Cinneadh
Mr F and Forestry Appeals Committee
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-153198-F5C7N2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-153198-F5C7N2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the FAC was justified in refusing access to the information sought, pursuant to articles 8 (a) (iv), 9 (1) (b), 9 (2) (c) and 9 (2) (d) of the AIE Regulations.
04 July 2025
1. The appellant on 12 September 2024, requested information in respect of the grounds of appeal for FAC087/2024 in respect of licence CN94436 and he specifically stated that the information be “provided by return or no later than 11am on Monday 16 September” (2024). This request followed previous correspondence and an enquiry from the appellant to the FAC on 12 September 2024.
2. In its original decision dated 16 September 2024 the FAC provided a schedule of records to the appellant and refused the information sought, citing articles 8 (a) (iv), 9 (1) (b), 9 (2) (c) and 9 (2) (d) of the AIE Regulations as justification for its refusal to release the information sought.
3. The appellant sought an internal review of the matter on 16 September 2024 stating that the “the decision maker has failed to demonstrate that any of the exceptions apply.”
4. The FAC delivered its internal review decision on 21 October 2024 and affirmed its original decision. The FAC continued to rely on articles 8 & 9 of the AIE Regulations together with sections 29 and 31 of the Freedom of Information Act 2013, on the basis that the hearing of the appeal had not concluded and that the public interest would not be served by disclosing the information sought.
5. The appellant responded to the FAC on 21 October 2024 enquiring if the FAC were aware that the information requested was publicly available on the Department of Agriculture, Food and the Marine (the Department) website, and asking if the FAC wished to revisit its internal review decision due to this.
6. The appellant appealed to my Office on 29 October 2024.
7. 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 correspondence with the FAC. 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’).
8. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
9. 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.
10. My review in this appeal is concerned with whether the FAC was justified in withholding the information sought by the appellant (1 record) under articles 8 (a) (iv), 9 (1) (b), 9 (2) (c) and 9 (2) (d) of the AIE Regulations.
11. While the AIE Regulations do not explicitly provide that the burden of proof rests with the public authority in relation to justifying a refusal to make information available, the Commissioner considers that the scheme of the Regulations, and of Directive 2003/4/EC upon which the Regulations are based, makes it clear that there is a presumption in favour of release of environmental information.
12. Article 7(2)(a) of the AIE Regulations provides “a public authority shall make a decision on a request and, where appropriate, make the information available to the applicant as soon as possible and, at the latest, but subject to paragraph (b) and sub article (10), not later than one month from the date on which such request is received by the public authority concerned.” Article 7(10) of the AIE Regulations provides a public authority shall, in the performance of its functions under this article, have regard to any timescale specified by the applicant. Article 11(3) of the AIE Regulations provides that an internal review decision “shall be notified to the applicant within one month from receipt of the request for the internal review.”
13. The appellant, in his original request, which was made on 12 September 2024, specified a specific timeframe “no later than 11am on Monday 16 September” (2024), in which he required the information sought to be provided to him.
14. The appellant argues that the FAC failed to have “due regard” to his stated time frame and that the FAC did not refer to his stated time frame. However, I will note that the FAC original decision did issue on 16 September 2024, as requested. The appellant subsequently made an internal review request, and did not specify any particular time scale for this part of the process. I am satisfied that it was reasonable for the FAC not to consider any issue involving article 7(10) of the AIE Regulations based on this internal review request.
15. However, I do note that the internal review decision was not issued within the one-month time period required by the AIE Regulations and contained an apology for missing this deadline. The FAC should take measures to ensure that this does not happen in respect of future AIE requests. It would appear to me that in responding to requests, the FAC ought to have regard to the principles of the Aarhus Convention in enabling public participation to the fullest possible extent. At the very least, the FAC in this case ought to have had regard to the deadline for making an appeal of the licence at issue and endeavoured to provide a decision in advance of that deadline.
16. Finally, while the information relevant to this appeal was published by the Department of Agriculture on 17 September 2024, the role of the Commissioner under the AIE Regulations is to review the internal review decision and to affirm, vary or annul the decision concerned. I consider that in the particular circumstances of this appeal it is appropriate for me to consider the basis for refusal put forward by the FAC in full. Firstly, as I will set out below, the reasons provided by the FAC for the decision to withhold the information sought were not sufficient and did not comply with the duty to give reasons as required by the AIE Regulations. Secondly, if the appellant or another requestor makes a request of this type in future, and that request is also refused, it is unlikely that this Office would be in a position to issue a decision on that refusal before the appeal period for the relevant license had expired. Given that the information sought is relevant to public participation in an environmental decision-making process, this decision may assist the FAC in making decisions on future AIE requests. I should note that decisions of the Commissioner are not considered to create precedent, and facts may vary from case to case, but the general principles set out below should be of assistance when dealing with future requests of a similar nature.
17. The general thrust of the appellants appeal is that the FAC has not “fully and adequately reasoned” its decision and that it “provided limited reasoning” in its decision.
18. In its original decision, the FAC refused to provide access to the information sought under articles 8 & 9 of the AIE Regulations. The FAC advised that the grounds of appeal would become available “on the public file following a decision on the appeal.” The FAC expressly relied on article 8 (a) (iv) stating that the relevant information “forms part of the deliberative process” and that “it is not in the public interest to share such internal communications.” The FAC also cited article 9 as justification for refusing access to the information sought as follows:
“Discretionary grounds for refusal of information,” including where disclosure of the information requested would adversely affect “the course of justice (including criminal inquiries and disciplinary inquiries)” (Article 9 (1)(b)). It also allows the public authority to refuse on the grounds that the material is in draft form and concerns internal communications of public authorities taking into account the public interest served by disclosure (Article 9 (2) (c) and (d)).
19. The FAC provided a schedule of records itemising one relevant record and stated that it weighed the public interest served by disclosure against the interests served by refusal having regard to the provisions of article 10 of the AIE Regulations, determining that the public interest would not be served by disclosing the information.
20. The FAC, in its Internal review decision refused access to the information sought, pursuant to articles 8 (a) (iv), 9 (1) (b), 9 (2) (c) and 9 (2) (d) of the AIE Regulations and Sections 29 and 31 of the Freedom of Information Act 2014.
21. In its internal review decision, the FAC stated as follows;
I have examined the records relevant to this request. I affirm the decision of the original decision maker to refuse access to the information requested under Article(s) 8 and 9 of the AIE Regulations and Sections 29 and 31 of the Freedom of Information Act 2014 on the basis that the reasons for refusal outweigh the public interest.
The Forestry Appeals Committee has not completed its statutory functions (considerations) on the grounds of the appeal. Article 9 which sets out the “Discretionary grounds for refusal of information,” includes (Article 9(1) (b)). It also allows the public authority to refuse on the grounds that the material may be in the course of completion, a matter for the Forestry Appeals Committee in its statutory role and in this instance concerns internal communications of public authorities taking into account the public interest served by the disclosure (Article 9(2) (c) and (d)). Currently the hearing of the appeal is not scheduled as we are waiting on the Statement of Fact from the Department of Agriculture, Food and the Marine. Once the statement has been received and the file has been heard and a decision made, following which the information you seek will be available on the public file.
In accordance with Article 10(3) and 10(4) I have weighed the public interest served by disclosure against the interest served by refusal of your request for item 1. I have had regard to the provisions of Article 10 of the Regulations, as a decision to refuse to disclose information under Articles 8 and 9 must not be taken in isolation from the relevant provisions in Article 10. In line with Article 10(3), my deliberations have included weighing the public interest served by disclosure against the interest served by refusal. I have determined that the public interest would not be served by disclosing the information you request.
22. Article 8(a)(iv) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts).
23. 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.
24. 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).
25. 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 of the final stage of decision-making being undermined must be reasonably foreseeable and not purely hypothetical.
26. The FAC’s original decision stated that the requested information forms part of the “deliberative process” and made no other reference to the requirements of article 8(a)(iv). At internal review stage, reference was made to the fact that the hearing of the appeal had not yet been scheduled. The decision failed to specify the precise “proceedings” involved in the matter and no reference was made to “confidentiality”, or how such confidentiality would be adversely affected by disclosure. Whilst one might infer the law protecting the relevant confidentiality, I would encourage public authorities to clearly set out the precise law it wishes to rely on for the benefit of an appellant. The FAC also did not set out how the information sought is part of the final decision-making stage of the relevant proceedings.
27. In addition, while the FAC referred to Section 29 and 31 of the Freedom of Information Act 2014, it provided no explanation regarding why it considered those provisions apply to the information at issue nor did it give any detail in respect of the public interest considerations required (section 29(1)(b)) or the elements of the provision set out at section 29(2) that serve to dis-apply section 29(1)(a). The FAC also failed to identify any “adverse effect” that would arise as a result of the disclosure of the specific information at issue. It was not clear the basis on which it was seeking to rely on these articles or why it considered that either section applied in this matter.
28. As set out above, article 8(a)(iv) only applies to the “final decision-making stage” of the relevant proceedings, and not the entire process leading up to that decision. I cannot see how the disclosure of the grounds of appeal would have any adverse effect on the final decision-making stage of the FAC appeal. The CJEU case of Saint Gobain, which I have referred to above, provides useful guidance in assessing whether the protections of article 8(a)(iv) extend to the type of information requested in this appeal. The Advocate General at paragraph 56 of his opinion adopted the approach taken by the German courts after the CJEU’s ruling in Flachglas, namely that information forming the factual basis for decisions taken should be protected only if it allows clear conclusions to be drawn regarding the deliberation process. I am not satisfied that the release of the information requested would allow for such clear conclusions to be drawn regarding the deliberation process of the FAC, and therefore I cannot find that article 8(a)(iv) applies.
29. Article 9(1)(b) of the AIE Regulations provides as follows:
“(1) A public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect—
(b) the course of justice (including criminal inquiries and disciplinary inquiry)”
30. It is evident from the wording of article 9(1)(b) that there must be some adverse effect on the course of justice, in order for the exception to apply. Accordingly, when relying on this article, it is imperative that the public authority sets out the reasons why it considers that the disclosure of the information at issue could specifically and actually undermine “the course of justice”, as ruled by the CJEU at paragraph 69 of Land Baden-Wurttemberg v DR, Case C-619/19. Additionally, it is important to ensure that the risk of“the course of justice” being undermined must be reasonably foreseeable and not purely hypothetical.
31. While the FAC cited article 9(1)(b) of the AIE Regulations, it failed to provide any reasoning as to how the release of the information could specifically and actually undermine the course of justice, as is required to avail of this exemption. The mere reference to an exemption is not sufficient to ground a refusal to provide information pursuant to the AIE Regulations.
32. Having examined the relevant information, I cannot see how the release of the information would adversely affect the FAC appeal process or otherwise affect the course of justice in any way, and I therefore find that article 9(1)(b) does not apply to the information sought.
33. Article 9(2)(c) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns material in the course of completion, or unfinished documents or data. This provision transposes Article 4(1)(d) of the AIE Directive, which in turn is based on part of Article 4(3)(c) of the Aarhus Convention.
34. As stated above, I am satisfied that article 9(2)(c) of the AIE Regulations can be relied upon in circumstances both where the information itself is, for example, “material in the course of completion” or “unfinished data”, and where the information concerns “material in the course of completion” or “unfinished data”.
35. I consider that “material in the course of completion” refers to the process of preparing “material” that is itself being actively worked on (just because something is labelled “draft” does not necessarily mean it is “in the course of completion”). However, while information no longer being actively worked on may not itself be “material in the course of completion” it may concern material in the course of completion. In assessing whether the information at issue concerns “material in the course of completion”, I am of the view that it is necessary to identify material that is actively being worked upon, be able to explain why, and how, the information at issue concerns that material, and consider whether the information at issue is a separate and independent piece of work to that material – if the information at issue is a separate and independent piece of work, the exception will not be applicable. I also consider that the material that is actively being worked upon must have a physical existence (it cannot be something that does not have a physical existence (e.g. a project, exercise or process, although it can be part of same). For example, an overarching project, even if it is not complete, cannot be considered to be “material in the course of completion”, however individual documents that form part of the project might be if they have not yet been completed.
36. I consider that “unfinished documents” are documents that a public authority is still working on (just because something is labelled “draft” does not necessarily mean it is “unfinished”) and “unfinished data” is data that a public authority is still collecting at the time of the decision. Again, in assessing whether the information at issue concerns “unfinished documents” or “unfinished data”, I am of the view that it is necessary to identify the document being worked on / data that is actively being collected, be able to explain why, and how, the information at issue concerns that document/data, and consider whether the information at issue is a separate and independent piece of work to that document/data – if the information at issue is a separate and independent piece of work, the exception will not be applicable. Whether documents/data can be considered to be unfinished depends on the circumstances. I consider that data which is part of routine monitoring or collected raw data being used as part of ongoing research or policy development, even if it has not been analysed or validated, may not generally be regarded as part of ongoing unfinished data collection.
37. In this appeal, the FAC referred to article 9 (2) (c) and “material in the course of completion.” The FAC stated that the “hearing of the appeal is not scheduled” and it was waiting on the “Statement of Fact” from the Department at which stage, the “file” would be heard and a decision made, and the information would then become publicly available.
38. The FAC did not suggest at any point that the grounds of appeal itself were material in the course of completion or an unfinished document. It is clear that this exemption concerns documents, and not processes, and therefore whilst the appeal may not have been heard at the date of the request (or during the intervening period) this does not provide a basis to apply article 9(2)(c) to the information sought. Having examined the information sought, I am satisfied neither the request, not the information sought concern material in the course of completion or unfinished documents or data and therefore article 9(2)(c) does not apply.
39. Article 9(2)(d) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure. This provision transposes Article 4(1)(e) of the AIE Directive, which in turn is based on part of Article 4(3)(c) of the Aarhus Convention.
40. When relying on article 9(2)(d), the public authority should show that the information at issue is an “internal communication” such that it falls within the scope of the exception. It is then for the public authority to weigh the public interest served by disclosure against the interest served by the refusal, as is required by the exception itself and articles 10(3) and (4) of the AIE Regulations.
41. The term “internal communications” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, the decision of the CJEU in Land Baden-Württemberg provides some guidance on the internal communications exception. The Court stated that the exemption can be interpreted as “…must be interpreted as meaning that the term ‘internal communications’ covers all information which circulates within a public authority and which, on the date of the request for access, has not left that authority’s internal sphere – as the case may be, after being received by that authority, provided that it was not or should not have been made available to the public before it was so received”.
42. The appellant stated in his submission to this office, that this information could not be considered internal communications within the meaning of the AIE regulations in circumstances where “it was provided by a third party” and that “it was dubious as to whether it could even be considered to “concern” internal communications as the FAC had not convened a hearing of the appeal at the time of my request. At the time of the request there were no internal communications regarding the information.”
43. The original decision of the FAC stated that “it is not in the public interest to share such internal communications” and referred to the public interest test but did not provide any detail on the factors considered when weighing the public interest in the release of the information sought against the interest in refusal. No further detail was provided in the internal review decision.
44. It is not clear to me whether the grounds of appeal had left the FAC’s “internal sphere” as of the date of the request. It is clear that very shortly afterwards, the grounds of appeal were provided to the Department and subsequently published on its Forestry License Viewer on 17 September 2024. I therefore consider that even if the information sought had the status of “internal communication” as of the date of the request, it had lost that status by the date of the internal review decision. Due to this, there was no basis for article 9(2)(d) to apply at that stage.
45. Even if article 9(2)(d) did apply to the information sought, the FAC did not adequately carry out the public interest test as required by article 10(3). No detail was provided in the decision as to the factors considered either in favour of release or in favour of refusal of the information sought.
46. Articles 8 and 9 of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(1) of the AIE Regulations, provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in articles 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
47. As the FAC ought to be aware, articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stage, consistent with Article 4(5) of the AIE Directive. 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 articles 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). The Court held that in an absence of any indicator in the review decision that the balancing exercise mandated by articles 10(3) and (4) had been carried out, suggested that no balancing exercise had, in fact, been undertaken and that the same was true in respect of the mandatory obligation set out in article 10(5) of the AIE Regulations (paragraph 87).
48. In its internal review decision letter, whilst the FAC referred to 8(a)(iv), 9 (1) (b), 9 (2) (c) and 9 (2) (d) of the AIE Regulations, no meaningful engagement or reference to the elements of each article was set out. It is apparent, that the FAC did not provide adequate reasons for refusal of the information/record at issue in this particular case. Having regard to all of the above, I cannot find the FAC decision to refuse access to the information sought under articles 8 & 9 of the AIE Regulations is justified in this matter.
49. It is also noted that the appellant advised the FAC that the Department had published the relevant record, namely the “grounds of appeal” document. The appellant invited the FAC to reviews its decision, however it appears that a response to this invitation was not forthcoming. As the relevant record in this matter has been made publicly available, I do not see how the interest served by refusal could outweigh the public interest served by disclosure pursuant to article 10 (3) of the AIE Regulations. The FAC should be mindful of the limited resources available to this Office and Public Authorities are encouraged to engage with appellants to avoid unnecessary appeals to this Office.
50. It is clear that the FAC did not provide adequate reasons for refusal of the record at issue in this matter. Having regard to all of the above, I cannot find the FAC decision to refuse access to the information sought under articles 8 &9 of the AIE Regulations is justified.
51. Having carried out a review under article 12(5) of the AIE Regulations, I annul the decision of FAC. As the information sought is not available on the Forestry License Viewer, no further action is necessary.
52. 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