
54. In conclusion, I find that the records falling within the scope of the appellant’s request come with the definition of environmental information as defined by article 3 (1) of the AIE Regulations. Furthermore, I find that the Department has not established grounds for relying on the exemptions provided for under articles 8 and/or 9 of the AIE Regulations.
55. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision and direct release of the records sought by the appellant.
56. 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