Cinneadh
Ms. W & Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-153703-L3H1P1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-153703-L3H1P1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department had undertaken adequate searches for the information sought and, whether it was justified in applying articles 8(i)(a), 9(1)(c) and 9(2)(c) to redacted information released to the appellant.
4 March 2026
1. On 6 September 2024 the appellant made an AIE request of the Department for the following information:
“1. Please provide, by email, information on the dates of all meetings (including both face-to-face and virtual meetings) held in July 2024 between DAFM and Coillte. Information to include, inter alia, the dates of all :
a) Routine weekly meetings held between DAFM with Coillte
b) Meetings attended by the Minister of State (DAFM) with Coillte
2. Please provide information on all attendees (both DAFM and Coillte attendees) to all July 2024 meetings between DAFM and Coillte .
3. Please provide, by email, a copy of the agendas and minutes (both handwritten and otherwise) for all July 2024 meetings covered by this AIE request .
4. Please provide by email, all information received by DAFM from Coillte in relation to all July 2024 meetings covered by this AIE request, whether received by DAFM prior to the scheduled meeting with Coillte or received by DAFM during the scheduled meeting with Coillte .
5. Please provide by email, all information received by Coillte from DAFM in relation to all July 2024 meetings covered by this AIE request, whether received by Coillte prior to the scheduled meeting with DAFM or received by Coillte during the scheduled meeting with DAFM .
6. Please provide copies of all informal notes / informal records etc, (handwritten information to be included) in relation to all July 2024 meetings covered by this AIE request, whether written/created during or after either the meetings and where the informal records etc relate to all, or any part, of the topics covered in any July 2024 meetings covered by this AIE request .
7. Please provide copies of all post meeting reports /updates etc. circulated within DAFM, from DAFM to Coillte and from Coillte to DAFM (e.g. emails, telephone notes/call, WhatsApp messages etc) regarding any topics covered at any July 2024 meetings covered by this AIE request”.
2. On 19 September 2024 the Department issued its original decision to the appellant, stating that it was granting the request and had identified one record coming within the scope of the review which it was releasing. The appellant submitted an internal review request on the same date.
3. On 18 October 2024 the Department issued its internal review decision, varying the decision and stating:
“My decision is to vary the previous Decision Maker’s decision, and to part-grant your request as follows :
Part 1 (a): granted (documentation supplied with original Decision letter of 19/09/24)
Part 1 (b): granted (documentation supplied with original Decision letter of 19/09/24)
Part 2: part-granted/granted (documentation supplied with original Decision letter of 19/09/24). Two (2) additional documents are now also part-granted in relation to this part of your AIE request .
Part 3: refused, as no such information exists
Part 4: refused, as no such information exists
Part 5: refused, as no such information exists
Part 6: refused, as no such information exists
Part 7: refused, as no such information exists
Please note that in relation to Part 2 of your request, two further documents have been identified which are part-granted, with redactions of confidential meeting links and passcodes .
Where information has been refused or partially refused, the following article(s) of SI 133/2007 apply :
Article 7(a) Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it .
And
8(a)(ii) A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information would adversely affect the interests of any person who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information .
Search Conducted
Following the assignment of the AIE request the following searches were undertaken: Subject Matter Experts (DAFM Forest Inspectors) were contacted, as they may hold information in relation to your request. SME 1 issued a response which was sent to you on 19/10/2024 as part of the documentation issued with the Decision letter of AIE 24 56 .
I again contacted SME1 in relation to this Internal Review request, and he confirmed that he conducted an Email Inbox search using the search criteria {two named SME’s} “Coillte” and “July 2024”. No further information or documentation was returned in relation to your request .
Following the assignment of this Internal Review request to me, Subject Matter Expert 3 was also contacted. They responded and returned two documents in relation to your request, which are part-granted with redactions and which I am attaching to this letter” .
4. The appellant appealed to this Office on 22 November 2024.
5. I have been directed by the Commissioner to undertake 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:
• 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’).
6. 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.
7. The appellant contends that adequate searches were not undertaken with respect to information sought and, that the Department was not justified in applying redactions to information released. Accordingly, the scope of this review is limited to whether adequate searches were undertaken by the Department pursuant to article 7(5) and whether it was justified in applying articles 8(a)(i), 9(1)(c) and 9(2)(c) to the information released.
8. In a submission dated 22 November 2024, the appellant provided the following:
“AIE/24/567 relates to meetings held between DAFM and Coillte in July 2024.
DAFM allege that 3 relevant meetings were held in July 2024 - on 8 July, 22 July and a meeting on 29 July being a meeting attended by the Minister of State (DAFM) - but that no agendas or meeting notes were produced by DAFM. (which information was requested by me under the AIE regulations) .
A virtually identical AIE request was submitted to Coillte (AIE/2024/0141). I am informed by Coillte that 4 relevant meetings were held in July 2024 - on 2 July which was attended by the Minister of State (DAFM), 8 July, 10 July which was attended by the Assistant Secretary General of DAFM and a meeting on 22 July .
Coillte provided to me under AIE/2024/0141 a copy of their presentation to the Minister of State for the meeting on 2 July 2024. (The presentation is dated 2 July 2024). This information had been requested from DAFM under AIE/24/567 (see point 4 of the AIE request) but was refused by DAFM under Article 7(5) (although this Article 7 (5) was not specifically stated by DAFM - instead DAFM stated that 'no such information exists'.). A copy of the information provided to me by Coillte on 5 September 2024 under AIE/2024/0141 is attached .
It is clear that the searches undertaken by DAFM for this AIE request have been both inaccurate and inadequate .
It does not appear credible to me that DAFM did not prepare both briefing notes and minutes for the July 2024 meeting between the Minister of State of DAFM and Coillte and the same for the July 2024 meeting between the Assistant Secretary General of DAFM and Coillte. I question if such an approach by DAFM is even consistent with any required protocols in relation to meetings of government Ministers” .
9. In a submission dated 27 of January 2026, the Department provided an updated position in respect of the requested information, releasing four further records, providing the following by way of information released/withheld:
“Item 1(a) – The appellant was provided at AIE stage with the dates of the routine weekly meetings in July 2024 (8th and 22nd) between Coillte and DAFM’s Felling team .
Item 1(b) – At AIE stage, the appellant was incorrectly provided with the date of 29th July. This appears to be incorrect, and I have since confirmed that there was a meeting between the Minister of State and Coillte on 2nd July 2024. I have been unable to confirm if a meeting was held on 10th July 2024, as per the appellant’s assertion .
Item 2 – The attendees of the routine weekly Coillte meetings were provided at AIE stage. I have provided the attendees of the meeting on 2nd July 2024 to the appellant in record 8 .
Item 3 – The meeting links and agenda for the routine weekly meetings were provided to the appellant Internal Review stage in records 4 and 5. There were no minutes of these meetings, which is customary for these meetings and this part of the request is now refused under article 7(5) of the AIE Regulations. There was no agreed agenda for the meeting on 2nd July 2024, as noted in the notes of the meeting, which have been provided to the appellant in record 8. Besides record 8, there were no official minutes of the meeting .
Item 4 – The email dated 24th May 2024 in records 7 and 9, which have now been provided to the appellant, are the only records from Coillte providing information on the meeting of 2nd July 2024 .
Item 5 – There are no records of information sent from DAFM to Coillte in relation to any of the above meetings and this is now refused under article 7(5) of the AIE Regulations .
Item 6 – There were no informal notes kept in relation to the routine weekly meetings held on 8th and 22nd of July 2024. The only notes identified in relation to the meeting on 2nd July 2024 are the notes of the meeting (record 8) and the briefing note prepared for the Minister of State in advance of the meeting (record 6) which have been provided to the appellant” .
10. In a further email, the Department noted it had received subsequent information from the Assistant Secretary, which stated _“I can confirm that I met with the Coillte CEO on 19 March and 10 July in Coillte HQ in Newtownmountkennedy, Co. Wicklow en route to meetings in Wexford. These were part of a regular series of informal catch-up meetings that I had with the Coillte CEO. There were no formal agendas associated with these, and no e-mail communication on specific items for discussion. I did not retain any notes of same, either written or electronic. I have carried out electronic and paper searches to confirm same. ”
7(5)
11. In this case it is the appellant’s position that the Department’s searches have not been adequate with respect to information she contends may be held regarding a meeting between the Department and Coillte on July 10th. The appellant notes that a ‘replica’ AIE request submitted to Coillte returned further information confirming that this meeting had taken place, while the Department, at internal review stage and in its initial January 2026 submission, noted it had no records in relation to a meeting on this date.
12. Article 7(5) of the AIE Regulations is the relevant provision to consider, where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned. It provides as follows:
“Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it” .
13. What will be considered reasonable will vary from case to case, but as a general guide, I set out below the type of information that the Office would generally expect to be set out in a decision where a public authority is relying on article 7(5) of the regulations:
(i) an outline of exactly which areas/units etc. of the organisation were searched for the information;
(ii) an explanation of how searches were carried out (i.e. manually, by computer, by name, by key words). Keywords should be recorded and provided in the decision as appropriate;
(iii) details of the individuals consulted in connection with the search;
(iv) a description of the searches carried out to cover the possibility of misfiled/misplaced records;
(v) details of guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of information requested in this case;
(vi) the basis on which the public authority has concluded that it does not hold any information within the scope of the appellant’s request and that no such information is held by any other person or body on its behalf.
14. This Office’s approach to dealing with this type of case is to assess whether adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied. What will be considered reasonable will vary from case to case.
15. The specific search questions raised by the appellant regarding the meeting on July 10 is noted in the Department’s submission in paragraph 10. Whilst initially stating it could not confirm if the meeting was held, in a follow up correspondence to this Office, it confirmed the meeting was held however that following an “electronic and paper search ” – no records have been found concerning it. I note that the appellant has provided this Office with a copy of the AIE response returned from Coillte noting the date of this meeting, of relevance here is that Coillte note in this response that “There was no meeting agenda, and no notes / minutes were taken at this meeting, therefore these documents do not exist ”.
16. The SME who attended the meeting on behalf of the Department described the meeting on July 10th as “part of a regular series of informal catch-up meetings ” further that “There were no formal agendas associated with these, and no e-mail communication on specific items for discussion” . In considering that neither the Department nor Coillte, the two authorities party to the meeting have submitted that having undertaken searches, no records exist in relation to this meeting, I am persuaded that no further information is held regarding it. Given the nature and purpose of the meeting, and the actions taken by both parties in fulfilling their obligations under the AIE request, I find that on the balance of probabilities, the total information held regarding the meeting has been provided.
17. It is important to note that we do not generally expect public authorities to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist or rejects a public authorities body's explanation of why a record does not exist. The test in article 7(5) is whether the body has taken all reasonable steps to locate the record sought.
18. Having considered the submissions of the parties and the information already released by the Department, I am satisfied that it has taken all reasonable steps to identify information within the scope of the request.
8(a)(i)
19. The Department has sought to rely on article 8(a)(i) to redact information within record 1 {‘Briefing for Meeting 2 July’], record 2 [‘Meeting Request, 25 June’], and record 4 [‘Coillte Meeting 2 or 3 July’] contending that this information is personal information which “relates to HR issues relating to individual members of Coillte staff and as such is protected by law and under article 8(i)(a) of the AIE Regulations” . Upon review of the records, the redacted information in record 1 can be described as board member names, while the information in record 2 and 4 concerns the mobile number of a staff member.
20. Article 8(a)(i) seeks to transpose Article 4(2)(f) of the AIE Directive, which enables Member States to provide for refusal of a request where disclosure would “adversely affect … the confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for by national or Community law ” .
21. The final paragraph of Article 4(2) states, referring to the predecessor to the GDPR: “Within this framework, and for the purposes of the application of subparagraph (f), Member States shall ensure that the requirements of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data are complied with . ”
22. In light of this, I consider that the reference to “personal information ” in article 8(a)(i) of the AIE Regulations to be consistent with the meaning of “personal data” under the GDPR, a concept with which every public authority is now very familiar. It is clear from this final paragraph of Article 4(2) of the AIE Directive that the AIE regime is intended to interact harmoniously with the European data protection regime. In the same vein, Article 86 of the GDPR (read with recital 154) permits the disclosure of personal data in accordance with information access regimes under EU or national law, where those regimes reconcile the right of access to information with the right to protection of personal data. This again indicates that the GDPR is intended to interact harmoniously with national and European regimes offering public access to information.
23. With respect to the position contended by the Department that the redacted information (board member names/staff mobile number) enjoys the protection of article 8(a)(i) this issue has been considered and adjudicated in detail in decision OCE-161017-J5W7L2 . In my view the analysis concerning GDPR in that decision at paragraphs 46 to 66 is applicable also to this case. I am satisfied that the information is ‘personal information’, that the requester has a ‘legitimate interest’ in receiving the data pursuant to the request and that its disclosure is necessary to meet that interest. Whilst the Department have not confirmed if consent was given by the data subjects to disclose the information, I can reasonably assume that it has not been given. I am also satisfied that the personal information at issue in this case does not fall under any of the special categories of personal data meriting higher protection.
24. It is necessary therefore to next consider the public interest balancing test, as noted in OCE-161017-J5W7L2 (paragraph 70) although as a matter of principle a public authority must carry out the balancing exercise in Article 6(1)(f) first and again (if needed) under article 10(3) of the AIE Regulations, in practice it is unnecessary for me to go through the exercise twice because in this decision as the analysis is the same.
25. While the Department noted that, regarding the redacted phone number “there is little public interest in releasing ” it did not further outline its consideration of the public interest balancing test obliged under article 10(3) and 10(4) in its submission to this Office regarding this information nor the release of the board member names, nor did it detail the adverse impact of disclosure of this information. In the absence of further submissions from the Department, I have considered broadly the individual data subjects’ interest in the protection of their personal data, taking into account the nature of the specific personal data at issue and the data subject’s rights under Articles 7 and 8 of The Charter of Fundamental Rights of the European Union. I have considered the nature of the information is question, namely information regarding a person’s employment. I consider this to be at the less sensitive end of the scale of personal information, given that such information is often freely made available by data subjects on the internet and elsewhere.
26. In noting the specific information at issue here however [names and phone number], I am of the view that the internal phone number or mobile number of a staff member should be considered separately to board member’s name. An internal phone number or mobile number is generally not intended for use by the public in contacting members of a public authority, as public authorities generally provide contact information for members of the public on their websites.
27. With respect to the information in record 1 regarding board member names, I note that this information is freely available on Coillte’s website.
28. When considering individuals’ interest in the protection of their personal data, I have taken into account whether there is likely to be any adverse effect for the individuals or otherwise, if their data is released. With respect to the board member names, I note that the Department have not outlined such an adverse impact, nor can I identify any given the nature of the information and as noted above, these names are available publicly.
29. As noted above in paragraph 26, I do not consider that staff mobile or internal phone numbers can be considered on equal terms as board member names. Given the purpose of such phone numbers, I consider that there is limited or no public interest in releasing phone numbers in circumstances where other avenues of communication with respect to access to information are open to the public.
30. Weighing the above interests in the balance, I conclude that the public interest in releasing the board member names outweighs the interests served by the refusal. In considering the public interest in releasing the corresponding staff phone numbers, I am of the view that the public interest of disclosure does not outweigh the interest served by refusal.
9(1)(c)
31. The Department have sought to invoke article 9(1)(c) to justify redactions made in records 1, 3 and 4, contending that “It is the Department’s position that the release of commercially sensitive information, including future commercial strategies, financial forecasts and investment plans of a commercial semi-state body, such as Coillte, should be refused under article 9(1)(c) of the AIE Regulations and that it would not be in the public interest to release this information as it would have the real risk of undermining the company’s position relative to private competitors and negotiations in relation to future projects” .
32. Article 9(1)(c) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or European law to protect a legitimate economic interest. This provision seeks to transpose Article 4(2)(d) of the AIE Directive, which, in turn, is based on Article 4(4)(d) of the Aarhus Convention. Article 9(1)(c) must be considered alongside article 10(3) and 10(4) of the AIE Regulations. Article 10(3) 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.
33. The Minister’s Guidance, in considering article 9(1)(c) of the AIE Regulations, states: “The fact that a person or company asks for information to be treated as confidential does not of itself establish it as such for the purpose of the Regulations, and the public authority must satisfy itself that real and substantial commercial interests are threatened. In addition, the fact that the release of information (for example, in relation to a pollution incident) might damage the reputation of a company is not of itself adequate reason for withholding it .” (paragraph 12.4).
34. When relying on article 9(1)(c), a public authority must show that the information at issue is commercial or industrial in nature; that the commercial or industrial information has an element of confidentiality; that the confidentiality of that commercial or industrial information is provided for in law to protect a legitimate economic interest; and that the economic interest, would be adversely affected by disclosure of the information at issue. As outlined above, the public authority must demonstrate a clear link between disclosure of the information that has actually been withheld and any adverse effect. The adverse effect on its legitimate economic interest must be reasonably foreseeable and not purely hypothetical. A mere assertion of an expectation of harm is not sufficient.
35. The Department’s submission regarding the applicability of article 9(1)(c) is noted in paragraph 31 above. While the Department has categorised the information as ‘commercially sensitive ’, it has failed to demonstrate how this is the case, nor has it identified a law which provides for the confidentiality of the information. It notes that release of the records would risk undermining the ‘company’s position ’ with respect to private competitors and negotiations to future projects but does not identify which records in particular and in what specific way these negotiations would be undermined. Accordingly, in my view the Department has failed to justify why it has refused certain information in relation to article 9(1)(c).
36. Having reviewed the information in question, I note it contains, prima facia, information of a commercial and financial nature, which concerns both the Department and third parties. While this does not automatically confer the protection of 9(1)(c), it would not be appropriate in my view to direct release of it at this juncture. Further, as the Department did not make submissions on the applicability of 9(1)(c) to this information in its internal review decision (as the identification of the information by the Department postdated it) the correct course of action to my mind therefore is to direct the Department to undertake a fresh internal review decision concerning the information redacted under this provision.
37. In circumstances where I have found that the applicability of article 9(1)(c) is not demonstrated, the question of considering the public interest test at article 10 of the AIE Regulations does not arise.
9(2)(c)
38. The Department has sought to rely on article 9(2)(c) to redacted information in record 1, page 12, which it also seeks to invoke article 9(1)(c) to, as above.
39. 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. This exemption is not harm-based. It is not necessary for the public authority to show that there is any adverse effect in respect of the release of the information at issue to engage the exception, simply that the information concerns material in the course of completion, or unfinished documents or data, although, as noted below, there is still a requirement to then consider the public interest.
40. Article 9(2)(c) 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 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. Article 10(6) of the AIE Regulations states that where a request is refused pursuant to article 9(2)(c) because it concerns material in the course of completion, the public authority shall inform the applicant of the name of the authority preparing the material and the estimated time needed for completion.
41. In its submission to this Office the Department have contended that the information in question has invoked protection from 9(2)(c) “as it relates to information that is still subject to deliberations, where release may impact negotiations ”. The Department did not indicated how specifically 9(2)(c) of the AIE Regulations is engaged, that is on the basis the information at issue “concerns material in the course of completion, or unfinished documents or data” (i.e. which limb(s) of the exemption is being relied upon).No information was provided in respect of weighing the public interest served by disclosure against the interest served by the refusal as is required by articles 10(3) and 10(4).
42. Although the concepts of ‘material in the course of completion’ and ‘unfinished documents or data’ are not defined [by the AIE Directive], it is apparent from the explanations relating to Article 4 of the Proposal for a Directive of the European Parliament and of the Council on public access to environmental information presented by the Commission on 29 June 2000 (COM(2000) 402 final) (OJ 2000 C 337 E, p. 156) that the purpose of that exception is to meet the need of the public authorities to have a protected space in which to pursue internal considerations and debates (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C-619/19, EU:C:2021:35, paragraph 44). The Court has also held, that provided for in point (d) of the first subparagraph of Article 4(1) of the directive relates to the preparation or drafting of documents and is therefore of a temporary nature (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C-619/19, EU:C:2021:35, paragraph 56).
43. It is this Office’s view that “material in the course of completion” relates to the process of preparing information/documents. The Aarhus Guide states that “the expression ‘in the course of completion’ relates to the process of preparation of the information or the document and not to any decision-making process for the purpose of which the given information or document has been prepared.” However, this Office considers that the factual circumstance of each case is relevant to assess and considers that this exemption may apply in two ways, firstly to information that is itself in the course of completion or unfinished, but secondly to information that while not itself material in the course of completion or unfinished, sufficiently concerns the material in the course of completion or unfinished information.
44. The Aarhus Guide also includes the following commentary:
A request for access to raw environmental data cannot be refused on the grounds that it is “material in the course of completion” to be made publicly available only after processing or correction factors have been applied. In its findings on ACCC/C/2010/53 (United Kingdom), the Committee considered whether raw air pollution data collected from a monitoring station and not yet subject to data correction could be exempted from disclosure as “material in the course of completion”. The Committee considered that the raw data was itself environmental information within the meaning of article 2, paragraph 3 (a), of the Convention . […]
45. Similarly, the mere status of something as a draft alone does not automatically bring it under the exception. The words “in the course of completion” suggest that the term refers to individual documents that are actively being worked on by the public authority. Once those documents are no longer in the “course of completion” they may be released, even if they are still unfinished and even if the decision to which they pertain has not yet been resolved. “In the course of completion” suggests that the document will have more work done on it within some reasonable time frame. Other articles of the Convention also give some guidance as to how Parties might interpret “in the course of completion”. Articles 6, 7 and 8 concerning public participation require certain draft documents to be accessible for public review. Thus, drafts of documents such as permits, EIAs, policies, programmes, plans and executive regulations that are open for comment under the Convention would not be “materials in the course of completion” under this exception.
46. I consider that the purpose of this exemption is to give public authorities time and private space to draft and amend documents that they are preparing before they are finalised. The European Commission acknowledged this interest in its First Proposal for the AIE Directive, as did the Court of Justice of the European Union in Case C 619/19 Land Baden-Württemberg v. D.R. at paragraph 44. I emphasise that this interest is in maintaining the confidentiality of draft documents while they are still being actively worked on, rather than in maintaining the confidentiality of completed documents pending the conclusion of decision-making process.
47. Having reviewed the document provided by the Department, which is a briefing note prepared for the minister for a meeting with Coillte, I note that the redacted information refers to financial information concerning third parties, it is evident that this information is not “material in the course of completion” pursuant to the AIE Regulations. There is nothing in the record provided that indicate to me that any of the data contained therein is subject to any further checks or that any part is considered to be “draft documents” or documents in the process of being finalised or actively worked on. While the Department have stated that the information “relates to information that is still subject to deliberations ” this does not in itself characterise the redacted information as being in and of itself “material in the course of completion”, “unfinished documents”, or “unfinished data”; it is clear that the information within the record itself is complete. It is important to note that this exemption applies to actual documents or data, and not to unfinished processes.
48. I find, therefore, that the Department have not demonstrated the applicability of article 9(2)(c). In the circumstances, I am not required to go on and consider article 10 of the AIE Regulations. I further note that as the Department also sought to invoke 9(1)(c) with respect to this information, the information in question is subject to a remittal back to the Department as outlined in paragraph 36.
49. Having carried out a review under article 12(5) of the AIE Regulations, I find that the Department have conducted adequate searches for the information sought, pursuant to article 7(5) of the AIE Regulations.
50. I annul the Department’s decision with respect to article 8(a)(i) regarding the applicability of this article to board member names and direct it to release this information to the appellant.
51. With respect to information redacted under article 9(1)(c) I find that it did not provide adequate reasons for same. I annul this part of the Department’s decision and direct that it undertakes a fresh internal review decision concerning information redacted under this provision.
52. With respect to the Department’s application of 9(2)(c) I find that this article is not applicable to the redacted information, however as this information is also the subject of redactions under article 9(1)(c) I make no further direction.
53. 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.
Gemma Farrell
Senior Investigator
Office of the Commissioner for Environmental Information