Cinneadh
People Over Wind and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-158447-J1J4W5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-158447-J1J4W5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Coillte was justified in refusing access to information coming within the scope of the appellant’s request contained in 17 records under articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, and, in all the records apart from record 5, under article 9(2)(d) of the AIE Regulations.
23 October 2025
1. This appeal relates to a request to Coillte for information relating to the Cullenagh wind farm (the “Project”).
2. On 12 November 2018, the appellant submitted an AIE request to Coillte seeking the following information “regarding Coillte’s proposed windfarm at Cullenagh, County Laois:
• Details of the cost benefit analysis (or other economic analysis as applicable) used to underpin the Cullenagh Co. Laois wind farm project.
• Details of all objectives/key drivers/reasons upon which the project is based or is designed to facilitate (including short, medium, and long-term objectives).
• A statement explaining whether there are different versions of the business case. In the instance that there are differing versions, I am requesting that all versions are supplied.
• All documentation that was submitted to Coillte Board to underpin the project.
• A copy of the decision of the Board to proceed with the project.
• A copy of all Board meeting minutes discussing the project.”
3. On 16 November 2018, Coillte informed the appellant that it considered the request to have been made in too general a manner and invited the appellant to make a more specific request. In particular, it invited clarification of the scope of what it called “requests numbered 1, 2, 3 and 4”, which I will refer to as parts 1, 2, 3 and 4 of the AIE request. The appellant replied on the same day, offering the following modified version of the request:
1. A copy of the cost benefit analysis (or other economic analysis if this exists) used to underpin the Cullenagh Co. Laois wind farm project.
2. Removed.
3. A copy of the business case for the Cullenagh wind farm project, Co. Laois. (In the instance that there are differing versions, I am requesting that all versions are supplied.)
4. All documentation that was submitted to Coillte Board regarding the Cullenagh wind farm project, Co. Laois.
5. A copy of the decision of the Board to proceed with the project.
6. A copy of all Board meeting minutes discussing the project.”
4. In respect of part 3 of the request, the appellant clarified that a business case “is usually the key document of record that integrates all of the various elements required to support a decision on the merits of a proposal and is expected to include: Objectives, Scope, Feasibility, Options Appraisal (Economic / Financial / Risk Analysis), planning and design issues and a final recommendation”. In the remainder of this decision, I refer to this modified request as the “request”.
5. On 11 December 2018, Coillte notified the appellant of its decision to refuse access to the information requested. Parts 1, 3, 4 and 6 of the request were refused on the basis that the information was not environmental information, within the meaning of article 3(1) of the AIE Regulations. Part 5 of the request was refused on the basis that no decision had been taken by the board to proceed with the project. In addition, Coillte stated that:
a) Parts 1 and 3 of the request may be refused on the basis that it comprises information in the course of completion (article 9(2)(c)) and that disclosure of the information, once completed, would adversely affect commercial or industrial confidentiality (article 9(1)(c)).
b) Parts 4 and 6 of the request may be refused on the basis that disclosure of the information would adversely affect commercial or industrial confidentiality (article 9(1)(c))
6. On 10 January 2019, the appellant requested an internal review of Coillte’s decision, including submissions as to why the decision was incorrect. No response was received to the request for an internal review.
7. The appellant brought an appeal to this Office on 23 February 2019.
8. This Office sought and received written submissions from the appellant and from Coillte during the investigation of the appeal. Coillte clarified and revised its position during the course of the investigation. In summary, Coillte’s effective decision to refuse access was as follows:
a) It did not hold any information in respect of parts 1, 3 and 5 of the request. While its initial decision related to 5 identified records falling within the scope of parts 4 and 6 of the request, it had identified 11 additional records also falling within the scope of parts 4 and 6 of the request which had not been considered as part of that decision. (Those additional records were not provided to this Office during the first appeal.)
b) The information requested in all parts of the request “could, in principle, contain” environmental information.
c) In respect of parts 4 and 6 of the request, the exceptions in articles 8(a)(iv) and/or 9(1)(c) applied.
d) In respect of part 6 of the request, the exceptions in article 9(2)(d) also applied.
9. On 22 November 2019, my predecessor reached a decision on the appeal, which is available here (CEI/19/0011). In summary, he found that:
a) Coillte held information falling within parts 3 and 5 of the request (business case information and interim decision(s) to proceed with stages of the project, respectively);
b) Coillte did not hold information falling within part 1 of the request (cost benefit analysis);
c) The information falling within the scope of parts 3 to 6 of the request and contained in the 5 records provided to this Office is environmental information;
d) Information in record 5 relating to other projects was out of scope of the request; and
e) In respect of part 6 of the request, article 9(2)(d) did not apply. He accepted that the information in record 5 could concern internal communications, but he was not satisfied that the information was of the type intended to be provided for under that provision or that the public interest in refusal would outweigh the public interest in disclosure
10. My predecessor did not make a finding in respect of articles 8(a)(iv) or 9(1)(c), as there was uncertainty around Coillte’s treatment of the request, Coillte acknowledged holding 11 additional records which it had not yet considered, and it would be preferable for the necessary weighing of competing interests in relation to the information to be done in respect of all of the information considered together.
11. He noted that, in the absence of an appeal to the High Court and if the appellant wished Coillte to proceed, Coillte should regard itself as having received an AIE request on the date when the appellants make that wish known, asking for:
a) All environmental information in documentation that was submitted to Coillte’s Board regarding the Cullenagh wind farm project, Co. Laois up to 12 November 2018.
b) All decisions of the Board to proceed with any stage of the project (including interim decisions) up to 12 November 2018.
c) All of the information in the 11 documents recently located by Coillte, in so far as those documents were held by Coillte on 12 November 2018.
12. On 20 January 2020, the appellant confirmed that it would like Coillte to proceed to consider the remitted request.
13. On 20 February 2020, Coillte refused access to information held in 17 documents. Coillte confirmed that total of 12 (rather than 11) additional documents were located by Coillte during the course of the investigation of the first appeal, but the number was incorrectly stated to the investigator due to inadvertent error on Coillte’s part. In its decision, Coillte described the documents as follows:
“The requested records comprise:
(a) Board minutes or extracts thereof relating to the Project; and
(b) decision items submitted to Coillte’s Board relating to the Project.
These records contain details on Coillte’s overall development strategy, commercial risk management approaches and wider business strategic considerations for projects generally, including the Project. For example, the possibility of a joint venture incorporation and proposed mutual shareholder rights, outlined Coillte’s interpretations of identified business risks as a result of certain external factors unrelated to the Project, estimations of costs and legal and commercial advices obtained from third party advisors. They also contain details or reflect considerations of other matters in the context of the Project.
These matters include, among other things, the implications of certain court proceedings and anticipated related legal costs.
Some of these records also detail interim business decisions made by Coillte’s board regarding the Project. However, some of these interim decisions were conditional upon other outcomes/events occurring that have not yet transpired. Other interim decisions have not been executed given the impact of certain external factors, such as judicial review challenges taken by People Over Wind, causing delays in the Project.”
14. Coillte’s grounds for the refusal decision were, in summary:
a) Article 8(a)(iv): Coillte must refuse a request where disclosure of the information requested would adversely affect the confidentiality of proceedings of public authorities, where such confidentiality is protected by law, including exempt records under the Freedom of Information Act 2014 (the FOI Act). In particular:
(i) If information about the proceedings of public authorities is capable of being protected under the FOI Act, Coillte must not release this information under the AIE Regulations. This applies even where Coillte is an exempt body under the FOI Act. Disclosure of the information would adversely affect the confidentiality of information that is exempt under sections 30(1)(a), (b) and (c) and 31(1)(a) of the FOI Act.
(ii) Under section 33 of the Forestry Act 1988, Coillte is prohibited from disclosing confidential information obtained by it while performing its duties unless duly authorised to do so. “Confidential” is defined as meaning that which is expressed to be confidential either as regards particular information or as regards information of a particular class or description. Many of the requested records have been expressed to be confidential by or for the Board.
(iii) The balance of legitimate public interests does not weigh in favour of disclosure of the requested records.
b) Article 9(1)(c): Coillte may refuse a request where disclosure of the information requested would adversely affect commercial or industrial confidentiality provided for in Irish or EU law to protect legitimate economic interests. The confidentiality of information provided for in national or Community law can include exemptions under the FOI Act. Disclosure of the information would adversely affect the confidentiality of information that is exempt under sections 30(1)(a), (b) and (c) and 31(1)(a) of the FOI Act. In addition, release of the requested records would adversely affect commercial or industrial confidentiality provided for in sections 35(1) and 36(1) of the FOI Act. The balance of legitimate public interests does not weigh in favour of disclosure of the requested records.
c) Article 9(2)(d) (in the alternative to the exceptions above): Coillte may refuse to make environmental information available where the request concerns internal communications, taking into account the public interest served by the disclosure. The requested records comprise internal communications of Coillte and its Board. Article 9(2)(d) applies to all records other than record 5 (in respect of the Commissioner previously found that article 9(2)(d) did not apply) on the ground that they contain and/or reflect strategic considerations of a confidential and commercially sensitive nature relating to the development phase of the project or other projects. In addition, some of these records reflect interim decisions that were conditional upon other outcomes/events that have not yet transpired, or decisions that have not been executed given the impact of certain external factors and/or delays in the project. The balance of legitimate public interests does not weigh in favour of disclosure of the requested records.
15. On 26 February 2020, the appellant requested an internal review.
16. On 26 March 2020, Coillte affirmed its decision to refuse the remitted request.
17. On 27 April 2020, the appellant brought an appeal to this Office. Although the appeal was brought outside the time set out in article 12(4)(a) of the AIE Regulations, in light of submissions made by the appellant my predecessor exercised the power under article 12(4)(b) of the AIE Regulations to extend the time for initiating an appeal.
18. This Office sought and received written submissions from the appellant and from Coillte during the investigation of the appeal. By agreement with the investigator, Coillte’s submissions focused on the interpretation of article 8(a)(iv) of the AIE Regulations.
19. On 20 July 2021, the investigator informed the parties of my predecessor’s intention to refer a question of law arising in this appeal to the High Court for determination under article 12(9)(a) of the AIE Regulations and invited the parties to make any submissions that they may wish me to take into account on the wording of that question.
20. On 23 August 2021, Coillte made submissions to this Office on the procedure for referral and on the questions to be referred to the High Court. The appellant did not make any submissions.
21. As indicated to above, the Commissioner for Environmental Information has a power under article 12(9)(a) of the AIE Regulations to refer any question of law arising in an appeal to the High Court for determination. In November 2021, my predecessor used this power to refer a question to the High Court, seeking the High Court’s guidance on the interpretation of articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, to the extent they involved an interplay with the Freedom of Information Act 2014 ( Notice of Motion and Grounding Affidavit ) . Accordingly, it was not possible to progress this case until the Court provided its legal guidance. As such, this appeal was placed on hold pending the receipt of the Court’s decision. The High Court issued its judgment on 28 April 2023 and it is available at 2023 IEHC 227 .
22. In this judgment, the High Court stated at paragraph 111:
“The FOI Act only protects the confidentiality of proceedings of public bodies where records sought to be disclosed are found to be exempt within the meaning of the FOI Act. Records are only exempt where the public body seeking to withhold access is a body subject to the FOI Act, as defined by section 6 of the FOI Act, and where (if applicable), both limbs of the test for exemption are met: the records come within an exemption protecting the confidentiality of proceedings of public bodies and the public interest does not warrant disclosure. As Coillte is an “exempt agency” under the Act, the confidentiality protection under the FOI Act identified in Regulation 8(a)(iv) is not available to Coillte.”
23. I am of the view that it follows from the above that it is not open to Coillte to rely on the provisions of the FOI Act when seeking to apply article 8(a)(iv) or any of the other exemptions in the AIE Regulations to information sought in an AIE request. In light of comments made by Coillte in its submissions to this Office on 9 July 2025, this is discussed in further detail below.
24. On 19 December 2024, I reached a decision on the second appeal to OCEI, which is available here (OCE-93414-J3Y7T8). I annulled Coillte’s decision and directed it to carry out a fresh internal review decision-making process in respect of the information at issue contained in all 17 records identified under articles 8(a)(iv) and 9(1)(c), and, in all the records apart from record 5, under 9(2)(d) of the AIE Regulations. The appellant initiated judicial review proceedings against this Office in light of that decision (JR 2025 355).
25. On 18 March 2025, Coillte issued its new internal review decision. Coillte again refused access to information it identified as relevant contained in 17 records under article 8(a)(iv) and 9(1)(c), and in all the records apart from record 5, under article 9(2)(d) of the AIE Regulations. Coillte also withheld information from records 3, 5, 6, 10, 13, and 16 on the basis that it fell outside the scope of the appellant’s request.
26. On 17 April 2025, the appellant submitted an appeal to this Office of Coillte’s decision dated 18 March 2025.
27. During the course of this review both parties were provided with a draft decision and given an opportunity to comment. I have carried out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between Coillte and the appellant, as outlined above, and to correspondence between this Office and both Coillte and the appellant on the matter. I have also considered the decision of the High Court referred to above and examined the content of the records at issue. In referring to the records at issue I have used the numbering system used by Coillte on the schedule prepared when processing the request. 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);
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the Aarhus Guide)
28. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
29. 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 may require the public authority to make available environmental information to the appellant.
30. The background to this matter is set out in detail above. This appeal arises in particular out of the decision dated 19 December 2024 in case OCE-93414-J3Y7T8 wherein I directed Coillte to carry out a fresh internal review decision-making process in respect of the information at issue contained within 17 records identified. Coillte issued its new internal review decision on 18 March 2025.
31. In its new internal review decision Coillte refused access to information it identified as relevant contained in 17 records under article 8(a)(iv) and 9(1)(c), and in all the records apart from record 5, under article 9(2)(d) of the AIE Regulations. Coillte also withheld information from records 3, 5, 6, 10, 13, and 16 on the basis that it fell outside the scope of the appellant’s request. During the course of this review, the Investigator asked Coillte to identify the precise information which was withheld from each of the records concerned on the basis that it fell outside the scope of the appellant’s request. In response, Coillte stated:
“3.1 Please note that these records relate to the meeting of Coillte’s Board between 25 July 2013 and 26 April 2018. At these meetings, several distinct items were discussed, including the status of other renewable energy projects being pursued or considered by Coillte. Given that the request that is the subject of this Appeal was initially limited to information relating to the Cullenagh wind farm project, this information was considered outside of the scope.
3.2 This position was maintained in the Decision, notwithstanding that the request was amended to include “3. All of the information in the 11 documents (recently located by Coillte), in so far as those documents were held by Coillte on 12 November 2018.” Therefore, in relation to the records that fall within category 3, I confirm that I have reviewed the information that was previously considered to be outside the scope of this Request and submit that the same exemption provisions apply, namely Articles 8(a)(iv), 9(1)(c) and 9(2)(d). The information relates to similar commercially sensitive matters, save that it pertains to different projects” (Coillte’s emphasis)
32. Coillte’s reference to “3. All of the information in the 11 documents (recently located by Coillte), in so far as those documents were held by Coillte on 12 November 2018” appears to be taken from my predecessor’s decision in CEI/19/0011 , the first appeal to this Office. This matter has considerable background which is set out above and which was set out in my decision in OCE-93414-J3Y7T8. Having regard to all of that detail it is clear that it was only ever the case that information relating to the Cullenagh wind farm project fell within the scope of the appellant’s request. Accordingly, I disagree with Coillte’s revised interpretation of the appellant’s request - that it is not limited to information relating to the Cullenagh wind farm project.
33. Therefore, I am satisfied that it was not incorrect for Coillte, in its new internal review decision dated 18 March 2025, to assess whether certain information contained within the 17 records identified fell outside the scope of the appellant’s request on the basis that it did not relate to the Cullenagh wind farm project. My investigator’s query, referred to above, was simply asking Coillte to identify the precise information contained in records 3, 5, 6, 10, 13, and 16 that was withheld on the basis that it fell outside the scope of the appellant’s request. As Coillte did not do so, it was for me to make that determination. Coillte only made submissions regarding particular information that it considered to fall outside the scope of this review in response to the draft decision. Coillte should ensure that in future relevant cases it takes appropriate steps to properly identify information that falls in/outside scope both to requesters on the schedule of records and to this Office. While I note Coillte’s misunderstanding of CEI/19/0011, set out above, given that certain information had been identified as being outside scope at internal review, is most disappointing that Coillte did not properly engage in respect of same until such a late stage.
34. Regarding records 2, 3, 4, and 5, I note that my predecessor in CEI/19/0011 stated:
“I was satisfied that the information in records 1-4 falls within the scope of the AIE request and this appeal. Record 5, however, relates to multiple projects. It is a record of a Board decision made on 25 July 2013 concerning two other projects as well as the Cullenagh windfarm project and it specifies a sum of money that relates to all three projects together. I regard the information on the other projects as outside the scope of this appeal (since it was outside the scope of the AIE request). Similarly, since the sum of money specified in the record applies to all three projects, a reader cannot see how much of that sum applies to the Cullenagh windfarm. I therefore consider that the sum of money is out of scope. What remains of record 5, within scope, is a Board decision, without reference to other projects and without reference to a sum of money.”
35. I have no reason to dispute my predecessor’s findings regarding record 5. However, having considered record 3 I am of the view that the information in the second and third blocks of text at paragraph 3 relates specifically to other wind farm projects. Furthermore, in its most recent submission to this Office, Coillte explained that records 2 and 3 list two specific workstreams in the “Executive Summary” (record 2) and “Background” (record 3) sections, however the Cullenagh Project relates solely to the first workstream listed (Point 1 and Point A respectively) and does not relate to the second workstream listed (Point 2 and Point B respectively). Having considered the record in light of Coillte’s comments, I am satisfied that the information at Point 2 and Point B of records 2 and 3 does concern an unrelated workstream. Coillte also submitted that one additional phrase and one additional sentence in in Record 3 should be redacted on the basis of scope and, while I note Coillte’s comments I am satisfied that it is sufficient to limit any further redactions to the name of the other windfarm project contained in that phrase and sentence (and elsewhere in record 3), as the remainder of the text discusses that other project in the context the Cullenagh project and, as such, falls within scope. Finally, Coillte submitted that while the majority of the information in record 4 pertains to the Cullenagh Project, “there is commentary regarding wider background information that is not specifically within the scope of the request”, namely the second and third sentences of section 1, paragraph 2. Having examined those sentences, I am satisfied that they do not relate to the Cullenagh project and fall outside scope.
36. Accordingly, while I am satisfied that certain information in contained in records 2, 3, 4, and 5 falls within the scope of this review, the following information falls outside the scope of this review:
• the information at Point 2 of the “Executive Summary” in record 2 and at Point B of the “Background” in record 3.
• the information in the second and third blocks of text at paragraph 3 specifically relating to other wind farm projects contained in record 3 (for the purposes of clarity, given Coillte’s recent submissions, this is the information described by it in the two bullet points under its heading “Record 3”, in other words, section 3, paragraphs 2 and 3).
• the names of other windfarm projects contained in record 3.
• the second and third sentences of section 1, paragraph 2 in record 4.
• the names of the two other windfarm projects and the sum of money contained in record 5.
37. As noted above, in its new internal review decision Coillte refused access to information contained in 17 records identified as relevant to the appellant’s request under articles 8(a)(iv) and 9(1)(c), and, in all the records apart from record 5, under article 9(2)(d) of the AIE Regulations. In its submissions with this Office, Coillte confirmed that it was also applying article 9(2)(d) in respect of record 5. My predecessor in CEI/19/0011 already found that Coillte’s decision to refuse access to relevant information contained in record 5 under article 9(2)(d) of the AIE Regulations was not justified having regard to the public interest test. Accordingly, I am satisfied that Coillte cannot rely on article 9(2)(d) to refuse access to record 5 in this appeal. It is well-established that appeals to this Office are de novo and the relevant facts are those at the time of the decision. I cannot see any material factual difference that would alter the decision of my predecessor in CEI/19/0011. While I note Coillte’s recent comments regarding record 5 in its recent submissions to this Office were made “on a principled basis only”, I wish to note that the decision of my predecessor regarding record 5 under article 9(2)(d) stands and had Coillte disagreed with my predecessor’s decision on that issue at that time it was open to Coillte to appeal same to the High Court. I note that Coillte also made comments regarding overlap of information between records 5 and 6 - in this regard, I refer Coillte to identify carefully the information contained in records 5 and 6 that was particularised in the draft decision and is listed above and below as falling outside scope.
38. Regarding record 6, this also relates to the Board Meeting on 25 July 2013 concerning two other projects as well as the Cullenagh windfarm project and it specifies sums of money for first stage payments regarding grid connection relating to each project and a total sum of money that relates to all three projects together. Accordingly, while I am satisfied that the majority of information contained in record 6 falls within the scope of this review, I am satisfied that the following falls outside the scope of this review:
• the names of the two other windfarm projects,
• the sums of money for first stage payments relating to the two other windfarm projects,
• the total sum for all three projects, and
• the lines of the table on page 2 relating to the two other projects
39. Having considered records 10, 13, 14 and 16, I am satisfied that the majority of information contained in these records falls within the scope of this review. However, I am satisfied that the following falls outside the scope of this review:
• the names of other windfarm projects where contained in any of records 10, 13, 14, and 16
• the first sentence in Record 13 is not, I understand, related to the Project.
• the four words before the name of the other project at section 3.5 of record 13.
• the details for Risk 7, Risk 10, and Risk 23 in Record 13 are not, I understand, related to the Project.
• the information reflective of Risk 10 between the two semi colons in record 14.
• the information identified relating to the second business process not related to the Project in record 16.
40. In its most recent submissions Coillte submitted that further information falls outside scope in Record 13; in addition to the name of the another windfarm, the four words prior to the name of the other project at section 3.5 and Risk 10. Coillte also submitted that Risk 10 is reflected between the two semi colons in record 14 and that information is outside scope. Finally, Coillte submitted that Record 16 describes two business processes and explained that the Cullenagh Project only relates to one of those processes, such that identified information regarding the process to which the Project does not relate falls outside scope. Having examined the information, I am satisfied that it can be determined to fall outside scope, and this is reflected in the list above.
41. Where there is information relating to other windfarm projects further to the names of those projects / energy development more generally contained in records 10, 13, 14, and 16, I consider such information to be inextricably linked to the Cullenagh windfarm project and, accordingly, to fall within the scope of this review.
42. Having regard to all of the above, I am satisfied that the scope of this review is concerned with whether Coillte was justified in refusing access to information coming within the scope of the appellant’s request contained in 17 records under articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, and, in all the records apart from record 5, under article 9(2)(d) of the AIE Regulations.
43. A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of this decision. Regarding the appellant’s most recent submissions to this Office, I note that the de novo nature of this review also means that it is not confined to the basis upon which Coillte reached its decision. Additionally, I note that it is clear from the comments of the Court of Appeal in Redmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83, at paragraph 51, that the nature of a review by this Office is inquisitorial, rather than adversarial in nature. The extent of the inquiry is determined by this Office and not by the parties to the appeal. This Office must adjudicate the merits of the decision to refuse by reason of an analysis of the information and the interests engaged, which might suggest either disclosure or refusal. However, this does not mean that this Office must, or will, continue to ask an AIE body for sufficient details and arguments until the threshold for an exemption is met. I have at all times acted independently and impartially, consistent with the inquisitorial nature of the role of this Office. I completely reject the appellant’s submission to the contrary. I consider it to have been the appropriate approach to invite on 28 May 2025 both the appellant and Coillte for submissions on the application of article 9(1)(c) of the AIE Regulations by reference to the equitable duty of confidence. I am satisfied that fair procedures were complied with throughout this appeal, and that both parties were notified of all material issues. I also note that they were both provided with a draft decision on the matter.
44. This appeal is the second issued by the Office that deals with the consequences on non-FOI bodies of the judgment of the High Court mentioned at paragraph 21. On 11 September 2025 I issued a decision in OCE-127779-J9Y4Q0 Right to Know CLG & The Department of Housing, Local Government and Heritage . That decision concerned records held by the Department and Bord na Mona. Bord na Mona made detailed submissions on a number of occasions and I assessed the confidentiality of the records using the equitable duty of confidence. In asking Coillte for submissions on 28 May 2025, I was ensuring that I had the full range of information before me to make a decision consistent with OCE-127779. Bord na Mona and Coillte are both semi-state bodies covered by the AIE Regulations and impacted almost identically by the 2024 judgment of the High Court. It would have been a clear breach of fair procedures in this appeal to have not highlighted my view on the equitable duty of confidence to Coillte prior to making a decision.
45. 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.
46. I have set out the positions of Coillte and the appellant in the Position of the Parties section below. While I do not repeat them in full in the Analysis and Findings section I can confirm I have had regard to them.
47. While I note the appellant’s comments and analysis regarding its belief that “Coillte did not carry out a new internal review” , I am satisfied that I can proceed to process this appeal on the basis of Coillte’s new internal review decision dated on 18 March 2025.
48. I assessed whether it was necessary for this Office to separately notify/consult relevant third parties for the purposes of this review, and I determined that this was not required in the circumstances of this case. I note that “[i]n 2021, Coillte and ESB came together to form the joint venture FuturEnergy Ireland, and this project transferred from Coillte to the new company as part of the portfolio”. I also note that in its recent submissions Coillte stated that it “considered that it was appropriate to canvas the views of FuturEnergy Ireland.” In this decision some of the references to Coillte include FuturEnergy Ireland and references to “its partners” include FuturEnergy Ireland, ESB, and prospective partners at the time of the records.
49. While I am required by article 12(5)(b) to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the information at issue and the extent to which I can describe certain matters in my analysis is limited.
50. Coillte’s new internal review decision included the following comments regarding the description of the records: “…’The requested records comprise:
(a) Board minutes or extracts thereof relating to the Project; and
(b) decision items submitted to Coillte’s Board relating to the Project.”
These records contain details on Coillte’s overall development strategy, commercial risk management approaches and wider business strategic considerations for projects generally, including the Cullenagh Windfarm Project (“the Project”). For example, the possibility of a joint venture incorporation and proposed mutual shareholder rights, outlines Coillte’s interpretations of identified business risks as a result of certain external factors unrelated to the Project, estimations of costs and legal and commercial advices obtained from third party advisors. They also contain details or reflect considerations of other matters in the context of the Project. These matters include, among other things, the implications of certain court proceedings and anticipated related legal costs. Some of these records also detail interim business decisions made by Coillte’s board regarding the Project. However, some of these interim decisions were conditional upon other outcomes/events occurring. Other interim decisions had not been executed at the relevant date of the Remitted Request (20 January 2020) given the impact of certain external factors, such as judicial review challenges taken by People Over Wind, causing delays in the Project.”
51. Coillte’s new internal review decision included the following comments regarding its application of article 8(a)(iv) of the AIE Regulations:
• “Under Article 8(a)(iv) of the AIE Regulations, Coillte must refuse a request where disclosure of the information requested would adversely affect the confidentiality of proceedings of public authorities, where such confidentiality is protected by law.”
• “In relation to “proceedings” under Article 8(a)(iv), the Commissioner’s decisions recognise that these may be proceedings concerning the internal operations of a public authority and not substantive proceedings conducted by the public authority in its area of competence.”
• “Coillte was established pursuant to the Forestry Act 1988, as amended (the “1988 Act”) to carry out the business of forestry and related activities on a commercial basis and, in exercise of these functions, it seeks to develop certain projects which go towards advancing the Government’s renewable energy objectives. Coillte exercises this commercial remit within the highly competitive, deregulated electricity generation sector established pursuant to the EU Third Energy Package and the Electricity Regulation Act 1999. generation sector established pursuant to the EU Third Energy Package and the Electricity Regulation Act 1999.”
• “On the basis that Coillte was operating and competing with private, commercial entities in relation to the Project and future projects, I consider that release of the requested records could reasonably be expected to have:
o prejudiced the effectiveness of Coillte’s inquiries and due diligence in relation to the Project, as well as those for future projects; and
o have a significant adverse effect on the performance of Coillte’s statutory functions in relation to the management of such projects and its relationships with potential joint venture partners.”
• “It would also disclose plans, criteria and procedures followed by Coillte in negotiations concerning such projects, including with potential joint venture partners, with the likely effect of prejudicing Coillte’s competitiveness as against the private, commercial entities operating in this market.”
• “In considering the confidentiality of proceedings of Coillte under Article 8(a)(iv) of the AIE Regulations, I have also considered the obligation of confidentiality on Coillte pursuant to Section 33 of the Forestry Act 1988, as amended (the “1988 Act”). “
• “Under this provision, Coillte is prohibited from disclosing confidential information obtained by it while performing its duties unless duly authorised to do so.”
• “Confidential” is defined as meaning that which is expressed to be confidential either as regards particular information or as regards information of a particular class or description. “
• “In this regard, I note that many of the requested records have been expressed to be confidential by or for the Board.”
• “In light of the above, I am satisfied that disclosure of the requested records would adversely affect the confidentiality of proceedings protected under Section 33 of the 1988 Act.”
• “As further detailed below, I am also satisfied that the balance of legitimate public interests does not weigh in favour of disclosure of the requested records.”
52. Coillte’s new internal review decision included the following comments regarding its application of article 9(1)(c) of the AIE Regulations:
• “Article 9(1)(c) of the AIE Regulations provides that Coillte may refuse a request where disclosure of the information requested would adversely affect commercial or industrial confidentiality provided for in Irish or EU law to protect legitimate economic interests.”
• “The requested records include information obtained by Coillte in confidence and contain sensitive information developed in confidence on the commercial and industrial activities of Coillte and its joint venture partners undertaken in pursuance of legitimate economic interests.”
• “The requested records include details of or reflect legal and commercial advice obtained from third party advisors relating to the development phase of the Project, as well as information relating to possible joint venture options and partners. This information was provided to and analysed by Coillte in confidence and with the expectation that the information would be treated in confidence and would not be disclosed publicly.”
• “If this information is released, it is very likely, in my opinion, to prejudice the future supply of similar information to Coillte in as full and frank a manner, and in turn, prejudice Coillte’s ability to effectively fulfil its statutory mandate. It is also important in my opinion that Coillte continues to receive such information in the future. “
• “The market in which Coillte operates is highly competitive. Coillte’s competitors are private organisations that are not subject to the AIE Regulations. On this basis, Coillte places great importance on keeping confidential all information received from third parties in the performance of all its business functions. This is particularly so where such information is received during the development phase of its projects.”
• “Further, as already mentioned above, Coillte is subject to a statutory duty of confidence under Section 33 of the 1988 Act. This statutory duty of confidence protects from disclosure exempt confidential information obtained by Coillte, and expressly reflects the need and importance for it to protect such information received by it.”
• “As described above, the requested records contain financial, commercial and other information regarding the strategic development of Coillte’s projects, including information on possible risks, certain third party partners and the negotiating positions and considerations of Coillte in this regard.”
• “I consider that release of such information to the world-at-large could reasonably be expected to prejudice the competitiveness of the Project as at the relevant date of the Remitted Request, and would therefore have resulted in a material financial loss to Coillte and/or its partners. In addition or in the alternative, I consider that release could prejudice the competitive position of Coillte and/or its partners in the development of such projects.”
• “In light of the above, I am satisfied that disclosure of the requested records would adversely affect the commercial or industrial confidentiality of Coillte and its partners, which confidentiality is provided for in Section 33 of the 1988 Act to protect legitimate economic interests.”
• “As further detailed below and with careful consideration, I am also satisfied that the balance of legitimate public interests does not weigh in favour of disclosure of the requested records.”
53. Coillte’s new internal review decision included the following comments regarding its application of article 9(2)(d) of the AIE Regulations:
• “Under Article 9(2)(d), Coillte 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.”
• “I note that the AIE Guidelines provide that public authorities are not expected to invoke this protection for information unless there are good and substantial reasons for doing so. I also note that the Commissioner considers that Article 9(2)(d) should only be applied where grounds for refusal are otherwise not available.”
• “In the circumstances, while I consider that Articles 8(a)(iv) and 9(1)(c) apply to the requested records for the reasons outlined above, I also consider in the alternative that Article 9(2)(d) applies.”
• “As already accepted by the Commissioner, the requested records comprise internal communications of Coillte and its Board (with the exception of Record 5). I am satisfied that Article 9(2)(d) does apply to the remainder of the requested records which contain and/or reflect strategic considerations of a confidential and commercially sensitive nature relating to the development phase of the Project or other projects.”
54. Coillte’s new internal review decision included the following comments regarding its application of the public interest test in the context of articles 8(a)(iv), 9(1)(c), and 9(2)(d) of the AIE Regulations:
• “In considering the public interest generally, I have considered relevant factors for and against disclosure of the records, as set out below.
• “Factors in favour of granting access:
o the public interest in individuals being able to exercise their rights under the AIE Regulations to the greatest extent possible in order to access environmental information; and
o the public interest in environmental information being made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information.”
• “Factors in favour of refusing access:
o the public interest in protecting the confidentiality of the proceedings of public authorities where such confidentiality is protected by law, including proceedings concerning the internal operations of a public authority;
o the public interest in protecting commercial and industrial confidentiality where such confidentiality is provided for by law;
o the public interest in preventing the disclosure of internal communications of public authorities, taking into account the public interest;
o the public interest in persons being able to conduct commercial transactions without fear of suffering commercially as a result; and
o the fact that release of information under the AIE Regulations is deemed to be release to the world at large and the AIE Regulations place no restrictions on the subsequent uses to which such information may be put.”
• “In all of the circumstances, I am satisfied that the balance of legitimate public interest does not weigh in favour of disclosure of the requested records, given Coillte’s role and duties within its commercial remit as provided for under the 1988 Act.”
55. During the course of this review, my investigator invited Coillte to make submissions regarding its application of article 8(a)(iv), 9(1)(c), and 9(2)(d) of the AIE Regulations. In doing so, she out the requirements of articles 8(a)(iv), 9(1)(c), 9(2)(d) and 10 of the AIE Regulations. Regarding article 9(1)(c), she notified Coillte that she did not consider Section 33 of the Forestry Act 1988 to be a provision of law providing for commercial or industrial confidentiality to protect a legitimate economic interest and that it may wish to consider the equitable duty of confidence (see Megarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41 and Fennelly J in Mahon v Post Publications Ltd [2007] 3 IR 338). She further commented:
“It is my present view that that if the information that is the subject of a AIE Request is in fact confidential or secret i.e. has the necessary quality of confidence about it, the equitable doctrine of confidence can be relied upon in considering the application of article 9(1)(c) of the AIE Regulations. This requires an analysis of the contents of the information at issue. Factors that are relevant in respect of assessing whether the information is confidential, and should be considered by Coillte in its submissions to this Office should it seek to rely on the equitable duty of confidence are:
(i) The test is objective and not subjective. This means that it is not relevant that the public authority thinks that the information is confidential. The test is whether a reasonable person would regard the subject matter as confidential. Would a reasonable person in the position of the parties regard the information as confidential?
(ii) There must be some value to the party claiming confidentiality in the information being treated as confidential;
(iii) The age of the information is a relevant factor to consider when determining its confidentiality. This is done on a case-by-case basis. The older the information the less likely it is to be confidential.
(iv) If the information is in the public domain, that is, it is generally accessible by the public, then it is not confidential.”
56. She also noted that “it is open to Coillte to have recourse to another legal basis in applying article 9(1)(c) of the AIE Regulations, should it wish to do so. If so, please provide all relevant details.”
57. Furthermore, given the passage of time and age of the records (which date from 2013 to 2018) she asked that this be addressed in the context of Coillte’s consideration of the application of articles 8(a)(iv), 9(1)(c), 9(2)(d) and article 10, and included the following comments:
“It is important to note that a review by this Office is de novo, which means that it is based on the circumstances and the law at the time of the Commissioner’s decision in this appeal. I note that the records identified as relevant are dated from 2014 [sic] to 2018. Therefore, where relevant, please consider the passage of time in applying the exemptions, in addressing any “adverse effect” on disclosure in respect of the exemptions being relied upon, and in carrying out the public interest test…. It may also be relevant for Coillte to provide an update on the Project relevant to the appellant’s request.”
58. Coillte’s submissions included the following comments regarding its application of article 8(a)(iv) of the AIE Regulations:
• “5.1 Article 8(a)(iv) is a mandatory provision, requiring that Public Authorities ‘shall not’ make environmental information available where disclosure of that information would adversely affect ‘iv) without prejudice to paragraph (b), the confidentiality of 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)’.”
• “5.2 This provision arises from Article 4(2) of the Directive, which permits the refusal of information where the disclosure of that information would adversely affect ‘(a) the confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law.’”
• “5.3 This exemption provision has recently been examined by Hyland J in The Commissioner for Environmental Information -v- Coillte Teoranta and People Over Wind [2023] IEHC 227, where the Court noted that the approach adopted by the Regulations was to require mandatory refusal by the public authority where the requisite conditions were met (see paragraph 16). The Court continued:
‘107. Bearing in mind the purpose of Article 4(2)(a), I turn now to consider the wording of Regulation 8(a)(iv). Even absent the interpretative obligation, the natural meaning of Regulation 8(a)(iv) is, in my view, that a public authority shall not make available environmental information (subject to the balancing exercise) where disclosure would adversely affect the confidentiality of their proceedings, provided that confidentiality is otherwise protected by law. I place emphasis on the word “that”, before the word “confidentiality”. The presence of the reference to “that” confidentiality necessitates an inquiry into the identity of the owner of the confidentiality over proceedings in a context other than an AIE request. It is only if they otherwise enjoy protection of their confidentiality in a non AIE context that they can deploy that protection to resist disclosure in the AIE context. 108. On this approach, any inquiry is commenced by considering the protection enjoyed by the public authorities the subject of the request in a non AIE context. If they do not enjoy protection, the inquiry is at an end. Contrary to Coillte’s argument, the question is not whether the confidentiality of any public authorities is otherwise protected by law but whether the public authority looking to be protected from an AIE request already enjoys protection in another legal context. ’” (Coillte’s emphasis)
• “5.4 To further contextualise the submission under this section, it is also worth referring to the CJEU judgment on the exemption provision of C-204/09 Flachglas Torgau GmBH v Bundesrepublik Deutschland. In this case, the Court was asked to consider, in essence, whether the exemption provision must be interpreted as meaning that specific provisions of confidentiality is required to be adopted in respect of the proceedings of public authorities. The Court stated that the inclusion of the words “provided for under national law” implied a clear desire by the European Union legislature that the exemption provision would relate only to ‘an express provision’ that exists in national law ‘with a precisely defined scope and not merely a general legal context’. The Court continued:
‘63. None the less, public authorities should not be able to determine unilaterally the circumstances in which the confidentiality referred to in Article 4(2) of Directive 2003/4 can be invoked, which means in particular that national law must clearly establish the scope of the concept of ‘proceedings’ of public authorities referred to in that provision , which refers to the final stages of the decision making process of public authorities.’” (Coillte’s emphasis)
• “5.5 Based on the above case-law, I note that in order for Article 8(a)(iv) to apply to a particular circumstance the following elements must be satisfied: i. There must be proceedings to which the information relates; ii. Those proceedings must have an element of confidentiality that is protected by law; iii. To disclose the information at issue would adversely affect that confidentiality.”
• “5.6 This test reflects both the questions posed in the [the Investigator’s correspondence], as well as recent OCEI decisions, such as Mr X and Department of Environment, Climate and Communications (OCE155577-C6K6Z9) wherein the Commissioner confirmed that, in respect of element (iii), 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.’”
59. In respect of its consideration regarding the identification of proceedings concerned in the case and the basis on which it is of the view those proceedings to amount to the final stages of the decision-making process, Coillte stated:
• “5.8 The proceedings at issue in this appeal relate to ongoing deliberations of the board of Coillte in relation to its immediate and medium-term strategy for land use and Renewable Energy development, including at the Cullenagh site in Co. Laois.”
• “5.9 I note that the concept of ‘proceedings’ is not defined by either Regulations or Directive, but that the OCEI relies on the Flachglas decision to argue that it relates to the “final decision-making process of public authorities” only. It is submitted that the OCEI’s reading of this case overlooks a crucial element of the paragraph 63 of that judgment (quoted above), which is that the CJEU found that ‘national law must clearly establish the scope of the concept of ‘proceedings’ of public authorities referred to in [article 4(4)(a)] , which refers to the final stage of the decision-making process’. [Coillte’s emphasis] Accordingly, it is submitted that placing a greater emphasis on the words ‘the final stage of the decision-making process’ is a misunderstanding of the actual intent of the CJEU’s ruling, which is that it is a matter for national law to determine the concept of “proceedings”, but which should not be unduly broad. In this respect, it is worth noting the views of Advocate General Sharpston in Flachglas (which was not departed from), who suggested proceedings be defined by reference to the ‘expression of views and discussions of policy options in the context of decision-making procedures’:
‘83. In the spirit of restrictive interpretation applicable to the Directive as a whole, and to Article 4(1) and (2) in particular, it seems to me that the concept of ‘proceedings of public authorities’ should be confined, at the broadest, to expressions of view and discussions of policy options in the context of decision-taking procedures within each such authority . The concept should, of course, not be dependent on the form of the proceedings (written or oral).’” (Coillte’s emphasis)
• “5.10 The other case referred to in the [Investigator’s correspondence] C--60/15 Saint-Gobain Glass Deutschland v Commission, supports this reasoning. In this respect, the Court distinguished between the administrative process that proceeds a deliberative proceeding, which does not normally fall within the scope of the provision, and the deliberative proceeding itself:
‘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.’” (Coillte’s emphasis)
• “5.11 It is therefore submitted that the use of the term “the final stages of the deliberative process” in Flachglas must be read consistently with Saint-Gobain Glass Deutschland to mean the whole deliberative process that follows any preliminary administrative proceedings.”
• “5.12 In further support of this position, it is submitted that the combined reading of Article 8(a)(iv), which protects the confidentiality of the proceedings of public authorities, Article 9(2)(c), which prevents the release of material in the course of completion or unfinished documents or data, and 9(2)(d), which concerns the internal communications of public authorities, indicates a clear intention on the part of EU Legislatures that the Regulations would cover the entirety of the deliberative and decision-making processes of public authorities. In this respect, when a teleological and purposive interpretation of the AIE Regime is adopted, Article 8(a)(iv) should not be read restrictively such that there is any gap in the protection afforded to such deliberative processes, save as may arise from the application of Article 10. In this respect, to the extent that the article 9 exemption provisions might not be applicable to certain stages of the deliberative process, it is submitted that Article 8(a)(iv) would likely have been intended to be broad enough to apply in those circumstances.”
• “5.13 In light of this understanding of concept of proceedings set out in the case law, it necessary to note that Coillte is a private company formed under the Companies Act 1963 by the predecessor of the Minister of Agriculture, Food and the Marine pursuant to a power afforded to him by section 9 of the Forestry Act, 1988. As a private company, Coillte is both subject to the provisions of the 1988 Act and company law, governed today by the Companies Act 2014. In respect of its general obligations, Coillte is required by section 12 of the 1988 Act to, inter alia, carry on the business of forestry and related activities on a commercial basis (s.12(1)(a)) and to utilise and manage resources available in a manner consistent with its objectives. As a private company, these objects must be furthered within the context of s.160 of the 2014 Act, which provides:
‘160. (1) The directors of a company may meet together for the dispatch of business, adjourn and otherwise regulate their meetings as they think fit.
(2) Questions arising at any such meeting shall be decided by a majority of votes and where there is an equality of votes, the chairperson shall have a second or casting vote.’”
• “5.14 It is therefore submitted that, given the deliberations as to Coillte’s strategies and planning with respect to renewable energy projects and land use take place at board meetings convened in accordance with s.160(1), these constitute proceedings for the purposes of the AIE Regulations, as defined by National Law. As noted above, Coillte’s immediate and medium-term renewable energy strategy is currently being deliberated at Board meetings on an ongoing basis, with specific reference to the records, which contain the information that is the subject of this appeal.”
60. In respect of its consideration as to whether the proceedings are confidential and where that confidentiality is provided for / protected by law, Coillte stated:
• “5.16 As noted above and in the Decision, Coillte has a statutory obligation to carry out the business of forestry and related activities on a commercial basis on behalf of the state, and in furtherance of these functions it seeks to develop certain projects with a view to advancing the Government’s renewable energy objectives. It operates as a private company pursuant to the terms of the 2014 Act as well as in accordance with the objectives and purposes of the 1988 Act. In this respect, the Decision referenced the terms of s.33 of the 1988 Act as evidence of the confidential nature of the proceedings of Coillte, namely the board meetings. This section provides: 33.—(1) A person shall not disclose confidential information obtained by him while performing duties as a director or member of staff of, or an adviser or consultant to, the company unless he is duly authorised to do so. (2) A person who contravenes subsection (1) shall be guilty of an offence.” (Coillte’s emphasis)
• 5.17 The Decision proceeded to note that the records that contain the information that is within the scope of this request are Board Minutes of meetings, as well as papers prepared for those meetings and which are therefore considered confidential to and for the Board, on behalf of Coillte. Please note that the confidentiality being referred to in the Decision in this context relates to the fiduciary duties of Company Directors, which include a fiduciary duty of confidentiality in respect of the business of the Company. That fiduciary duty of confidentiality owed by Company officers to Coillte is put on a statutory footing by s.33 and depends on the existence of there being confidential information. The confidential information relevant to the board meetings that are relevant to this appeal is confidential by reason of its commercial sensitivity.
• “5.18 The concept of commercial confidentiality is expressly recognised and codified in the Freedom of Information Act 2014, as amended, at section 36(1), which provides;
‘36. (1) Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains— (a) trade secrets of a person other than the requester concerned, (b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, (c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.’”
• “5.19 It is important to again stress that Coillte is both a public body that performs statutory functions as such, as well as a private entity that benefits from the commercial confidentiality set out in section 36. In particular, if a non-exempt public body under the FOI Act received, for example, a request that concerned records that contained financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to Coillte, to whom the information relates, or could prejudice the competitive position of Coillte in the performance of its functions under the 1988 Act, it would be open to that body to refuse access to those records. Accordingly, while it is accepted that, following the above referred 2023 judgment of Hyland J, it is not open to Coillte to rely on provisions of the FOI Act that are addressed specifically to the functioning of FOI bodies, it may, nevertheless, through Article 8(a)(iv) rely on exemption provisions set out in the FOI Act that apply generally to create confidentiality in respect of certain classes of information, where those classes of information give rise to confidentiality of Coillte’s proceedings. It is therefore submitted that it is open for Coillte to rely on s.36 of the FOI Act in this context.”
• 5.20 Without prejudice to, and indeed in support of this position, the Common law doctrine of commercial confidentiality (also known as the equitable doctrine of confidentiality) was set out in Coco v AN Clark [1969] RPC 41 and approved in Irish law in House of Spring Garden v Point Blank [1984] IR 611. In the latter case, the Court stated: ‘Three elements are normally required if, apart from a contract, a case of breach of confidence is to succeed. First, the information itself … must have ‘the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised [or threatened unauthorised use] use of that information to the detriment of the party communicating it.’”
(i) The necessary quality of confidence
• “5.21 The information sought by the Appellant relates to high commercially sensitive information, including but not limited extensive and detailed information relating to Coillte’s commercial strategy with respect to renewable energy and risk, project pricing and broader financial considerations, tendering options, and strategic interactions between Coillte and other public bodies and private entities. While the information was prepared for Board meetings that took place between 7 and 12 years ago, as noted above Wind Farm developments take several years to reach fruition and the information is still relevant today in terms of project viability, proportional cost, public body engagement and risk. It is therefore submitted that it constitutes commercially sensitive information, and, furthermore, certain matters would meet the higher threshold of trade secrets, as well as relate to potential contract negotiations, as protected by s.36(1) of the FOI Act. As can be appreciated having regard to the nature of the records (which exclusively include summaries of key information only) the totality of the information set out is commercially confidential, having the ‘necessary quality of confidence’.”
• “5.22 Furthermore, in Faccenda Chicken Ltd v Fowler [1986] IRLR 69, the leading case on commercially confidential information, the court found that an employee would encounter three categories of information that may give rise to an obligation of confidentiality:
(1) There was information which, because of its trivial character or its easy accessibility from public sources of information, could not be regarded by reasonable persons or by the law as confidential;
(2) There was information which the servant must treat as confidential, either because he was expressly told it was confidential, or because from its character it obviously was so;
(3) There were specific trade secrets so confidential that they could not lawfully be used for anyone's benefit but the master's”
• “5.23 It is submitted that all the information requested clearly falls within the second category of the Fowler test, being information whose character is “obviously” confidential. However, arguably in respect of Coillte’s business strategy and other matters, information set out in the records may constitute trade secrets. This category of information has been defined broadly in European Law by Directive 2016/943, which provides at Article 2(1) that:
‘(1) ‘trade secret’ means information which meets all of the following requirements: (a) it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) it has commercial value because it is secret; (c) it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret;’”
• “5.24 In respect of the elements of the test set out in Directive 2016/943, it is confirmed that the matters in the records that may constitute trade secrets are not generally known among or readily accessible to any persons, save the Board and its advisors. Further, the information pertains to large-scale renewable energy projects and strategy, which has the potential of generating significant value if delivered. The delivery of these strategies and project is largely dependent on them remaining confidential until the point at which public consultations are conducted (as set out in greater detail below). Finally, it is clear that reasonable steps have been taken to ensure that confidentiality of this information has been maintained through, inter alia, statutory, contractual, and common law duties of confidence in respect of proceedings at Board meetings.”
(ii) Imparted in circumstances imposing an obligation of confidence
• “5.25 Returning to the second element of the test set out in House of Spring Gardens, and as noted directly above, the information was imparted in the course or for the purpose of confidential Board meetings to persons bound by statutory, contractual, and common law duties of confidence.”
(iii) Unauthorised use leading to detriment
• “5.26 In terms of the third element of the House of Spring Gardens test, the threatened unauthorised use of the confidential information arises from the present request, wherein the requester is seeking to use the AIE Regulations to circumvent the protection offered by both the common law and statutory doctrines of commercial confidential, at both EU and National Level, in respect of the information. The specific detriment that may arise is discussed expansively throughout this submission. However, by way of summary, it is anticipated that the release of the confidential information may jeopardise the deployment of Coillte’s renewable energy strategy.”
61. In respect of its consideration as to how disclosure of the information at issue contained in each of the records would adversely affect the confidentiality of the proceedings, Coillte stated:
• “5.27 As set out above, the proceedings in question relate to the deliberations of the board of Coillte in respect of its future planning and land use strategy for renewable energy at sites owned and managed by it, including the Cullenagh site, with a view to achieving its documented goal of delivering 1GW of renewable energy by 2030 through FuturEnergy Ireland. These deliberations are ongoing and the information contained in the records is of direct relevance to matters currently being discussed at meetings, where both the information and meeting themselves benefit from commercial confidentiality.”
• “5.28 Therefore, to release information that is the subject of confidential proceedings would breach that confidentiality and eliminate the possibility that Coillte could fully ventilate all views, opinions and options in confidence before the finalisation of its plans and strategies. In this respect, while Coillte is prohibited from considering the interests of the applicant for making a request, it can consider the applicant’s identity when demonstrating a clear link between the release of the information and the adverse effect anticipated. The applicant in this case, People Over Wind, describe themselves as an organisation “concerned with the size, scale and perceived negative impacts of windfarms” and have historically objected to wind farm developments throughout the consenting processes, including up to judicial review proceedings in respect of the Cullenagh project (see for example An Coimisiún Pleanála ref: RL11.RL3482; [2015] IEHC 271; [2015] IECA 272). Accordingly, it is submitted that the release of information to organisations such as this particular requester, could result in the gathering of opposition to plans and strategies that are, at this moment, still under review and deliberation. Please note however, that Coillte is in no way stating that its plans and projects should not be subject to public scrutiny and indeed, upon the crystallisation of its strategy and any project arising therefrom, the Appellant, along with other members of the public,will have ample opportunity to comment, both on a general level and through public participation in any project level assessments that might follow, in accordance with the law. However, at this particular point in time, it is not appropriate to disclose the requested information, which is still the subject of ongoing deliberations by Coillte.”
62. In respect of its consideration of the public interest test in the context of article 8(a)(iv) of the AIE Regulations, Coillte stated:
• “5.29 I note that Article 10(3) requires that decision makers consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. In the Decision, the decision maker undertook a combined assessment for the purposes of Article 10(3) for all exemption provisions relied upon and in this respect, I will do so here, given that the overriding reasons of public interest in favour of refusing the information sought are common across the three exemption provisions.”
• “5.30 It is accepted that there is a general public interest in favour of the release of environmental information, as set out in the recitals to the Directive. Furthermore, this objective is heightened in cases concerning environmental decision making, including in relation to prospective wind farm projects. It is also accepted that the Appellant actively participates in environmental decision making, and that all these matters weigh in favour of the release of the information.”
• “5.31 However, on balance, it is not accepted that the information contained within the records would meaningfully further the goals of public participation in, or transparency of environmental decision making. Nor, it is argued, would the release of the information advance the Appellant’s, or any other person’s knowledge of the relevant project for the purposes of participation in environmental decision making beyond that which is set out in the Decision, this submission or which is already in the public sphere. Indeed, it is submitted that the commercially sensitive information would have little to no bearing on any future project level assessments that might arise depending on the conclusions of Coillte’s current deliberations, and of which the Appellant will have full rights of participation in as guaranteed by the measures implementing the Aarhus convention. In this respect, I note the Commissioner’s decision of Mr Ken Foxe and Department of the Taoiseach (OCE-116505-D3N5Q7), wherein he found that there was a lesser public interest in releasing information that would not advance an applicant’s understanding of the nature and scope of a project:
‘57. Overall, despite being mindful of the requirement of the Directive and the AIE Regulations to interpret grounds for refusal restrictively, I consider that the public interest in protecting key north-south institutions and working relations, exceeds the public interest in the disclosure of the withheld excerpts. I do not think that information in the excerpts would add in any significant way to the ability of the requestor, or the public, to understand the nature or scope of the project. I am also satisfied that notwithstanding the time that has passed since this information was created, that it’s protection by the exemption remains justified, given the contents of the information sought, and that it relates to the sensitive and important area of North-South cooperation and the functioning of the North South Ministerial Council.’”
• “5.32 The factors that weigh against release are, it is submitted, significant and clear, as follows.”
• “5.33 The world is facing a climate emergency.”
• “5.34 Coillte is a public body charged with carrying on forestry and related activities on behalf of the state, which will further the government’s renewable energy objectives and binding obligations. As the largest landowner in the state, Coillte’s ability to develop a strategy for delivering renewable energy is of direct relevance to the state’s overriding climate objectives and obligations. In particular Coillte aims to contribute 1GW of renewable energy by 2030, through FuturEnergy Ireland. In order to do so effectively, Coillte must have the ability to maintain confidentiality over its proceedings to deliberate on its strategy, including with respect to specific projects, or it will be hindered in its ability to achieve these lofty goals. In the absence of such confidentiality over its proceedings, internal communications and debate, which would normally be subject only to the consideration of members of Coillte’s board and its advisors, would become the subject of public forums. This would stifle the ability of experts and board members to set out and test the feasibility of options and would eliminate the possibility that Coillte would have a “safe space” for the consideration of is business. More specifically, the early release of information on Coillte’s as of yet unfinalised wind energy strategy to People Over Wind would allow that organisation, or other similar organisations that might gain access to records, to prepare challenges to any contemplated projects, including marshalling local opposition, thereby distorting the perception of local and national views in respect of any potential/debated projects. This could conceivably have the effect of undermining or overwhelming public consultations and assessments as administered by the appropriate public authorities. Furthermore, the premature publication of draft/unfinalised plans may lead to confusion or stress for local residents who may not appreciate that that the proposals are yet to be confirmed and subject to change. Accordingly, significant time, effort and resources may be devoted to reviewing and forming a position on strategies and projects that may very well not be pursued by Coillte.”
• “5.35 The likely cumulative effect of this would be to jeopardise the possibility of fair procedures being provided for in any future processes related to potential projects and as a result, undermine the principles of access to, and fair participation in environmental decision making that the Convention seeks to give effect to. Furthermore, this would hinder the prospect for delivering the projects, resulting in significant financial loss for Coillte and the state, and would jeopardise the achievement of renewable energy and decarbonisation goals.”
• “5.36 It is therefore submitted that, in this context, the public interest in preserving the confidentiality of Coillte’s proceedings with respect to the development of its renewable energy strategy, including information on the Cullenagh site, outweighs the public interest served by the release of the requested information at this point in time. This is particularly the case given that the information sought would, it is submitted, do very little to further participation in environmental decision making, given its nature in relation to commercial matters, and, the fact that the Appellant will have ample opportunity to participate in future project level assessments pursuant to the terms of national legislation giving effect to the Aarhus convention should they arise.”
• “5.37 In respect of this latter point, I would refer to the OCEI’s decision of Áine Ryall and the Department of the Taoisech (CEO18/0010), where the Commissioner suggested that the public interest in favour of disclosure is lessened when there will be a later opportunity to participate in the decision-making process:
‘I understand that the essence of the appellant’s public interest argument is this: the public interest in the public having an opportunity to participate in an informed way in any legislative process that could restrict access to justice in environmental matters outweighs the interests served by refusal in this case. In considering whether I agree with this, I am mindful of the fact that the legislative process, if and when it formally commences in relation to this issue, will provide opportunities for public scrutiny through its usual processes.’” (Coillte’s emphasis)
63. Coillte’s submissions included the following comments regarding its application of article 9(1)(c) of the AIE Regulations:
• “6.1 Article 9(1)(c) of the AIE Regulations is a discretionary ground for refusal and permits a public authority to refuse access to information where the disclosure of the information would adversely affect ‘(c) commercial or industrial confidentiality, where such confidentiality is provided for in national or Community Law to protect a legitimate economic interest.’ In Protect East Meath Limited & Department of Education (OCE-143310-F1T0W4), the OCEI set out the following elements of for this provision to apply. These have been set out as follows:
1. The information must be commercial or industrial in nature.
2. The confidentiality of the information must be provided for by law.
3. The confidentiality of the information is protecting a legitimate economic interest.
4. The confidentiality would be adversely affected by disclosure.”
64. In respect of its consideration as to whether the information at issue is commercial or industrial in nature, Coillte stated:
• “6.3 The information at issue primarily concerns commercial matters relevant to Coillte’s functions under the 1988 Act to undertake forestry and related activities on a commercial basis on behalf of the state. However, instances of industrial information are also present in the records, relevant both to Coillte and third parties.”
• “6.4 Furthermore, and as noted above, ESB is Coillte’s partner in FuturEnergy Ireland in respect of the development of all wind energy projects on Coillte lands. The interests of both these entities are discussed in the records, and therefore their rights to commercial confidentiality over the information must likewise be considered. In this respect, Coillte would not object to any proposed consultation in this Appeal with ESB or FuturEnergy Ireland, should the Commissioner consider it necessary.”
65. In respect of its consideration as to where the confidentiality of the information at issue is provided by law, Coillte stated:
• “6.5 In respect of question 2(a) – (c), please see the analysis above at paragraphs 5.15 - 5.26 which addresses several relevant sources of statutory, common law, and equitable duties of commercial confidentiality that arise in respect of this information. Those paragraphs also address the relevance of s.33 of the 1988 Act to the decision maker’s analysis.”
66. In respect of its consideration as to whether the confidentiality is required to protect a legitimate economic interest(s), Coillte stated:
• “6.6 As noted above, the information is relevant to Coillte’s immediate and medium-term renewable energy and land use strategy, including with reference to the viability of specific individual projects. This strategy is developed in accordance with Coillte’s statutory functions to undertake forestry and related activities on a commercial basis on behalf of the state. Notwithstanding that this information was prepared between 7 and 12 years ago, it remains relevant to ongoing considerations today in light of the fact that renewable energy projects take a number of years to obtain all necessary consents and funding to ultimately be deployed (in this respect, see OCEI decision Mr Ken Foxe and Department of the Taoiseach (OCE-116505-D3N5Q7), paragraph 57 – quoted above, second underline; Right to Know CLG and Data Protection Commissioner (OCE134884-B3R1N8)). Accordingly, it is submitted that the confidentiality directly relates to Coillte’s economic interests, which in turn are the economic interests of the state.”
67. In respect of its consideration as to how the economic interest(s) identified, and thereby its confidentiality would be adversely affected by the disclosure of the information at issue, Coillte stated:
• “6.7 …please see the analysis above at paragraphs at 5.27 - 5.28, as well as relevant sections of the public interest test set out at 5.29 - 5.37 which is applicable…”
• “6.8 As noted above, the commercial confidentiality of ESB and FuturEnergy Ireland also arise in respect of the records, and as it would not be appropriate for Coillte to comment on the interests of those bodies, it may be necessary to canvas their views on this matter.”
68. In respect of its consideration of the public interest test in the context of article 9(1)(c) of the AIE Regulations, Coillte stated:
• “6.9 In relation to the application of the public interest test to this exemption provision, the comments set out at 5.29 - 5.37 above are repeated.”
• “6.10 Of specific and additional relevance to the public interest test undertaken in respect of this exemption provision is the public interest of protecting Coillte’s entitlement to commercial confidentiality and the Constitutionally recognised right to earn a livelihood. In this respect, Coillte is a private company, and therefore a legal person entitled to rights and subject to obligations. As noted above, the premature release of the requested information could facilitate the generating of early opposition to, and undermining of, any project that FuturEnergy Ireland DAC may seek to pursue on Coillte’s lands in furtherance of its strategic partnership with ESB. This could undermine the project level assessments and consultations and thereby jeopardise the possibility of obtaining permission for the projects. Given that Coillte performs its functions for an on behalf of the State, the potential financial loss not only arises in respect of Coillte, but also for the State and Taxpayer.”
• “6.11 To permit the Appellant to undermine Coillte’s rights in this respect simply by virtue of the fact that it is also a public body for the purposes of the AIE regulations would constitute an attempt to undermine recognised and integral principles of trade.”
• “6.12 Equally, and as noted above, considerations as to the rights of commercial confidentiality enjoyed by ESB and FuturEnergy Ireland require consideration.”
69. Coillte’s submissions included the following comments regarding its application of article 9(2)(d) of the AIE Regulations:
• “7.1 Article 9(2)(d) of the Regulations permits the refusal of information where it “(d) concerns internal communications of public authorities, taking into account the public interest served by the disclosure.” While all records were refused on the basis of Article 8(a)(iv) and 9(1)(c), the Decision decided not to apply Article 9(2)(d) to record 5. On review, Article 9(2)(d) applies equally to the information contained within this record, it being an extract of Board minutes from a Board meeting that took place on 2 October 2013 shared by internally email.”
• “7.2 In light of this, I shall address the test for the application of Article 9(2)(d) with reference to the information contained in all records. In this respect, I note that to rely on this provision it must be shown that: 1. The information at issue is an “internal communication” such that it falls within the scope of the exemption, 2. There is a reasonably foreseeable risk that disclosure would undermine the interest sought to be protected, and 3. The balance of public interest must be considered, as required by Article 10(3).”
70. In respect of its consideration as to why it is of the view that each of the records at issue concern internal communications, Coillte stated:
• “7.4 The leading case on the application of Article 9(2)(d) is C-619/19 Land Baden-Wurttemberg v DR. In that case the Court noted that determining whether something constituted an “internal communication” required consideration of both words:
(i) “Communication” means “information addressed by an author to someone… such as “members” of an administration or the “executive board” of a legal person” (see paragraph 37)
(ii) “Internal” includes “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” (paragraph 53).
• “7.5 The communications relevant to this Appeal are both the Board Minutes of Coillte’s Board, which summarise discussions between board members, as well as board papers prepared for, and addressed to the Board at those meetings. These discussions and documents fall within the scope of “information addressed by an author to someone” including an executive board. Furthermore, in respect of the Board minutes, part of their purpose is to serve as a reminder to the Board of previous discussions, and I confirm that the board papers are similarly filed for this purpose. As such, they constitute a communication from the drafter of the minutes to the Board, for its review at subsequent meetings. Indeed, in Mr X and Electricity Supply Board (OCE-136305-G7D8R3), the OCEI found that the provision applied to a request for the release of Board Minutes on the basis that they ‘consist[ed] of communications to the Chief Executive Officer or the Board of the ESB, discussing business strategies and proposed policies and approaches to certain business matters. ESB has also confirmed that the information has not been disseminated outside of ESB.’ It is submitted that a similar finding should be made here.”
• “7.6 In terms of the requirement that the communications be internal insofar as they have not left “that authority’s internal sphere”, they are Board papers for, and minutes of confidential board meetings, prepared for the review and assessment of the Board only. It is submitted that, in the context of a private company, there is no more “internal sphere” than that of the executive board meeting pursuant to s.160 of the 2014 Act, particularly in light of s.33 of the 1988 Act.”
• “7.7 Finally, I would also refer to the Guidance for Public Authorities and others on the Implementation of the Regulations, prepared by the then Minister for the Environment, Climate and Communications, which provides that Article 9(2)(d) “could include internal minutes or other communications, between officials or different public authorities, or between officials and Ministers.”
71. In respect of its consideration as to whether disclosure would undermine the interest being protected and the public interest test in the context of article 9(2)(d), Coillte stated:
• “7.8 As noted above, to apply Article 9(2)(d), there must be a reasonably foreseeable risk that the disclosure of the information could specifically and actually undermine the interests being protected. It is noted that the interest being protected by this provision relates to requirement that bodies be given private room to contemplate, communicate and in particular express views frankly and honestly without oversight from the public. In this respect I note the comments of the OCEI in Colman O’Sullivan, RTE and the Office of Public Works (CEI/15/0022): “In my view, article 9(2)(d) is intended to provide a discretion to refuse access to the records of the kind of communications which flow within organisations, when there are real grounds for believing that disclosure of such records would discourage the frank internal expression of views.”
• “7.9 Equally in Mr X and Electricity Supply Board (OCE-136305-G7D8R3), the Commissioner agreed with the proposition of the public authority that the purpose of the exemption was to facilitate internal debate without public scrutiny:
‘74. I recognise that public authorities do need a safe space to develop ideas, debate issues and reach decisions away from external scrutiny and I understand that this applies to the nature of the information in this case. I consider that the ESB should be able to maintain the confidentiality of its thinking in these matters, as stated, “past or present”, for example, “vis-à-vis how to deal with those with whom it may have to negotiate and seek to reach agreement and/or arbitrate or conduct litigation”. In this case, I consider that the ‘safe space’ arguments made by the ESB are weighty factors in favour of maintaining the exception, as the freedom to formulate business strategies and approaches without fear that they would be disclosed into the public domain at a later date is deemed necessary by the ESB for effective business operations.’” (Coillte’s emphasis)
• “7.10 The internal debates and discussions that are summarised in the Board minutes are relevant and under active consideration today by Coillte, informing its current discussions in respect of its renewable energy and land use strategy. Indeed, it is submitted that one of the main purposes of maintaining board minutes, and indeed retaining past board papers, is to facilitate the easy recalling of business and matters decided upon in previous Board meetings that are relevant to present and future matters. In this respect, the disclosure of these minutes into the public domain would undermine ongoing discussions within Coillte in respect of the specific projects being discussed. Further, it would also cause a chilling effect, in that Coillte may be less willing to explore novel and innovative ideas for fear that such would become publicly available before all issues have been considered and addressed. This, in turn, could generate significant public opposition to novel proposals that Coillte may still be exploring. This could likewise have an adverse and unjust effect on Coillte’s reputation.”
• “7.11 In addition, and as noted above at 5.28 and 5.34, the Appellant in this case, People Over Wind, have historically objected to wind farm developments throughout the consenting processes, including up to judicial review proceedings in respect of the Cullenagh Project. Accordingly, it is submitted that the release of information to this particular requester, including persons associated with it, would result in the martialling of pre-mature opposition to plans and strategies that are, at this moment, still under review and deliberation. Please note however, that Coillte is in no way stating that its plans and projects should not be subject to public scrutiny and indeed, upon the crystallisation of its strategy, this Appellant will have ample opportunity to comment, both on a general level and through public participation in any project level assessments that might follow. However, at this particular point in time, it is not appropriate to disclose the requested information which is still subject to internal communications and deliberations.”
• “7.12 In relation to the application of the public interest test to this exemption provision, the comments set out at 5.29 - 5.37 and 6.9 - 6.12 above are repeated.”
• “7.13 Of specific and additional relevance to the public interest test undertaken in respect of this section is the public interest of guaranteeing the right of Coillte’s Board members to communicate views and opinions frankly within its internal sphere without public scrutiny. In this respect, I note the views of the OCEI, as set out in several of its decisions, that there is a “strong public interest in creating a protected space for public authorities to think in private, engage in reflection, pursue free and frank internal discussions, and develop its views.” (see for example Right to Know CLG and Data Protection Commissioner (OCE-134994-B3R1N8).”
• “7.14 I also note the comments of the CJEU in Land Baden noted at paragraph 65: ‘In particular, if, in the light of the objective of creating for public authorities, a protected space in order to engage in reflection and to pursue internal discussions, information contained in an internal communication could properly not be disclosed on the date of the request for access, a public authority may, on the other hand, be led to take the view that, on account of its age, the information has become historical and that it is accordingly no longer sensitive, where some time has passed since it was drawn up…’” (Coillte’s emphasis)
• “7.15 In light of this, it is of significant relevance that the information that is contained in the records constitutes summarises of past discussions that are currently the subject of deliberation and that there is a recognised and significant public interest in permitting these communications to be made without public scrutiny, both to permit Coillte a private sphere to engage in reflection and internal discussion, as well as to afford it an the space needed to further its renewable energy goals. Furthermore, as noted throughout this submission, Coillte’s renewable energy strategy will be the subject of project level specific debate in the context of the appropriate statutory processes, administered by the appropriate public bodies, when appropriate. As such, the Appellant will have the opportunity to engage at that stage.”
72. Coillte’s submissions outlined that it did not consider that article 10(1) applied in this case.
73. Coillte’s submissions included the following comments regarding its consideration of article 10(5) of the AIE Regulations and whether it would be possible to separate certain parts of each of the records concerned from other parts to be refused:
• “5.38 On review of the information, it is not considered possible to separate out certain parts of each record. Indeed, the Board papers and minutes contain brief summaries of only the essential information relevant to the discussions. As can be appreciated, it is precisely this essential information that benefits from the confidentiality.”
• “5.39 Strictly without prejudice to this position, it is noted that unlike the FOI Act, 2014, which sets out a right to “records”, the Regulations provide for a right to “information”. In this respect, it is submitted that if any relevant information that is not subject to an exemption provision could be distilled from the records and released, that information has, in fact, already been provided to the Appellant (1) in the schedule appended to the decision, which confirmed the dates on which the relevant project was considered by the Board, and (2) in all past decisions, including this submission, which I note may be given to the Appellant.”
74. Coillte’s submissions included the following comments in response to the Investigator’s comments regarding the de novo nature of a review by this Office and the age of the records (see above):
• “2.1 The [Investigator’s correspondence] states that ‘a review by this office is de novo, which means that it is based on the circumstances and the law at the time of the Commissioner’s decision in this appeal.’ Flowing from this, Coillte was requested to consider whether the passage of time has influenced whether the relevant exemption provisions still applied to the requested information, and if so, whether the public interest still weighed against their disclosure.”
• “2.2 It is understood that the OCEI’s interpretation of its review powers under Article 12 of the Regulations arises from the High Court judgment in M50 Skip Hire Recycling Limited v the Commissioner for Environmental Information [2020] IEHC 430 (See for example OCE-115477- R1Q9T3, 6 June 2024). In the M50 Skip Hire case, the court appeared to base its finding with respect to the Commissioner’s de novo review power on two sources: (1) the wording of Article 12, and (2) case law relating to the interpretation of a distinct provision under the Freedom of Information Act 2014, as amended.”
• “2.3 Coillte reserves its right with respect to the validity of this interpretation of Article 12 in the statutory appeal context under the AIE Regulations.”
• “2.4 However, without prejudice to this position, we confirm that it is Coillte’s view that the degree of confidentiality over the information that is the subject of this appeal remains the same as at the time of the original request, and indeed when the information first arose. As set out below, this position is equally true when applied to the balance of public interest with respect to the disclosure of the information. This is because the information that is contained within the records relates directly to on-going deliberations in relation to Coillte’s immediate and medium-term renewable energy and land use strategy, as well as being relevant to its strategic partnership with ESB for the carrying out of renewable energy projects through FuturEnergy Ireland. As can be appreciated, wind farm developments take a significant period of time to be realised and as a result information on those projects that may be over 12 years old (as is the case in respect of the oldest piece of information relevant to this appeal) will still be pertinent to the consideration of the deployment of those projects today. The records themselves constitute papers prepared for Board Meetings summarising matters on the agenda for deliberation, as well as Minutes of those meeting. The board papers were stored in an appropriate manner, along with minutes to facilitate easy recollection and referral of past business relevant to ongoing deliberations.”
75. On 18 September 2025, this Office provided both parties with a draft decision. In response, Coillte provided submissions to this Office. There is detail contained in those submissions, which this Office considers would have been more appropriately included in response to the Investigator’s earlier invitation to provide submissions. It was only at this late stage that Coillte identified further particular information which it considered to fall in/out of the scope of the review (in respect of Records 2, 3, 4, 13, 14, and 16) and referred to any particular information in the records and which it considered to also be commercially sensitive (in respect of Records 1, 2, 3, 4, 6, 9, 10, 13 – table provided setting out the information and reasoning).
76. Coillte stated “[i]n this respect, Coillte reiterates that the delivery of wind farm development takes a number of years, and accordingly information that is several years old remains pertinent and relevant to modern projects and strategies”. Coillte also stated that it considered it necessary to canvas the views of Futur Energy Ireland (FEI) as to whether any further information contained in the records would undermine its competitive position. Coillte stated that FEI confirmed that it is actively taking steps to revive and realise the project, with stakeholder consultations and new consent applications being planned, and the process currently being undertaken by FEI is to identify a grid connection route, and in this respect, it is actively engaging with landowners to enter into land agreements for that purpose. Coillte stated that FEI had identified further information in the records that is commercially sensitive and that, if released, would jeopardise these ongoing processes and negotiations. Coillte stated the submission is made on Coillte’s own behalf as well as on behalf of FEI.
77. Coillte submitted that if the further information to which it had referred was not considered by the Commissioner to be commercially sensitive and protected by article 9(1)(c), it should be withheld under article 9(2)(d) of the AIE Regulations. Regarding the application of the public interest in respect of article 9(2)(d), Coillte commented:
“…in the application of the public interest test, the Commissioner proposes to find that the public interest would be best served through the release of the Category A information, rather than its refusal. In particular, [at identified paragraphs], the Commissioner’s proposed reasoning is due primarily to the fact that Coillte had not identified specific information, and how its disclosure of that information might reasonably foreseeably cause an adverse effect or harm relevant to the public interest.
It is submitted that the Commissioner has misstated the requirements of the public interest test under Article 10(3) in respect of this provision. In this respect, in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, which is referred to with approval in the Draft Decision, Baker J characterised the public interest test as follows:
“... The test is whether the public interest that might be gained or lost by the release of the specified documents having regard to their content, might for reasons relevant to the document and the record and their contents be better served by either release or refusal.’” (Appellant’s emphasis)
Accordingly, there is no obligation that a specific, foreseeable harm be identified for the purposes of Article 10(3). Instead, the Commissioner appears to be conflating mandatory requirements of exemption provisions, such as Article 9(1)(a) – (d), which require that an “adverse effect” be identified, with the requirements of Article 10(3), which simply requires, in the words of Baker J, a consideration how the public interest would be best served. While it is accepted that such factors may form a part of a public interest test in this regard, such considerations are not a mandatory constitute element.
Accordingly, in addition to the range of reasons and justifications set out in Coillte’s earlier submission as to why the public interest would favour the refusal of access to the category A information, by way of further comment, it is considered that the public interest would be best served by withholding this information in accordance with Article 9(2)(d) due to the fact that it relates to ongoing efforts to deliver the Cullenagh wind project by FEI who are still in the process of determining and delivering its strategy for realising same. The release of the records, which discuss Coillte’s previous strategy for the delivery of the project, may influence FEI or the public with respect to the development in a manner that may be contrary to the public interest. Furthermore, to release information that relates to a wind farm development to a requester who has previously challenged the same project, and which information is not legally required to be the subject of public consultation under national planning legislation, materially risks delaying and hindering the delivery of that project, particularly in circumstances where stakeholder consultations are in contemplation. It is argued that the Commissioner ought to consider the context of active and legally binding decarbonisation target on the part of the state and the need for development such as the Cullenagh project, and that these factors that should weigh heavily in the public interest test being undertaken.
Without prejudice to the forgoing, in column 3 of the Table [provided by Coillte identifying particular information in Records 1, 2, 3, 4, 6, 9, 10, 13 which it considered to also be commercially sensitive) specific, reasonably foreseeable harms have been identified in respect of specific items of information. These will either jeopardise or significantly hinder FEI’s ability to deliver the Cullenagh wind project, having regard to the specific steps currently being undertaken by that body, or adversely affect Coillte’s position by making publicly available its commercial strategies with respect of current and future wind farm developments. It is therefore submitted that public interest would not be best served through the release of the information in the Table due to the fact that harms identified would be likely to arise.”
78. Coillte made a submission “on a principled basis only” as to why it disagreed with my position that I am unable to consider the application of [a]rticle 9(2)(d) in respect of Record 5 due to the finding of the previous Commissioner in case CEI/19/0011. Coillte stated:
“It is worth referring to the findings of the Commissioner in earlier decision in this respect:
“Even if I were satisfied that the information was capable of being protected under article 9(2)(d), I am satisfied that, under article 10(3), the public interest in the decision being made available in the interests of transparency would outweigh the public interest served by refusal.”
It is submitted that this finding is shallow in terms of its reasoning and does not actively engage with the issues at hand. While Coillte is by no means seeking to challenge the finding of the earlier decision, it is rather stating that this earlier finding should not bind OCEI in the course of the present fresh review of the information at hand.
There are no reasons given for this finding which does not actively engage with the issues at hand. While Coillte is by no means seeking to challenge the finding of the earlier decision, it is rather stating that this reasoning should not carry significant weight or bind the OCEI in the course of the present review of the information at hand.
In this respect, Record 5 contains an extract from Record 6, which the Commissioner in the Draft Decision proposes to, at least partially, withhold from being released. The AIE Regulations relates to access to “information”, not records (unlike the FOI Act, for example), and therefore it is submitted that the information that is common to both Records 5 and 6 ought to be treated the same and redacted pursuant to the Commissioners findings.
79. Finally, Coillte sought clarification regarding wording used in the consideration of article 10(1) of the AIE Regulations.
80. The general thrust of the appellant’s position is that Coillte’s decision under 8(a)(iv), 9(1)(c), and 9(2)(d) of the AIE Regulations is not justified.
81. During the course of this review, this Office invited the appellant to make submissions in relation to this matter. In doing so, she referred to articles 8(a)(iv), 9(1)(c), 9(2)(d) and 10 of the AIE Regulations. Regarding article 9(1)(c), she notified the appellant that she had informed Coillte that it may wish to consider the equitable duty of confidence (see Megarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41 and Fennelly J in Mahon v Post Publications Ltd [2007] 3 IR 338) and reiterated her comments quoted at paragraph 55 above.
82. Regarding article 10, the Investigator also stated:
“…while the Commissioner has yet to make a determination as to whether any of the exemptions relied upon in articles 8/9 of the AIE Regulations can/cannot be engaged in respect of the information at issue in this case, I wish to give you the opportunity to provide submissions to this Office regarding article 10 of the AIE Regulations. If the Commissioner finds that any of the exemptions contained in articles 8 or 9 of the AIE Regulations apply to the information you have requested, he will be required to weigh the public interest served by disclosure against the interest served by refusal. To assist in assessing the public interest if required, it would be useful if you could consider the following matters in your submissions:
(i) If you consider that this information might assist in participation in a decision-making process on environmental matters, please explain how this in the case.
(ii) If you consider that this information will improve access to justice in environmental matters, please explain why this is the case.
(iii) Can you explain how release of this information might lead to a better environment?
(iv) Please explain any other public interest that you might see in the release of this information.”
83. In its submissions to this Office, the appellant included the following comments:
• “The requested information concerns a proposed Coillte wind farm located at Cullenagh, Co Laois. This was a proposed development on a site that requires an Environmental Impact Assessment and an Appropriate Assessment. Laois County Council refused permission for this project in October 2013 with one of the grounds being that "based on the EIA conducted, there exists serious deficiencies in the EIS submitted". Coillte appealed this decision to An Bord Pleanála which subsequently granted permission, despite the deficiencies identified by the local authority.”
• “PoW challenged this decision by way of a Judicial Review and raised concerns in relation to how the original environmental assessments were carried out and also raised an issue in relation to the fact that an assessment of the works required to connect the proposed development to the electricity grid had not been carried out. Around that time a decision in another case had confirmed that grid connection works must be considered as part of the overall environmental assessments for wind generation projects on relevant sites. Coillte sought to have this case heard by the Commercial Court as it argued that the project was of commercial importance. PoW’s appeal was judged to have failed on all grounds in May 2015, however the judge acknowledged that the grid connection would be subject to relevant environmental assessments when planning permission was sought for this element.”
• “In April 2016, PoW lodged a request under section 5 of the Planning and Development Acts with Laois County Council seeking a declaration as to whether the grid connection works was development or exempt development. This request was referred by the Planning Authority to An Bord Pleanála.”
• “On 18th July 2016 Coillte commenced works on the grid connection and these works were suspended when Laois County Council issued a warning letter to Coillte for carrying out unauthorised works. The Planning Authority commenced an investigation at that time.”
• “Since then the planning permission has expired without being commenced.”
• “Coillte’s second decision is dated 26 March 2020 (attached at Annex 1). When this decision was appealed, the Commissioner referred points of law to the High Court concerning whether the Freedom of Information Act 2014 provided a basis for confidentiality under Article 8(a)(iv) of the AIE Regulations. The High Court ruled in April 2023 that, since Coillte was not subject to the Freedom of Information Act 2014, it could not rely on this legislation as a basis for confidentiality.”
• “Following the judgment of the High Court the Commissioner made a new decision on 20 December 2024 which annulled the decision on 26 March 2020 and directed Coillte to make a new internal review decision.”
• “PoW issued judicial review proceedings challenging this decision on 14 March 2025.”
• “In order to protect its position it appealed again to the Commissioner on 17 April 2025 and makes these submissions again in order to protect its position.”
• “It should be noted that, in adopting Directive 2003/4, the EU legislature intended to ensure the compatibility of EU law with the Aarhus Convention by providing for a general scheme to ensure that any applicant within the meaning of Article 2(5) of that directive has a right of access to environmental information held by or on behalf of the public authorities, without having to state an interest.”
• “The right of access guaranteed by Directive 2003/4 applies only to the extent that the information requested satisfies the requirements for public access that that directive lays down, which presupposes inter alia that the information is ‘environmental information’ within the meaning of Article 2(1) of the directive.”
• “As regards the aims pursued by Directive 2003/4, Article 1 states in particular that it seeks to guarantee the right of access to environmental information held by public authorities and to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public.”
• “However, the EU legislature provided, in Article 4 of Directive 2003/4, that the Member States may establish exceptions to the right of access to environmental information. In so far as such exceptions have in fact been transposed into national law, it is permissible for the public authorities to rely upon them in order to oppose requests for information that they receive.”
• “As is apparent from the scheme of Directive 2003/4 and, in particular, from the second subparagraph of Article 4(2) and recital 16, the right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information only in a few specific and clearly defined cases. The exceptions to the right of access should, consequently, be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal of disclosure.”
• “Furthermore, according to settled case-law, the need for the uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, which must take into account the context of that provision and the purpose of the legislation in question.”
• “Compliance with all the obligations which are owed by public authorities when they examine a request for access to environmental information, including, in particular, the obligation to weigh the interests involved, must be capable of being checked by the person concerned and be open to scrutiny in the administrative and judicial review procedures provided for at national level, in accordance with Article 6 of Directive 2003/4.”
• “In order to meet that requirement, Article 4(5) of Directive 2003/4 provides that a decision refusing access is to be notified to the applicant and to contain the reasons for refusal on which it is based.”
• “That obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, 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. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.”
• “In the IDA case the High Court held at §96(e) and (k) and §97:
‘(e) The onus to justify refusal rests on the FOI body (paras. 145-150 of Enet). A decision to refuse to release on the application of an exemption is not justified unless justifying reasons are provided (para. 157 of Enet). As the exemption is not general, its application should be considered in light of the contents of each document and the impact of disclosure (para. 152 of Enet);
(k) The test is whether the public interest that might be gained or lost by the release of the specified documents, having regard to their content, might, for reasons relevant to the document and its contents, be better served by either release or refusal (para. 204 of Enet). The public interest at play at this balancing stage of the process is the public interest in disclosure of the content of the documents (para. 205 of Enet).
97. In my view, the most concise statement of the test governing the decision to release or withhold an otherwise exempt document is found at para. 204 in Enet where Baker J. states: “... The test is whether the public interest that might be gained or lost by the release of the specified documents having regard to their content , might for reasons relevant to the document and the record and their contents be better served by either release or refusal.’” (Appellant’s emphasis)
• “PoW submits that these provisions can be read across into the AIE Regulations.”
• “It is apparent that Coillte did not carry out a new internal review but rather simply edited its original decision to remove explicit references to the Freedom of Information Act 2014 which the High Court said Coillte could not rely on. Despite this, the decision appears to rely implicitly on previous arguments, which have been determined to be unavailable to Coillte.”
• “This can be seen from a comparison of the two decisions (see Annex 2) where the two decisions are compared side by side with deletions from the first decision show in red on the left and insertions in the new decision shown in blue on the right. The non-highlighted text is common to both decisions.”
• “This shows that although references to the Freedom of Information Act have been removed, the substance of the decision referring to this legislation has been maintained.”
• “For example although Coillte deleted references to Section 30(1) of the Freedom of Information Act 2014, it still justifies the application of Article 8(a)(iv) by reference to the substance of this provision:
‘On the basis that Coillte was operating and competing with private, commercial entities in relation to the Project and future projects, I consider that release of the requested records could reasonably be expected to have:
o prejudiced the effectiveness of Coillte’s inquiries and due diligence in relation to the Project, as well as those for future projects; and
o have a significant adverse effect on the performance of Coillte’s statutory functions in relation to the management of such projects and its relationships with potential joint venture partners.
It would also disclose plans, criteria and procedures followed by Coillte in negotiations concerning such projects, including with potential joint venture partners, with the likely effect of prejudicing Coillte’s competitiveness as against the private, commercial entities operating in this market.’”
• “Similarly Coillte deleted references to Section 35(1) of the Freedom of Information Act 2014 but repeats verbatim the substance of this provision:
‘The requested records include information obtained by Coillte in confidence and contain sensitive information developed in confidence on the commercial and industrial activities of Coillte and its joint venture partners undertaken in pursuance of legitimate economic interests.
The requested records include details of or reflect legal and commercial advice obtained from third party advisors relating to the development phase of the Project, as well as information relating to possible joint venture options and partners. This information was provided to and analysed by Coillte in confidence and with the expectation that the information would be treated in confidence and would not be disclosed publicly.
If this information is released, it is very likely, in my opinion, to prejudice the future supply of similar information to Coillte in as full and frank a manner, and in turn, prejudice Coillte’s ability to effectively fulfil its statutory mandate. It is also important in my opinion that Coillte continues to receive such information in the future.’”
• “With Section 36 of the Freedom of Information Act 2014, Coillte adopted the same approach, deleting express references to the section but maintaining the substance:
‘As described above, the requested records contain financial, commercial and other information regarding the strategic development of Coillte’s projects, including information on possible risks, certain third party partners and the negotiating positions and considerations of Coillte in this regard. I consider that release of such information to the world-at-large could reasonably be expected to prejudice the competitiveness of the Project as at the relevant date of the Remitted Request, and would therefore have resulted in a material financial loss to Coillte and/or its partners. In addition or in the alternative, I consider that release could prejudice the competitive position of Coillte and/or its partners in the development of such projects.’”
• “Thus it is clear that Coillte has ignored the judgment of the High Court and has applied the Freedom of Information Act 2014 in substance to its new decision. It has also ignored the direction of the Commissioner by failing to carry out a new internal review and essentially editing its earlier decision which was made in March 2020.”
• “The judgment in Right to Know v An Taoiseach Case C-84/22 explains that information relating to the proceedings of a public authority is a special case of internal communications (§47). The judgment explains:
‘50 The protection of ‘internal communications’ allows a protected space to be created for public authorities in order to engage in reflection and to pursue internal discussions. That exception has a particularly broad scope, and it is capable of applying at each stage throughout the work carried out by those authorities. It follows that, in order to determine whether the refusal to grant access to information falling within that exception is justified, the weighing of the interests involved, namely those which oppose disclosing that information and those which justify disclosing it, must be tightly controlled (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C 619/19, EU:C:2021:35, paragraphs 50, 58 and 60).
51 By contrast, the exception relating to the ‘proceedings of public authorities’ applies only to information exchanged in a very specific context. It allows Member States to protect solely information relating to the final stages of the decision-making process of public authorities and in respect of which they consider that such information, by virtue of its particularly sensitive nature, must be confidential. Therefore, the scope of that exception is precise and limited.’”
• “This judgment was made after Coillte’s 2020 decision and it appears in simply editing its early decision, Coillte has overlooked this important judgment of the Court of Justice clarifying the definition of “proceedings of public authorities”
• “Coillte incorrectly says:
‘In relation to “proceedings” under Article 8(a)(iv), the Commissioner’s decisions recognise that these may be proceedings concerning the internal operations of a public authority and not substantive proceedings conducted by the public authority in its area of competence.’”
• “The case law of the Court of Justice defines the concept of “proceedings”: ‘as regards the concept of ‘proceedings of public authorities’, the Court has held that the term ‘proceedings’ refers to the final stages of the decision-making process of public authorities which are clearly defined as proceedings under national law.’”
• “Coillte, in its decision, has not identified the important constituent elements of the concept of ‘proceedings of public authorities’ which are (a) a decision making process clearly defined as proceedings under national law and (b) the final stage of that process and (c) the legal basis for confidentiality.”
• “In terms of confidentiality Coillte relies on Section 33 of the Forestry Act 1988 as prohibiting disclosure by Coillte of confidential information. However this provision does not create confidentiality, it merely prohibits disclosure of information which is already confidential. Coillte hasn’t identified the legal basis for which it says the requested information is confidential. Even in its own terms the decision says that many, but not all, of the requested records are confidential without identifying which information is confidential and which is not.”
• “In terms of an adverse effect, the protection of the confidentiality of proceedings is a protection of the proceedings not confidentiality per se. Therefore it is for the public authority to show how the proceedings would be adversely affected by disclosure not merely that the confidentiality itself would be adversely affected. It is trite that disclosure will remove confidentiality, therefore if the only adverse effect is by reference to confidentiality and nothing else the scope of the exception would be too wide and would include confidential information whose disclosure caused no harm at all to the proceedings, or was not “particularly sensitive” to use the language of the Court of Justice in Right to Know”
• “Coillte has not shown how the alleged proceedings themselves would be adversely affected, and therefore even assuming that there are proceedings (which is denied) Coillte has not justified the decision by demonstrating an adverse effect.”
• “This ground of refusal is therefore not justified.”
• “Again this part of the decision is flawed because Coillte has in substance applied the Freedom of Information Act 2014 and not the provisions of the AIE Regulations.”
• “As pointed out above Coillte has not identified the legal basis for the alleged confidentiality nor how the confidentiality protects commercial or industrial confidentiality to protect legitimate economic interests.”
• “The only prejudice identified is that release would prejudice the future supply of similar information. This is not an adverse effect on industrial or commercial confidentiality nor an adverse effect on a legitimate economic interest. Rather this is a concept borrowed from the Freedom of Information Act.”
• “The alleged adverse effect on the competitiveness of the project cannot arise since Coillte has let the planning permission expire without implementing the project. Therefore this prejudice cannot, by definition, arise.”
• “The Coillte decision has failed to take into account two important judgments of the Court of Justice.”
• “First the judgment Land Baden-Würtemberg defines “Internal Communications” as covering ‘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.’”
• “According to this judgment the purpose of this exception is ‘the creation, for public authorities, of a protected space in order to engage in reflection and to pursue internal discussions.’”
• “According to the Court, while there is no temporal limitation the protection can only apply ‘for the period during which protection of the information sought is justified.’”
• “The second important judgment is Right to Know, referenced above. This judgment held that the exception for proceedings of public authorities is a special case of internal communications relating to the final stages of the decision-making process. Therefore the two exceptions are mutually exclusive.”
• “Coillte has not identified the constituent elements of “internal communications” as set out in the case law. Coillte also seeks to rely on two exceptions which are mutually exclusive which is contradictory.”
• “It is up to a public authority to justify actually and specifically how an exception applies. Where Coillte has sought to rely on two mutually exclusive exceptions, it has manifestly failed to meet the high standard required to justify refusal. Both purported justifications are defeated by Coillte’s own arguments.”
• “Coillte cannot rely on justifications for refusal which do not arise under EU Law. As per Advocate General Kokott’s opinion in Office of Communications v The Information Commissioner Case C 71/1049,
‘It would … be manifestly impossible to permit interests to be included in a balancing exercise under the third sentence of Article 4(2) of the Environmental Information Directive which, although they might militate against disclosure, are not recognised in Article 4 as a basis for exceptions to the right of access to environmental information’”
• “Where Coillte has failed to provide legal justification for its refusal to provide access to the environmental information, that refusal must be annulled and the information released.”
• “There is no recognition in the decision of the passage of time since the request was first made in 2018 and the fact that the wind farm project’s planning permission has lapsed. This is a relevant factor, identified in the case law, which Coillte has not taken into account.”
• “At a very basic level it is very difficult to see how prejudice may arise to a project that is no longer in existence particularly where the requested information is now between 7 and 12 years old.”
• “The following observations are provided without prejudice and in the further alternative.”
• “At the heart of the request is the need for access to information on a decision taken by Coillte in breach of Irish planning law and EU environmental law.”
• “Access to the requested information would allow the public to understand why Coillte proceeded with works which it ought to have known were likely to require planning permission without the required planning permission and environmental assessments and would allow the public to check whether Coillte had any environmental information before it concerning the impacts from the project and/or how it decided to proceed with a project without planning permission and what environmental considerations were taken into account when the decision was made”
• “At the time the request was made Coillte was subject to enforcement action by Laois County Council and a warning letter had issued and had suspended works upon receipt of the warning letter.”
84. On 18 September 2025, this Office provided both parties with a draft decision. In response, the appellant provided submissions to this Office. Among other comments, the appellant stated:
• “The draft decision contains a first error where the Commissioner states that his jurisdiction is to carry out a de novo review…The Appellants understand this to mean that the Commissioner indicated that he would make a new decision having regard to the requested information and that he would not confine his review to the justification set out in Coillte’s decision. This is what the Commission actually did, he made a decision as if the request had been addressed to him as the public authority since the basis for his decision was not a basis identified by Coillte in the decision under review, or indeed in its lengthy submission to the Commission dated 9 July 2025. The Commissioner therefore went further than what was stated in his letter of 28 May 2025, where he said that the “scope of this review concerns whether Coillte’s decision dated 18 March 2025 to refuse access to information contained in 17 records identified as relevant under articles 8(a)(iv) and 9(1)(c), and, in all the records apart from record 5, under article 9(2)(d) of the AIE Regulations was justified”. The draft decision is therefore based on an erroneous view by the Commissioner of his jurisdiction.”
• The draft decision is based on a second error of law. When the Commissioner prompted Coillte (as indicated in the letter of 28 May 2025) to consider other matters outside of the scope of its decision and in effect asked it if it wanted to expand on its decision, it failed to act independently and impartially.
• The draft decision is based on a further, third error of law. When Coillte, despite being prompted to expand its decision, didn’t do so in a way that justified refusal (see §119 of the draft decision), the Commissioner himself stepped in and made his own decision which went far beyond Coillte’s decision and resulted in the Commissioner holding that refusal of access to Category B material was justified, even where Coillte itself did not put forward this justification at all. The Commissioner again failed to act independently and impartially in assuming the role of the public authority and devising his own justification for part-refusing the request.
• Finally the draft decision is based on a fourth error of law. In so far as Coillte expanded on its decision on appeal, it is not entitled to do so. The Commissioner’s jurisdiction is to review its decision. The intention of the legislation is that Coillte will justify its decision at first instance or possibly on internal review. It is not entitled to make a new or expanded decision in response to an appeal. This is to prevent incremental decisionmaking. The Commissioner therefore erred in allowing Coillte to expand on its justification at appeal stage. He should have held Coillte to its decision as setting out its justification for refusing access, and carried out his review on that basis.
• In the Appellant’s opinion, the Commissioner should remove all elements of his draft decision that go outside the scope of the Coillte’s decision of 18 March 2025, he should also disregard Coillte’s submission of 9 July 2025 since this submission was made in response to a request that was unlawful and exceeded the Commissioner’s jurisdiction whereby he asked Coillte to consider expanding its decision.
• When this material is disregarded the main findings of the draft decision are that Coillte has not demonstrated that any of the requested information is confidential, since the arguments based on section 33 of the Forestry Act 1988 and the FOI Act are ineffective.
• With this conclusion, the Commissioner must find that Coillte has not justified the decision refusing access to the requested environmental information, he must annul that decision and direct Coillte to make the information available without further delay.”
85. The information at issue relates to the Cullenagh wind farm (the “Project”). The website for the Cullenagh wind farm project, which was accessed by the Investigator during the course of this review, stated:
“Cullenagh Wind Farm has been in development since 2011 and received planning consent in 2014 for 18 turbines.
In 2021, Coillte and ESB came together to form the joint venture FuturEnergy Ireland, and this project transferred from Coillte to the new company as part of the portfolio.
As with the passage of time, a review of the original project proposal is being undertaken by the team to assess the role that Cullenagh could play in assisting with the national requirement for decarbonisation of the energy system. As part of this review, the team are assessing various aspects in relation to the size and scope of the project, which include the project site, and transportation and grid routes.
Estimated Project Development Time:
• July 2014: Planning permission granted for Cullenagh Wind Farm
• Oct 2021: Newsletter with full details of planning for the grid connection sent out to local residents and stakeholders.”
86. The website also provided links to a document on the “ Cullenagh Wind Farm Project RESS Community Benefit Fund Breakdown ” and “ Grid Connection Newsletter ”. There were additional pages with information on “Community”, “Environment”, and “FAQ”s.
87. There have also been cases before An Coimisiún Pleanála and the courts related to the Project.
88. The information at issue (see “Scope of Review”) is contained within 17 records. As noted, I must be careful not to disclose withheld information in my decisions. However, having considered the content of these records, I am satisfied that these records can generally be described as follows:
• Record 1 (3 pages) – 31 July 2014 – Decision Item from Board Meeting – This record is a memorandum submitted by a named Coillte staff member to the Board. It seeks a financial decision and contains the following headings “Board Resolution Sought”, “Executive Summary”, “Background – Cullenagh Windfarm”, “Sanction Details”, “Key Risks”, “Timeline”, “Management Recommendation”.
While there is detail set out in respect of each of the headings, it is generally quite high-level. There are both overarching and specific details. There are also financial figures. The information
pertains to a particular point in time for the Project.
• Record 2 (4 pages) – 27 January 2016 – Decision Item from Board Meeting – This record is a memorandum submitted by a named Coillte staff member to the Board. It seeks a financial decision and contains the following headings “Board Resolution Sought”, “Executive Summary”, “Background – Cullenagh Windfarm”, “Option Review” (“Context”, “Options”), “Management Recommendation”.
While there is detail set out in respect of each of the headings, it is generally quite high-level. There are both overarching and specific details of strategy. There are also financial figures. The information pertains to a particular point in time for the Project.
• Record 3 (3 pages) – 7 April 2016 – Decision Item from Board Meeting – This record is a memorandum submitted by a named Coillte staff member to the Board. It seeks a company structuring decision and contains the following headings “Board Approval Sought”, “Background”, “Cullenagh Wind Farm”, “Overview of Wind Portfolio Company Structures”, “Key Principles Underpinning Recommendation”, “Management Recommendation”.
While there is detail set out in respect of each of the headings, it is quite high-level. There are some overarching details of strategy, including company structuring and the wind portfolio. The information pertains to a particular point in time for the Project.
• Record 4 (8 pages) – 28 April 2016 – Decision Item from Board Meeting – This record is a memorandum submitted by a named Coillte staff member to the Board. It seeks three strategy decisions regarding grid connection, community engagement, and project partner, and contains the following headings “Board Approval Sought”, “Grid Connection” (“Background”, “Proposed Strategy”, “Risks”, “Management Recommendation”), “Community Engagement” (“Cullenagh Principles), “Project Partner Selection” (“Conclusion on Competing Offers”, “Validation”, “Next Steps”, “Focus Areas”).
There is detail set out in respect of each of the headings. Regarding “Community Engagement”, while there are some overarching details of strategy, it is quite high-level. A financial figure and more substantive detail is provided regarding “Grid Connection”, however I understand that there has also planning matters litigation related to grid connection in respect of the Project and while all of the information regarding “Grid Connection” contained in the record may not be in the public domain, there is detail related to grid connection considerations and the Project available. The information pertains to a particular point in time for the Project. More substantive detail is set out regarding “Project Partner Selection”, including the specific details of competing offers and Coillte’s consideration and strategy/approach to partner selection both generally and in respect of those offers. It sets out at a more granular level details of Coillte’s business affairs and of the then prospective partners.
• Record 5 (1 email) – 2 October 2013 – Email with Extract from Board Minutes relevant to Cullenagh – This record comprises a very short email containing meeting minute extract relevant to resolution on the Decision Item in Record 6.
The information at issue is high-level. The information contains information regarding grid connection. The information pertains to a particular point in time for the Project.
• Record 6 (2 pages) – 25 July 2013 – Decision Item from Board Meeting – This record is a memorandum submitted by a named Coillte staff member to the Board. It seeks a decision regarding grid connection agreements and contains the following headings “Item for Decision”, “Background”, “GET Recommendation”, “Board Resolution”.
While there is detail set out in respect of each of the headings, it is generally quite high-level. There are some overarching details of strategy, regarding grid connection offers and financial figure related to a payment in that regard. The information pertains to a particular point in time for the Project.
• Record 7* – 31 July 2014 – Extract from Board Minutes relevant to Cullenagh – This record comprises a very short meeting minute extract relevant to the resolution and a note on the Decision Item in Record 1.
The information at issue is generally quite high-level. The information contains financial information, including details regarding expenditure and a financial figure related to budget. The information pertains to a particular point in time for the Project.
• Record 8 – 27 January 2016 – Extract from Board Minutes relevant to Cullenagh - This record comprises a very short meeting minute extract relevant to the resolution on the Decision Item in Record 2.
The information at issue is generally quite high-level. The information briefly refers to litigation and contains a decision regarding financial information, including details regarding expenditure and a financial figure related to capex . The information pertains to a particular point in time for the Project.
• Record 9 – 7 April 2016 – Extract from Board Minutes relevant to Cullenagh – This record comprises a very short meeting minute extract relevant to the resolution and a note on the Decision Item in Record 3.
The information at issue is high-level. The information briefly refers to a community investment strategy and a decision regarding company structuring. The information pertains to a particular point in time for the Project.
• Record 10 – 28 April 2016 – Extract from Board Minutes relevant to Cullenagh – This record comprises a meeting minute extract of notes on the Decision Item in Record 4.
The information at issue is generally quite high-level related to three aspects of the Project: grid connection, community engagement, and project partner (more detailed). The information pertains to a particular point in time for the Project.
• Record 11 – 20 December 2016 – Extract from Board Minutes relevant to Cullenagh - This record comprises a very short meeting minute extract of an update (financial and legal).
The information at issue is generally quite high-level. It provides a brief update on litigation and financial information. There is a financial figure. The information pertains to a particular point in time for the Project.
• Record 12 – 26 January 2017 – Extract from Board Minutes relevant to Cullenagh – This record comprises a very short meeting minute extract of an update (financial).
The information at issue is generally quite high-level. It provides a brief update on financial information, including a transaction. There is a financial figure. The information pertains to a particular point in time for the Project.
• Record 13 – 6 April 2017 – Extract from Board Minutes relevant to Cullenagh – This record comprises a meeting minute extract of an update (financial and legal) and a note on the strategic risk register.
The information at issue is high-level. It provides a brief update on litigation / planning and financial information, including a transaction. The information pertains to a particular point in time for the Project. It also refers to the strategic risk register and details one risk within scope (Risk 5). The risk is identified and there is a brief comment – there is no detailed discussion.
• Record 14 – 31 August 2017 - Extract from Board Minutes relevant to Cullenagh – This record comprises a very short meeting minute extract of an update (risks).
The information at issue is high-level. While it provides an update on risks, the risks are simply identified and there is no detailed discussion.
• Record 15 – 31 January 2018 – Extract from Board Minutes relevant to Cullenagh – This record comprises a very short meeting minute extract of an update (financial).
The information at issue is generally quite high-level. It provides an update on the EBITDA figure for a particular area of the business, providing a brief explanation for that figure which refers to the transaction on the Project and two other total income figures. The information pertains to a particular point in time.
• Record 16 – 26 April 2018 – Extract from Board Minutes relevant to Cullenagh – This record comprises a meeting minute extract of more detailed notes and queries from a number of individuals regarding different aspects of the project (e.g. financial, legal, risks, strategy).
The information at issue is specific, providing substantive detail, discussion and comments relating to a variety of issues. It sets out at a more granular level details of Coillte’s business affairs and operational plans regarding different aspects of the Project / wind energy development.
• Record 17 – 19 July 2018 – Extract from Board Minutes relevant to Cullenagh – This record comprises a very short meeting minute extract of an update (financial and legal).
The information refers to past litigation. It also refers to new litigation and planning approaches and comments on financial and legal strategy.
89. This review is concerned with whether Coillte was justified in refusing access to information coming within the scope of the appellant’s request contained in 17 records under articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, and, in all the records apart from record 5, under article 9(2)(d) of the AIE Regulations.
90. 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.
91. The general thrust of Coillte’s position is that article 10(1) of the AIE Regulations does not apply in this case. I will set out my assessment of article 10(1) of the AIE Regulations below. I note that Coillte sought clarification regarding my assessment in its recent submissions to this Office, however, I am satisfied with the detail provided for the purposes of this case.
92. In the case of Bayer CropScience and Stichting De Bijenstichting, C 442/14 (Bayer), the CJEU assessed the meaning of the phrase “information on emissions into the environment”. The Bayer case involved a request for information relating to authorisation provided for the placing of plant protection products and biocides on the market. The request was made to the CTB, a Dutch public authority, under Dutch law transposing the AIE Directive.
93. In Bayer, the CJEU found, that the concepts of “emissions into the environment” and “information on emissions into the environment” are not to be interpreted in a restrictive way. This is because the inclusion of those concepts in the AIE Directive is designed to ensure that certain grounds for the refusal of information cannot be invoked against the disclosure of ‘information relating to emissions into the environment’. That provision in turn gives effect to the principle (provided for in article 4 and Recital 16 of the Directive) that disclosure must be the general rule of the AIE regime and the grounds for refusal must be interpreted restrictively, and to the general principle of the widest possible access to environmental information held by or for public authorities set out in Recital 1 (paragraphs 55-58).
94. The CJEU went on to find that, despite reference in the Aarhus Guide to the definition of “emissions” contained in the Industrial Emissions Directive, the concept of “emissions” in the AIE Directive was a wider one and was not limited to emissions emanating from industrial installations. It noted that such a restriction would be contrary to the express wording of article 4(4)(d) of the Aarhus Convention which provides that although information may be refused to protect the confidentiality of commercial and industrial information subject to certain conditions, this shall not apply with regard to “information on emissions which is relevant for the protection of the environment”. The CJEU pointed out that “information concerning emissions emanating from sources other than industrial installations…are just as relevant to environmental protection as information relating to emissions of industrial origin” (paragraph 72).
95. While the facts of Bayer are considerably different to those in this case, I consider that Bayer does provide useful guidance and makes it clear that the concept of “information on emissions into the environment” is to be interpreted broadly. However, article 10(1) states that where the request “relates to information on emissions into the environment”, certain exemptions do not apply. An over-broad interpretation of the term “relates to” could result in the override capturing any information that can somehow be linked to the subject of emissions.
96. In another decision of the CJEU, in C-673/13 P European Commission v Stichting Greenpeace Nederland and Pesticide Action Network Europe (PAN Europe), the court considered the appeal of a decision from the EU’s General Court concerning access to documents held by one of the EU institutions. The EU has separate regulations controlling access to such information, but where the information is environmental, the principles of the Aarhus Convention are applied. This includes an override to the use of certain exceptions where the information relates to emissions. The General Court had found that the requested information only had to be linked ‘in a sufficiently direct manner’ to emissions for the override to apply. The CJEU rejected that approach, finding that the override applied to: “… information which ‘relates to emissions into the environment’, that is to say information which concerns or relates to such emissions and not information with a direct or indirect link to emissions into the environment” (paragraph 78).
97. As I have previously stated, while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. While the records relate to wind energy development, which is linked to emissions, having considered the case law above and examined the specific content of the 17 records at issue, I am satisfied that neither the request nor the records themselves “relate to information on emissions into the environment” in the manner envisaged by article 10(1). The records do not discuss emissions related to the wind farm but instead relate more generally to business, planning, and regulatory matters connected to the wind farm. Accordingly, I am satisfied that article 10(1) does not apply.
98. I will proceed to consider article 9(1)(c) first, before deciding if it is necessary to consider articles 8(a)(iv) and 9(2)(d).
99. 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. Articles 9(1)(c) of the AIE Regulations must also be read alongside article 10 of the AIE Regulations.
100. 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)
101. When relying on article 9(1)(c) of the AIE Regulations 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. 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.
102. Coillte is refusing access to all of the information at issue under article 9(1)(c) of the AIE Regulations.
Is the information at issue commercial or industrial in nature?
103. I have described above the 17 records containing the information at issue. In short, Records 1 to 4 and 6 (each entitled “Decision Item from Board Meeting”) comprise memoranda submitted by a named Coillte staff member to the Board seeking approval decisions from the Board on identified items. Record 5 comprises an email from one Coillte staff member to another containing an extract of minutes of a Board Meeting and Records 7 to 17, all of which are contained in a consolidated pdf document, comprise extracts of minutes of other Board Meetings held on various dates. Having examined the records, all of which relate to financial, legal, organisational etc matters, I am satisfied that the information at issue is commercial / industrial in nature.
Does that commercial / industrial information have an element of confidentiality? Is that confidentiality provided for in law to protect a legitimate economic interest(s)? Would that economic interest, and thereby its confidentiality, be adversely affected by disclosure of the information at issue?
104. As noted above article 9(1)(c) of the AIE Regulations is based on Article 4(2)(d) of the AIE Directive which states: “Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect: the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy.”
105. While Article 4(2)(d) has been referenced by the Court of Justice of the European Union (“CJEU”) in a number of cases, the CJEU has not provided detailed guidance on this exemption. The CJEU has, however, provided useful guidance on the interpretation and application of Article 4(2) more generally: see in particular the judgment of the Grand Chamber of 14 February 2012 in C-204/09 Flachglas. As appears from that judgment (paragraphs 61-63):
• By specifying in Article 4(2) of Directive 2003/4 that the protection of the confidentiality must be ‘provided for by law’, the European Union legislature clearly wanted “an express provision to exist in national law with a precisely defined scope, and not merely a general legal context”.
• However, this specification “cannot be interpreted as requiring all the conditions for application of that ground for refusing access to environmental information to be determined in detail since, by their very nature, decisions taken in that domain are heavily dependent on the actual context in which they are adopted and necessitate an assessment of the nature of the documents in question and the stage of the administrative procedure at which the request for information is made”.
• Public authorities should not be able “to determine unilaterally the circumstances in which the confidentiality referred to in Article 4(2) of Directive 2003/4 can be invoked”.
106. In addition to the findings inFlachglas , the CJEU also considered the obligations on public authorities relying on exemptions in C-619-19Land Baden-Württemberg v D.R . In that case the Court relied on Article 4(5) of the Directive, the last sentence of which puts an obligation on a public authority to state reasons for refusal of access to environmental information in writing to the requestor. At paragraph 69 ofLand Baden-Württemberg v D.R the Court stated: “On the contrary, 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. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.”
107. Taking the above into account, I consider that article 9(1)(c) requires me to address the following questions:
• Is the confidentiality of the information protected by a national or EU law?
• Is that law in place to protect commercial or industrial confidentiality?
• Does that law have a precisely defined scope?
• Is that law objective, such that it does not permit public authorities to determine unilaterally the circumstances in which confidentiality can be invoked?
• Would disclosure of the information will have an adverse effect on a legitimate economic interest?
108. 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 appellant 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 risk of the economic interest being undermined must be reasonably foreseeable and not purely hypothetical (see by analogy, C-57/16 P ClientEarth v Commission, paragraph 51).
109. Coillte is refusing access under article 9(1)(c) of the AIE Regulations by reference to:
(a) Section 33 of the Forestry Act 1988, as amended
(b) Section 36(1) of the Freedom of Information Act 2014
(c) Common Law Doctrine of Commercial Confidentiality / Equitable Doctrine of Confidentiality
(d) Directive 2016 / 943 – Trade Secrets Directive
(e) Contractual Duty of Confidence
110. Before addressing each of the above, I consider it necessary to set out the role that the fundamental right to confidentiality plays in this process.
111. While the fundamental right to privacy – as guaranteed as an unenumerated right under Article 40.3 of the Constitution, and expressly in Article 8 ECHR and Article 7 of the Charter of Fundamental Rights – applies primarily to natural persons, it has also been recognised as applicable to legal persons in appropriate contexts, including in the context of commercial/industrial confidentiality.
112. While the precise scope of protection for commercial confidentiality under the Constitution, the ECHR and the Charter of Fundamental Rights is not entirely clear cut, it is nonetheless well-established that these instruments provide protection for privacy and confidentiality in a commercial context. Indeed, these fundamental rights guarantees could well come into play where the existing laws governing confidentiality are not fully effective to protect and vindicate the fundamental right to privacy of legal persons (for example, if there was no statutory, common law or equitable protection of confidentiality). In this regard, it is instructive to note the approach of the Supreme Court to the relationship between existing causes of action and actions for breach of constitutional rights, as encapsulated in the dictum of Henchy J. in Hanrahan v. Merck Sharp & Dohme (Ireland) Ltd [1988] I.L.R.M. 629:
“A person may of course in the absence of a common law or statutory cause of action, sue directly for breach of a constitutional right (see Meskell v. C.I.É. [1973] I.R. 121); but when he founds his action on an existing tort he is normally confined to the limitations of that tort. It might be different if it could be shown that the tort in question is basically ineffective to protect his constitutional right.”
113. Therefore, if it was established that an existing cause of action in tort (in that case, nuisance) was ineffective to protect the constitutional right in question, a person would be entitled to sue directly for breach of the constitutional right. While the principle in Hanrahan was expressed specifically in the context of the law of tort, there is no reason in principle why it would not also apply in the context of other areas of law which serve to vindicate constitutional rights (such as statute, also expressly referenced in the paragraph, or the common law of contract or equity as appropriate). In short, fundamental right to privacy would provide a backstop of protection in the event that, or to the extent that, the existing law is inadequate or ineffective. As will be discussed in the next section, I consider that the equitable duty of confidence provides an adequate protection of the confidentiality rights of the public authorities in this case and do not consider it necessary to rely directly on the above fundamental rights. In setting out and applying the equitable duty of confidence below, I do so in light of these fundamental rights.
(a) Section 33 of the Forestry Act 1988, as amended (“1988 Act”)
114. Section 33 of the 1988 Act provides:
“33.—(1) A person shall not disclose confidential information obtained by him while performing duties as a director or member of staff of, or an adviser or consultant to, the company unless he is duly authorised to do so.
(2) A person who contravenes subsection (1) shall be guilty of an offence.
(3) In this section—
“confidential” means that which is expressed to be confidential either as regards particular information or as regards information of a particular class or description;
“duly authorised” means authorised by the company or by some person authorised in that behalf by the company.”
115. While I note Coillte’s position regarding its reliance on Section 33 of the 1988 Act as the relevant law in both its new internal review decision and its submissions to this Office, I am satisfied that Section 33 of the 1988 Act can be described as an “anti-leaking” provision intended to impose a duty of confidentiality on Coillte directors, members of staff, advisers, consultants in respect of confidential information obtained in the course of their duties, breach of which is a criminal offence. I am also satisfied that it is not a general or standalone legal bases for the protection of confidentiality of the materials of a public body. I recall the CJEU’s judgment in Flachglas where the Court stated that public authorities should not be able “to determine unilaterally the circumstances in which the confidentiality … can be invoked”. This statement was made in the context of its examination of what kinds of ‘law’ are capable of providing the protection referred to in Article 4(2) of the Directive, where the Court made clear that a ‘general legal context’ would not suffice. I consider that it would be an over-extension of the proper scope of application of the non-disclosure provision in Section 33 of the 1988 Act to treat it as a provision of national law providing for commercial or industrial confidentiality to protect a legitimate economic interest for the purposes of article 9(1)(c) of the AIE Regulations. It is also of note that Section 33 does provide for disclosure by an individual where they are duly authorised to do so. I find, therefore, that Section 33 of the 1988 Act cannot be relied upon by Coillte in seeking to apply article 9(1)(c) of the AIE Regulations.
116. Section 36(1) of the FOI Act provides:
“36. (1) Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains—
(a) trade secrets of a person other than the requester concerned,
(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
117. Section 36(3) of the FOI Act provides: “Subject to section 38 , subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request.”
118. As indicated to above, the Commissioner for Environmental Information has a power under article 12(9)(a) of the AIE Regulations to refer any question of law arising in an appeal to the High Court for determination. In November 2021, my predecessor used this power to refer a question to the High Court, seeking the High Court’s guidance on the interpretation of articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, to the extent they involved an interplay with the Freedom of Information Act 2014 ( Notice of Motion and Grounding Affidavit Grounding Affidavit) . Accordingly, it was not possible to progress this case until the Court provided its legal guidance. As such, this appeal was placed on hold pending the receipt of the High Court judgment in case [2023 IEHC 227 ]. The High Court issued its judgment on 28 April 2023. This is the “2023 judgment of Hyland J” referred to by Coillte. I draw attention to the comments at paragraph 111:
“The FOI Act only protects the confidentiality of proceedings of public bodies where records sought to be disclosed are found to be exempt within the meaning of the FOI Act. Records are only exempt where the public body seeking to withhold access is a body subject to the FOI Act, as defined by section 6 of the FOI Act, and where (if applicable), both limbs of the test for exemption are met: the records come within an exemption protecting the confidentiality of proceedings of public bodies and the public interest does not warrant disclosure. As Coillte is an “exempt agency” under the Act, the confidentiality protection under the FOI Act identified in Regulation 8(a)(iv) is not available to Coillte.”
119. While the comments of the Court were in respect of whether Coillte as an “exempt agency” under the FOI Act could rely on the FOI Act in seeking to apply article 8(a)(iv) of the AIE Regulations, I have no reason to doubt that this approach must also be followed where the question arises as to whether Coillte as an “exempt agency” under the FOI Act could rely on the FOI Act in seeking to apply article 9(1)(c) of the AIE Regulations.
120. I note Coillte’s position regarding its view that it can rely upon section 36 of the FOI Act 2014 in seeking to apply article 9(1)(c) of the AIE Regulations, however I disagree. I am satisfied that it clearly follows from the above that it is not open to Coillte, as an “exempt agency” under the FOI Act to rely on the provisions of the FOI Act when seeking to apply article 8(a)(iv) or any of the other exemptions in the AIE Regulations, including article 9(1)(c). I find, therefore, that section 36 of the FOI Act cannot be relied upon by Coillte in seeking to apply article 9(1)(c) of the AIE Regulations.
121. For the sake of completeness and while I am satisfied that section 36 of the FOI Act cannot be relied upon by Coillte in seeking to apply article 9(1)(c) of the AIE Regulations, I wish to note that Coillte simply referred to section 36(1) of the FOI Act, it provided no further detail in respect of which limb(s) of article 36(1) of the FOI Act it considered to apply, made no reference to any particular information in the records, nor did it give any detail in respect of the public interest considerations required (section 36(3)).
(c) Equitable Duty of Confidence
122. The equitable duty of confidence is well-established in Irish law and the three elements of a cause of action for breach of that duty are as laid down by the Supreme Court in Mahon v Post Publications [2007] 2 ILRM 1:
a) the information must have the necessary quality of confidence about it;
b) it must be communicated in circumstances of confidence/trust; and
c) it must be wrongfully communicated by the person receiving it or another person who is aware of the obligation of confidence.
123. In its full form the equitable duty of confidence is a cause of action that allows the beneficiary of the confidentiality to prevent a breach of confidentiality, or sue for damages if there has been a breach. While the cause of action will only be complete if all three elements are satisfied and, in particular, there is misuse or threat of misuse of the confidential information, it is nevertheless the case that there is an underlying duty of confidentiality which forms the basis of this cause of action. As such, the first step in the test above is the most important for the purposes of this decision.
124. According to Toulson & Phipps, the leading English textbook on confidentiality, the following points are relevant to the consideration of whether the information is confidential:
(i) The test is objective and not subjective. This means that it is not relevant that the public authority thinks that the information is confidential. The test is whether a reasonable person would regard the subject matter as confidential. Would a reasonable person in the position of the parties regard the information as confidential?
(ii) There must be some value to the party claiming confidentiality in the information being treated as confidential;
(iii) Reasonableness factors in the usage and practices in a particular sector;
(iv) Trivial or useless information will generally not be confidential. In any event, release of such information would not have an adverse effect on confidentially.
(v) The age of the information is a relevant factor to consider when determining its confidentiality. This is done on a case by case basis. The older the information the less likely it is to be confidential.
(vi) If the information is in the public domain then it is not confidential. By that the authors mean that it is generally accessible by the public.
125. The equitable duty of confidence is applied in a range of circumstances in Irish law, but it is clear that it can apply in respect of commercial or industrial information. I also accept that, when it so applies, such application may be for the protection of a legitimate economic interest. The equitable duty of confidence is a principle of the common law rather than a legislative provision. However, as it is a principle which is well established and understood in Irish law, I accept that the equitable duty of confidence has a precisely defined scope and is not a ‘general legal context’, consistent with the requirement set out in Flachglas. This is notwithstanding that an assessment of whether information has the ‘necessary quality of confidence’ is fact-specific in a given case. Similarly, I accept that test for whether there is an equitable duty of confidence is objective, such that public authorities are not permitted to determine unilaterally the circumstances in which confidentiality can be invoked, again consistent with the requirement set out in Flachglas.
126. In order for the information to be exempt under article 9(1)(c), release of the information must adversely affect the legitimate economic interest of the party seeking to rely on it. This is broadly the same analysis as point (ii) in paragraph 124 on the factors to be considered when applying the equitable duty of confidence. For that duty to apply, there must be some value to the information being confidential and some negative consequence if it is released. It seems to me that the correct approach is to consider the adverse effect on the legitimate economic interest at the same time as the value to the parties of the information being confidential. In other words, the final step in article 9(1)(c) of release adversely affecting the legitimate economic interest is built into the equitable duty of confidence and does not need to be considered separately.
127. As outlined above, during the course of this review, the Investigator wrote to both parties, noting that an analysis of the contents of the information at issue is required and factors that are relevant in respect of assessing whether the information is confidential and should be considered included those set out at (i), (ii), (v), and (vi) above. She also specifically asked Coillte to address the age of the records/ passage of time in the context of the application of article 9(1)(c) of the AIE Regulations. I have set out the positions of both parties above and while I will not repeat them in full here, confirm I have had regard to them.
128. While I note that Coillte provided some detail in its new internal review decision and provided some detail to this Office, it did not specifically address the factors raised by my Investigator, rather gave a more general response and made no specific reference to any particular information contained in any of the 17 records concerned. I have considered below Coillte’s submissions in the context of the factors identified by the Investigator to Coillte, which I consider most relevant to this case, and the specific information at issue. I have also considered Coillte’s submissions in response to the draft decision, including the table set out therein.
129. As noted, while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the information at issue and the extent to which I can describe certain matters in my analysis is limited. I have generally described the records which contain the information at issue above. I confirm that I have considered the information at issue in each record concerned. I have divided the information into two categories (A and B) for the purposes of considering the equitable duty of confidence. Category A and B are detailed below:
• Category A: All of the Information at issue (see “Scope of Review”) in Records 1 to 17, apart from the information listed:
o Record 1 – financial figure (page 1), financial figure (box on page 2), paragraph 2.3 financial information after “will deliver” until the end of the sentence, paragraph 2.4 financial figure, paragraph 3 financial figure and the listed items and financial figures after “include”.
o Record 2 – financial figure (page 1), financial figure (box on page 2), paragraph 3.1.1 three financial figures, paragraph 3.2 table, paragraph 4 the information under the heading “Management Recommendation”
o Record 4 – paragraph 3 financial figure contained in second box in table for point 4, financial figure at footnote 3, and the information under the heading (C) “Project Partner Selection” until the end of the record.
o Record 6 – financial figure (page 1), financial figure (top page 2), financial figure (row three of table page 2).
o Record 7 – financial figure
o Record 8 – financial figure
o Record 10 – final three paragraphs
o Record 11 – financial figure
o Record 12 – financial figure
o Record 15 – three financial figures
o Record 16 – all of the information
o Record 17 – all of the information
• Category B: The information at issue listed as not being in Category A.
Category A : All of the Information at issue (see “Scope of Review”) in Records 1 to 17, apart from the information listed above.
130. I am satisfied that in considering whether the equitable duty of confidence applies to the information sought, regard must be had to the content of the information and the subject matter concerned.
131. I accept that wind farm projects take time to develop, however, Coillte has provided no evidence that supports its finding that the information in Category A “is still relevant today in terms of project viability, proportional cost, public body engagement and risk” or that “information contained within the records relates directly to on-going deliberations in relation to Coillte’s immediate and medium-term renewable energy and land use strategy, as well as being relevant to its strategic partnership with ESB for the carrying out of renewable energy projects through FuturEnergy Ireland.” I also accept that Coillte (and its partners) has commercial competitors and there are ongoing energy projects, including the Project. However Coillte has not explained nor is it evident to me why it considers that release of the information at issue in Category A, which is at least seven years old and pertains to particular points in time that have since passed “could reasonably be expected to prejudice the competitiveness of the Project” at the date of this decision and “would therefore [result] in a material financial loss to Coillte and/or its partners” (Coillte referred to date of the Remitted Request, however, as noted, a review by this Office is de novo and I must consider the matter at the date of this decision).
132. Coillte gave no explanation as to how the information at issue contained in Category A “could prejudice the competitive position of Coillte and/or its partners in the development of such projects”; “jeopardise the deployment of Coillte’s renewable energy strategy”; or “undermine recognised and integral principles of trade.” I do not consider that the information at issue contains a level of detail about Coillte’s (or its partners’) operational plans, or anything else, that could be useful to its competitors (or its partners’ competitors), or could otherwise undermine the development of energy projects, including the Project. I am satisfied that the information does not provide sufficiently detailed or meaningful insight into Coillte’s business affairs (or its partners’ affairs) that disclosure would result in material financial loss to Coillte or its partners or prejudice their competitive position.
133. While I note Coillte’s concerns regarding the public or the appellant, who has been involved in legal matters relating to the project, gaining access to the information, e.g. “it is submitted that the release of information to organisations such as this particular requester, could result in the gathering of opposition to plans and strategies that are, at this moment, still under review and deliberation” and “the premature release of the requested information could facilitate the generating of early opposition to, and undermining of, any project that FuturEnergy Ireland DAC may seek to pursue on Coillte’s lands in furtherance of its strategic partnership with ESB. This could undermine the project level assessments and consultations and thereby jeopardise the possibility of obtaining permission for the projects. Given that Coillte performs its functions for an on behalf of the State, the potential financial loss not only arises in respect of Coillte, but also for the State and Taxpayer” Coillte provided no further explanation as to why the release of the particular information in Category A would result in the harms identified and undermine the development of the project or any other projects. For the reasons set out above regarding the age of the information and the level of detail concerned, it is also not evident to me how such harms would arise.
134. Coillte did not identify any particular information contained in the records which “included details of or reflect legal and commercial advice contained from third party advisors relating to the development stage of the Project.” Even if there is such information contained in the records, I do not consider that the disclosure of any of the information at issue would, as suggested by Coillte, “prejudice the future supply of similar information to Coillte in as full and frank a manner, and in turn, prejudice Coillte’s ability to effectively fulfil its statutory mandate.” Coillte has not explained how this would arise, and I consider that it is in the interests of Coillte staff, Board members, or any third party advisors to continue to engage and share views and perspectives at Board Meetings.
135. For completeness, I would add that Coillte did not identify any information that would be subject to litigation or legal advice privilege or seek to withhold any information on that basis. Coillte also did not specify information in Category A which it considered to “relate to potential contract negotiations” and it is not evident to me that any of the particular information at issue in Category A relates to such negotiations or that its release would undermine same. Finally, I note that the definition of “‘trade secret’ under Directive 2016 / 943 is set out below, Coillte again did not specify information in Category A which it considered to comprise a “trade secret” and it is not evident to me how any of the information could indeed comprise a “trade secret” in accordance with the definition.
136. Finally, I wish to note that Coillte in its submissions responding to the draft decision identified specific information in Category A which it considered to fall within Category B. Coillte had not previously engaged with the information in response to the investigator’s request for submissions. I have examined the information identified and Coillte’s “reason for confidentiality”. While I acknowledge that Coillte did provide further detail, and I confirm I have had regard to same, the explanations did not sufficiently set out the reasonably foreseeable risk that the release of the particular information concerned would result in any of the harms identified and I am not persuaded that any of this information should come within Category B.
137. In all the circumstances, having examined the specific content of the information at issue in Category A, I do not consider that that a reasonable person would regard the subject matter as confidential nor do I consider it information whose character is “obviously” confidential as submitted by Coillte. I do not consider that Coillte has identified any specific value to it (or its partners) in claiming confidentiality in the information at issue contained in the records nor do I consider that it has adequately supported its view that the information, which is at least seven years old and I consider to be historic, remains so relevant today that it should be considered confidential.
138. In light of all of the foregoing, I find that all of the information that falls within Category A does not have the necessary quality of confidence in accordance with the equitable duty of confidence such that it is commercially confidential.
139. Although I have yet to consider the equitable duty of confidence in the context of the Category B information (which I do below), I think it is relevant at this point to consider the other laws relied upon by Coillte and listed at (d) and (e) above in the context of the Category A information:
(d) Directive 2016 / 943 – Trade Secrets Directive
(e) Contractual duty of Confidence.
140. Regarding (d), the European Union (Protection of Trade Secrets) Regulations 2018 (SI 188/2018) provides for the protection of the confidentiality of ‘trade secrets’. Those Regulations implement, and rely on the definitions in, Directive (EU) 2016/943. The term ‘trade secrets’ is defined in Article 2(1) of that Directive as follows:
“‘trade secret’ means information which meets all of the following requirements:
(a) it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
(b) it has commercial value because it is secret;
(c) it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret;”
141. In relation to Category A, I have concluded above in relation to the equitable duty of confidence that a reasonable person would not be likely to conclude that the information concerned is confidential. For the same reasons, I do not consider that the information ‘has commercial value because it is secret’. Accordingly, I am not satisfied that the protection for confidentiality under the trade secrets regime could apply to that information.
142. Regarding (e), Coillte briefly mentioned a contractual duty of confidence. Coillte did not refer to any specific contract. On the particular facts of this case, any information which could attract a contractual duty of confidence is also covered by the equitable duty of confidence. For the same reasons as explained under the equitable duty of confidence above, I am not satisfied that the information in Category A, can reasonably considered to be objectively confidential, so I do not consider that the contractual duty of confidence can apply.
Conclusion on article 9(1)(c) and Category A
143. Having regard to all of the above, I am satisfied that the Category A information does not have an element of confidentiality provided for in law to protect a legitimate economic interest. I find, therefore, that it cannot be refused under article 9(1)(c) of the AIE Regulations. Accordingly, where I have found that the Category A information does not have an element of confidentiality provided for in law to protect a legitimate economic interest, I am not required, in respect of that information, to consider the adverse effect of disclosure or the public interest balancing test in the context of article 9(1)(c) of the AIE Regulations.
Category B : The information at issue listed as not being in Category A.
144. I will now turn to consider (c) the equitable duty of confidence in the context of the information at issue in Category B. As noted, this is the information at issue listed as not being in Category A:
o Record 1 – financial figure (page 1), financial figure (box on page 2), paragraph 2.3 financial information after “will deliver” until the end of the sentence, paragraph 2.4 financial figure, paragraph 3 financial figure and the listed items and financial figures after “include”.
o Record 2 – financial figure (page 1), financial figure (box on page 2), paragraph 3.1.1 three financial figures, paragraph 3.2 table, paragraph 4 the information under the heading “Management Recommendation”
o Record 4 – paragraph 3 financial figure contained in second box in table for point 4, financial figure at footnote 3, and the information under the heading (C) “Project Partner Selection” until the end of the record.
o Record 6 – financial figure (page 1), financial figure (top page 2), financial figure (row three of table page 2).
o Record 7 – financial figure
o Record 8 – financial figure
o Record 10 – final three paragraphs
o Record 11 – financial figure
o Record 12 – financial figure
o Record 15 – three financial figures
o Record 16 – all of the information
o Record 17 – all of the information
145. As stated above, in Record 4 under the heading “Project Partner Selection” more substantive detail is set out, including the specific details of competing offers and Coillte’s consideration and strategy/approach to partner selection both generally and in respect of those offers. It sets out at a more granular level details of Coillte’s business affairs and of the then prospective partners. The final three paragraphs in Record 10 contain specific detail related to the information concerned in Record 4 and the project partner selection. The information is at least seven years old and is of particular relevance to the Project. However, the information is of such detail that I consider its disclosure would release information regarding how the two prospective partners (both energy sector semi-state bodies subject to the AIE Regulations) operate with respect to bidding on wind farm development projects to an extent that it would undermine their competitive position regarding current / future projects, and Coillte’s strategy/approach generally regarding the assessment of such bids to an extent that it would undermine Coillte’s competitive position in respect of current/future projects.
146. Record 16 comprises more detailed meeting minutes in comparison to the other similar records at issue. The information is specific, providing substantive detail, discussion and comments relating to a variety of issues. It sets out at a more granular level details of Coillte’s business affairs and operation plans regarding different aspects of the Project / wind energy development. The information is at least seven years old, is of particular relevance to the Project, and contains some brief details that may be reflected at a higher level within other records at issue. However, the information contains such a level of detail, all of which is inextricably linked, that I consider its disclosure would release information regarding Coillte’s business affairs in respect of development generally and how it deals operationally with particular financial, legal, and planning matters, to an extent that it would undermine Coillte’s competitive position in respect of current/future projects.
147. The information in Record 17 refers to past litigation. It also refers to new litigation and planning approaches and comments on financial and legal strategy. While I note the age of the information, given its detail I consider that its disclosure would release information regarding Coillte’s business affairs in respect of development generally and how it deals operationally with particular financial, legal, and planning matters, to an extent that it would undermine Coillte’s competitive position in respect of current/future projects.
148. The table in Record 2 at paragraph 3.2 sets out three options from a financial/business perspective regarding the progression of the project, giving advantages and disadvantages, and paragraph 4 (Management Recommendation) follows those options. The information provides specific detail regarding Coillte’s strategy in respect of wind farm development. Again, while the information is at least seven years old and the project has moved beyond some of the matters discussed, I consider that the disclosure of the options, advantages, and disadvantages in the table and the management recommendation would release information regarding Coillte’s strategy in respect of windfarm development generally and what it takes into consideration to an extent that it would undermine Coillte’s competitive position in respect of current/future projects.
149. Record 1, paragraph 2.3 financial information after “will deliver” until the end of the sentence. This is detailed financial information, setting out specific financial projections related to the project. Again, notwithstanding the age of the information, I am satisfied that its release would undermine Coillte’s competitive position in respect of current/future projects.
150. The other information in Category B relates to financial figures (Records 1, 2, 4, 6, 7, 8, 11, 12, 15). These are specific figures related to the project, relating to capex approvals, budget sanctions, items within budget, costs, costs incurred, EBITDA, revenue, income, future income projections. Again, notwithstanding the age of the figures or that some are totals / high-level breakdowns, I am satisfied that their disclosure would release information regarding Coillte’s business affairs and the costs involved in wind farm development to an extent that it would undermine Coillte’s competitive position in respect of current/future projects.
151. Having examined the information at issue the information in Category B, I am satisfied that it is not information that is generally accessible by the public and there is commercial value to both Coillte and its partners/the two third parties in the information being treated as confidential. I consider that the reasonable person would regard the subject matter as confidential and that confidentiality is required to protect a legitimate economic interest.
152. In light of all of the foregoing, I find, that the Category B information does have the necessary quality of confidence in accordance with the equitable duty of confidence such that it is commercially confidential i.e. it does have the element of confidentiality provided for in law to protect a legitimate economic interest. Accordingly, it is appropriate to also consider the adverse effect of disclosure. As noted, for the equitable duty of confidence to apply, there must be some value to the information being confidential and some negative consequence were it to be released, and it seems to me to be the correct approach to consider the adverse effect on the legitimate economic interest at the same time as the value to the parties of the information being confidential. In assessing above the value of the information to Coillte and its partners / the two third parties – the confidentiality is required to protect a legitimate economic interest; the competitive positions of Coillte and/or third parties in respect of current/future projects – I have discussed and identified the harms that would arise from release of the specific information. I also accept that the disclosure of the information in Category B would adversely affect the legitimate economic interests of Coillte and its partners / the two third parties for the reasons set out above.
Conclusion on article 9(1)(c) and Category B
153. Accordingly, I am satisfied that article 9(1)(c) applies in respect of all of the information at issue that falls within Category B. However, that is not the end of the matter, I must proceed to consider the public interest test in respect of Category B.
154. I have found that article 9(1)(c) of the AIE regulations applies to the information in Category B.
155. However, that is not the end of the matter. As noted above, in addition to article 10(1) of the AIE Regulations, which I have already considered, article 9(1)(c) of the AIE Regulations must be read alongside articles 10(3), 10(4), and 10(5) of the AIE Regulations (dealt with later in this decision). As indicated above, article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
156. At this point, I consider it relevant to address the appellant’s submission that I must have regard to the fact that the public interest test has been the subject of detailed discussion by the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (Enet) and by the High Court in Industrial Development Agency (Ireland) and the Information Commissioner & Ors [2024] IEHC 649. These cases both considered appeals of decisions of the Information Commissioner under the FOI Act to the Superior Courts. In its judgment in eNet, the Supreme Court held that for the purposes of the FOI Act the general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather a “sufficiently specific, cogent and fact based reason” is required to tip the balance in favour of disclosure. I also note Coillte’s recent submissions drew attention to the comments of the Court in Enet in assessing the public interest test in respect of article 9(2)(d) of the AIE Regulations, dealt with below. I wish to highlight that the Court's comments were made in a case involving commercial sensitivity and confidentiality under the FOI Act and I do not consider them relevant to the application of the public interest test under the AIE Regulations. I reach this view for the following reasons.
157. First, the two tests are different in their terms. Under certain provisions of the FOI Act, the exemption does not apply where “the public interest would, on balance, be better served by granting than by refusing to grant the FOI request”. By contrast, under the AIE regime, “the public authority shall … weigh the public interest served by disclosure against the interest served by refusal”.
158. Second, the regimes derive from different sources (domestic and European) and an authoritative interpretation has been given in respect of each regime by different Courts. In relation to the test in the AIE Regulations, in the first instance the Commissioner must follow the guidance provided by the CJEU in Land Baden-Württemberg, which is: “the right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information only in a few specific and clearly defined cases. The exceptions to the right of access should, consequently, be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal of disclosure” (paragraph 33). To the extent that it needs further interpretation, the right source is Irish case law relating to the AIE regime. Reliance on eNet, a domestic judgment concerning a domestic regime, would be inconsistent with the principle that the AIE regime must be given an autonomous and uniform interpretation across all member states (Flachglas Torgau, paragraph 37).
159. Third, the rationale underpinning the decision in eNet was that the Oireachtas has indicated that the exemptions are appropriate exceptions to the general principle of transparency, such that something must arise from or in respect of the record at issue in order for the balance to be tipped in favour of disclosure. By contrast, the rationale underpinning the AIE regime is that there is a presumption of disclosure so as to protect the environment (see recital 16 of the AIE Directive), subject to the discretion to apply specific exceptions to disclosure in a restrictive way. Given those differences, the text of the eNet judgment cannot be read across to the AIE regime.
160. I turn to assess the public interest test under the AIE Regulations in this case. In considering the public interest served by disclosure, it is important to be mindful of the purpose of the AIE regime, as reflected in Recital 1 of the Preamble to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment.” The AIE regime thereby recognises a very strong public interest in openness and transparency in relation to environmental decision-making.
161. The AIE Regime also acknowledges that there may be exceptions to the general rule of disclosure of information, as noted in Recital 16 of the AIE Directive, which provides that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases.” One such case is in respect of commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.
162. I have already set out Coillte’s and the appellant’s positions regarding article 9(1)(c) and article 10 of the AIE Regulations in this case. While I will not repeat or discuss them in full here, I confirm that I have considered them. Furthermore, while I am required by article 12(5)(b) to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the content of the information at issue and the extent to which I can describe certain matters in my analysis is limited. However, I also confirm that I have examined to the specific information concerned.
163. As previously stated, the information in Category B relates to the Project / wind energy development generally and includes financial figures. I am satisfied that its release would provide insight into Coillte’s approach and considerations when reaching its decisions related to the project partner selection, and operational matters concerned financial, legal, and planning issues related to the Project and wind energy development generally. In my view public access to such information, would generally contribute to the accountability and transparency of Coillte’s approach to the Project and wind energy development generally. I consider that there is a public interest in such insight.
164. However, as outlined above, the exception provided for in article 9(1)(c) of the AIE Regulations is designed to protect commercial confidentiality where such confidentiality is provided for in national or Community law to protect a legitimate economic interest. In the circumstances of this case I am conscious that disclosure of the information in Category B, which, as discussed, sets out at a more granular level details of Coillte’s business affairs and of the then prospective partners, risks not only harming the commercial interests of Coillte and its partners / the two third parties but has broader consequences with regard to Ireland’s wind energy development goals. Regarding the financial information, other than general openness and transparency in respect of environmental matters, the appellant has not identified a specific public interest in favour of disclosure of that information.
I have weighed the factors for and against disclosure. In light of the above and having examined the information at issue in Category B, I am of the view that the interest in refusal outweighs the public interest in disclosure. Accordingly, I find that Coillte was justified under article 9(1)(c) in refusing access to the Category B information.
165. Coillte refused access to all of the information at issue under articles 9(1)(c), 8(a)(iv), and 9(2)(d) of the AIE Regulations. As I have found that article 9(1)(c) does not apply to some of the information at issue, I will now go on to consider whether Coillte was justified in refusing that particular information under article 8(a)(iv) of the AIE Regulations, namely: Category A.
166. 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.
167. Article 8(a)(iv) 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 article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
168. 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.
169. 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).
170. Coillte submitted that the proceedings in this case relate to the ongoing deliberations of the board of Coillte in relation to its immediate and medium-term strategy for land use and renewable energy development, including at the Cullenagh site.
171. I note Coillte’s arguments that the definition of “proceedings” does not have to relate to the final stages of the decision-making process. However, having regard to the above, I do not agree with that approach, and I consider that to follow same would not be in line the CJEU or my recent decisions dealing with article 8(a)(iv) of the AIE Regulations, notwithstanding that my decisions do not form a precedent.
172. Records 1 to 4 and 6 comprise memoranda submitted by a named Coillte staff member to the Board seeking approval decisions from the Board on identified items (Decision Items) dated 31 July 2014, 27 January 2016, 7 April 2016, 28 April 2016, and 25 July 2013. While the memoranda may generally relate to an overarching project(s), it is clear that they each concern the final stage of a decision-making process in respect of a particular aspect/milestone of that project(s), which required approval from the Board in order to proceed. Records 5 is an email dated 2 October 2013 between two Coillte staff members that contains an extract of the minutes relating to the Board Meeting dated 25 July 2013 which considered Record 6. Records 7 to 10 comprise extracts of the minutes relating to the Board Meetings dated 31 July 2014, 27 January 2016, 7 April 2016, and 28 April 2016 which considered Records 1 to 4.
173. In the circumstances, I am satisfied that Records 1 to 10 relate to the Board Meetings dated 31 July 2014, 27 January 2016, 7 April 2016, 28 April 2016, and 25 July 2013 and those meetings concerned the final stages of a decision making process in respect of a particular aspect/milestone of the relevant project(s), which required approval from the Board in order to proceed, such that those meetings are “proceedings” for the purposes of article 8(a)(iv) of the AIE Regulations. It is important to note that this finding relates solely to those particular Board meetings. Accordingly, the information at issue contained in Records 1 to 10 that falls within Category A will be considered further in the context of article 8(a)(iv) of the AIE Regulations below.
174. Records 11 to 15 comprise extracts of minutes relating to Board meetings dated 20 December 2016, 26 January 2017, 6 April 2017, 31 August 2017, and 31 January 2018. No corresponding “Decision Items” were identified in respect of those meetings and having examined the extracts, there is nothing to suggest that any of the relevant matters considered at those meetings concerned the final stage of a decision-making process. They appear to me to be notes of general matters of discussion / updates to the Board. In the circumstances, I do not consider those meetings to be “proceedings” for the purposes of article 8(a)(iv) of the AIE Regulations. I find, therefore, that the information at issue in Records 11 to 15 that falls within Category A cannot be refused under article 8(a)(iv) of the AIE Regulations. Accordingly, I am not required to go on and consider in respect of that information any further elements of article 8(a)(iv) of the AIE Regulations or the public interest balancing test in the context of article 8(a)(iv) of the AIE Regulations.
Do the proceedings (the Board meetings dated 31 July 2014, 27 January 2016, 7 April 2016, 28 April 2016, and 25 July 2013) have an element of confidentiality? Is the confidentiality of those proceedings protected by law?
175. I will now to consider further the information at issue in Records 1 to 10 that falls within Category A in the context of article 8(a)(iv) of the AIE Regulations. I must now assess whether the proceedings identified (the Board meetings dated 31 July 2014, 27 January 2016, 7 April 2016, 28 April 2016, and 25 July 2013) have an element of confidentiality and whether the confidentiality of those proceedings protected by law. The requirements of Flachglas and Land Baden-Württemberg v D.R set out at paragraphs 105 and 106 above are also relevant to the application of article 8(a)(iv) of the AIE Regulations.
176. Coillte is refusing access under article 8(a)(iv) of the AIE Regulations by reference to:
(a) Section 33 of the Forestry Act 1988, as amended
(b) Section 36(1) of the Freedom of Information Act 2014
(c) Common Law Doctrine of Commercial Confidentiality / Equitable Doctrine of Confidentiality
(d) Directive 2016 / 943 – Trade Secrets Directive
(e) Contractual Duty of Confidence
(a) Section 33 of the Forestry Act 1988, as amended (“1988 Act”)
177. As discussed earlier in further detail in the context of article 9(1)(c) of the AIE Regulations, I consider that Section 33 of the 1988 Act can be described as an “anti-leaking” provision intended to impose a duty of confidentiality on Coillte directors, members of staff, advisers, and consultants in respect of confidential information obtained in the course of their duties, breach of which is a criminal offence. In my view, Section 33 is not a general or standalone legal basis for the protection of confidentiality of the materials of a public body. I also consider that it would be an over-extension of the proper scope of application of the non-disclosure provision in Section 33 of the 1988 Act to treat it as a provision of national law providing for the confidentiality of proceedings for the purposes of article 8(a)(iv) of the AIE Regulations. I find, therefore, that Section 33 of the 1988 Act cannot be relied upon by Coillte in seeking to apply article 8(a)(iv) of the AIE Regulations. It allows Coillte to unilaterally determine what information is confidential, contrary to the Flachglas requirement.
(b) Section 36(1) of the Freedom of Information Act 2014
178. As discussed earlier in further detail in the context of article 9(1)(c) of the AIE Regulations, I am satisfied that Coillte, as an “exempt agency” under the FOI Act 2014 cannot rely on the provisions of the FOI Act 2014 for the purposes of applying any of the exemptions the AIE Regulations. I find, therefore, that section 36 of the FOI Act cannot be relied upon by Coillte in seeking to apply article 8(a)(iv) of the AIE Regulations.
(c) Common Law Doctrine of Commercial Confidentiality / Equitable Doctrine of Confidentiality
179. The equitable duty of confidence is discussed earlier in further detail in the context of article 9(1)(c) of the AIE Regulations. As noted, the equitable duty of confidence is applied in a range of circumstances in Irish law, including in respect commercial or industrial information. I am also satisfied that the equitable duty of confidence can apply in respect of assessing the confidentiality of proceedings and is appropriate to consider in the context of article 8(a)(iv) of the AIE Regulations.
180. As outlined above, I am satisfied that in considering whether the equitable duty of confidence applies to the information sought, regard must be had to the content of the information and the subject matter concerned.
181. I have already set out my reasoning regarding why I do not consider the information at issue in Records 1 to 10 to be commercially confidential having regard to the equitable duty of confidence. I have explained my finding that, in all the circumstances, having examined the specific content of the information at issue, I do not consider that a reasonable person would regard the subject matter as confidential nor do I consider it information whose character is “obviously” confidential as submitted by Coillte. I reiterate that I do not consider that Coillte has identified any specific value to it (or its partners) in claiming confidentiality in the information at issue contained in the records nor do I consider that it has adequately supported its view that the information, which is at least seven years old and I consider to be historic, remains so relevant today that it should be considered confidential. I therefore reached my conclusion that the information concerned does not have the necessary quality of confidence in accordance with the equitable duty of confidence such that it is commercially confidential.
182. For the same reasons, I am satisfied that the information at issue contained in Records 1 to 10 does not have the necessary quality of confidence in accordance with the equitable duty of confidence such that the proceedings identified are confidential.
(d) Directive 2016 / 943 – Trade Secrets Directive
(e) Contractual Duty of Confidence
183. Again, as already explained, I do not consider the information at issue in Records 1 to 10 that falls within Category A to be confidential under either the Directive 2016 / 943 – Trade Secrets Directive or any contractual duty of confidence in circumstances where it does not have the necessary quality of confidence in accordance with the equitable duty of confidence.
184. Notwithstanding this view, I also wish to note that in line with my comments above regarding section 36 of the FOI Act and the interest being protected by article 8(a)(iv) of the AIE Regulations, the confidentiality of proceedings, I do not consider that Directive 2016 / 943 – Trade Secrets Directive is an appropriate provision to rely upon when seeking to apply article 8(a)(iv) of the AIE Regulations. This is because of the subject matter of Directive 2016 / 943 – Trade Secrets Directive. It is only appropriate for public authorities to consider Directive 2016 / 943 – Trade Secrets Directive in the context of article 9(1)(c) of the AIE Regulations. Regarding any contractual duty of confidence, it will depend on the particular contractual provision concerned as to whether it can be relied upon for the purposes of either article 9(1)(c) or 8(a)(iv) of the AIE Regulations.
185. Having regard to all of the above, in circumstances where I have found that all of the information at issue in Records 1 to 10 that falls within Category A is not confidential, I am satisfied that the proceedings identified do not have an element of confidentiality that is protected by law. I find, therefore, that the information at issue in Records 1 to 10 that falls within Category A cannot be refused under article 8(a)(iv) of the AIE Regulations. Accordingly, I am not required to go on and consider, in respect of that information, any adverse effect of disclosure or the public interest balancing test in the context of article 8(a)(iv) of the AIE Regulations.
186. Coillte refused access to all of the information at issue under articles 9(1)(c), 8(a)(iv), and 9(2)(d) of the AIE Regulations. As I have found that article 9(1)(c) does not apply to some of the information at issue (Category A) and that article 8(a)(iv) also does not apply to that information, I will now go on to consider whether Coillte was justified in refusing that particular information, excluding Record 5 (see Scope section), under article 9(2)(d) of the AIE Regulations, namely: Category A (excluding Record 5).
187. The appellant’s submissions to this Office outlined its view that article 9(2)(d) of the AIE Regulations should not be considered at all. I disagree with the appellant’s position. In my recent decision reference OCE-116904-Y3L3S9, I set out my reasoning as to why I am satisfied that article 9(2)(d) of the AIE Regulations can be relied upon where article 8(a)(iv) of the AIE Regulations is found not to be engaged. I confirm that I am following that approach in this decision. Accordingly, I will not repeat the analysis here and proceed to consider whether Coillte’s decision under article 9(2)(d) of the AIE Regulations in respect of the Category A (excluding Record 5) information was justified.
188. 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.
189. Article 9(2)(d) must be read alongside article 10 of the AIE Regulations, part of which transposes the second subparagraph of Article 4(2) of the AIE Directive. As indicated above, article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
190. 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.
191. 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.
192. The CJEU noted that the term “communication”, should be given a separate meaning to the terms “material” or “document” (paragraph 40), and that it can be interpreted as relating to “information addressed by an author to someone, an addressee who or which may be an abstract entity – such as ‘members’ of an administration or the ‘executive board’ of a legal person – or a specific person belonging to that entity, such as a member of staff or an official” (paragraph 37).
193. The CJEU also noted that not all environmental information held by a public authority is necessarily “internal” and “[t]hat is so only in the case of information which does not leave the internal sphere of a public authority in particular when it has not been disclosed to a third party or been made available to the public” (paragraph 42). It further commented that “[w]here a public authority holds environmental information that it has received from an external source, that information may also be “internal” if it was not or should not have been made available to the public before that authority received it and it does not leave that authority’s internal sphere after it received it” (paragraph 43). The CJEU stated that such an interpretation of the word “internal” is supported by the objective pursued by the internal communications exception, namely to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions (paragraph 44).
194. The CJEU highlighted that the exceptions to the right of access to environmental information should be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal of disclosure. However, it noted that this rule of interpretation cannot limit the scope of an exception in disregard of its wording (paragraph 48). It further stated at paragraphs 49 and 50:
“It follows that the fact that an item of environmental information may be liable to leave the internal sphere of a public authority at a given time, inter alia where it is intended to be published in the future, cannot cause the communication that contains it to cease immediately to be internal in nature.
Furthermore, there is nothing in the wording of Article 4(1)(e) of [the AIE Directive] to suggest that the term ‘internal communications’ should be interpreted as covering only the personal opinions of a public authority’s staff and essential documents or as not including information of a factual nature. Such limitations would, moreover, be incompatible with that provision’s objective, namely the creation, for public authorities, of a protected space in order to engage in reflection and to pursue internal discussions.”
195. The CJEU also stated that the exception is not linked to the development or drawing up of documents, nor does it depend on the extent to which some administrative process has progressed. It stated that the end of such a process or of a stage thereof, marked by the adoption of a decision by a public authority or by the completion of a document, cannot, therefore, be a deciding factor for the applicability of the exception (see paragraph 56).
196. The CJEU held that the “internal communications” exception:
“…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” (paragraph 53) and
“…must be interpreted as meaning that the applicability of the exception to the right of access to environmental information provided for by it in respect of internal communications of a public authority is not limited in time. However, that exception can apply only for the period during which protection of the information sought is justified” (paragraph 70)
197. The CJEU noted that the lack of temporal limitation of the scope of the internal communications exception tallies with the objective to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions (paragraph 57). It commented that, as the Advocate General observed in his Opinion, “in order to determine whether the need to protect the freedom of thought of the people behind the communication concerned and the ability to exchange views freely continues to exist, account should be taken of all the factual and legal circumstances of the case on the data on which the competent authorities have to take a decision on the case which has been made to them, since, …, the right of access to environmental information crystallises on that date.” (paragraph 57).
198. The CJEU went on to reiterate that “whilst it is true that the exception provided for in Article 4(1)(e) of the [AIE Directive] is not limited in time, it is apparent, however, from that provision itself and the second subparagraph of Article 4(2) of the [AIE Directive] that refusal of access to environmental information on the ground that it is included in an internal communication must always be founded on a weighing of the interests involved” (paragraph 58).
199. The CJEU noted that the interests must be weighed on the basis of an actual and specific examination of each situation brought before the competent authorities in connection with a request for access to environmental information (paragraph 59). The CJEU held that in the case of the “internal communications” exception, that examination is especially important since the material scope of the exception is particularly broad and in order not to render the AIE Directive meaningless, the weighing of the interests that “is required in Article 4(1)(e) and the second subparagraph of Article 4(2) of [the AIE Directive] must be tightly controlled” (paragraph 60)
200. The CJEU outlined that it is apparent from Recital 1 of the AIE Directive that the reasons which may support disclosure and which a public authority must take into account when weighing the interests involve include bringing about “a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and…a better environment” (paragraph 62). It also stated that since the examination of a request must take account of the specific interests involved in each particular case, the public authority is required to examine any particulars provided by a requester as to the ground that may justify disclosure of the information sought (paragraph 63). Furthermore, the CJEU commented that public authorities must take into account the time that has passed since the internal communication and the information that it contains were drawn up; the exception can apply only for the period during which protection is justified in the light of the content of such a communication (paragraph 64). It stated:
“In particular, if, in the light of the objective of creating for public authorities, a protected space in order to engage in reflection and to pursue internal discussions, information contained in an internal communication could properly not be disclosed on the date of the request for access, a public authority may, on the other hand, be led to take the view that, on account of its age, the information has become historical and that it is accordingly no longer sensitive, where some time has passed since it was drawn up…” (paragraph 65).
201. Finally, as already noted, the CJEU stated at paragraph 69: “…[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. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical”. I draw Coillte’s attention to this, given its comment regarding the application of the public interest test in its recent submissions.
202. As previously indicated, 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 refusal, as is required by the exception itself and articles 10(3) and (4) of the AIE Regulations.
203. Records 1 to 4 and 6 comprise memoranda submitted by a named Coillte staff member to the Board seeking approval decisions from the Board on identified items (Decision Items) dated 31 July 2014, 27 January 2016, 7 April 2016, 28 April 2016, and 25 July 2013. I am satisfied that these memoranda are prepared to share information and for consideration among different staff / board members internally. There is no evidence to suggest that these memoranda have left Coillte’s internal sphere. I find, therefore, that they are “internal communications” within the meaning of the definition set out by the CJEU in Land Baden-Württemberg and article 9(2)(d) of the AIE Regulations is engaged.
204. Records 7 to 10 comprise extracts of the minutes relating to the Board Meetings dated 31 July 2014, 27 January 2016, 7 April 2016, and 28 April 2016 which considered Records 1 to 4. Records 11 to 15 comprise extracts of minutes relating to Board meetings dated 20 December 2016, 26 January 2017, 6 April 2017, 31 August 2017, and 31 January 2018. The minutes outline what occurred at the Board Meetings (i.e. they record information that was exchanged and distributed within Coillte between different individuals). There is no evidence to suggest that the minutes have left Coillte’s internal sphere. I find, therefore, that they are “internal communications” within the meaning of the definition set out by the CJEU in Land Baden-Württemberg and article 9(2)(d) of the AIE Regulations is engaged.
205. Accordingly, I am satisfied that all of the information at issue that falls within Category A (excluding Record 5) is an “internal communication” and article 9(2)(d) of the AIE Regulations is engaged.
206. While I have found all of the information at issue that falls within Category A (excluding Record 5) to be an “internal communication”, that is not the end of the matter. As noted above, when applying article 9(2)(d) of the AIE Regulations, it is necessary 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.
207. In considering the public interest served by disclosure, it is important to be mindful of the purpose of the AIE regime, as reflected in Recital 1 of the Preamble to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment.” The AIE regime thereby recognises a very strong public interest in openness and transparency in relation to environmental decision-making.
208. The AIE regime also acknowledges that there may be exceptions to the general rule of disclosure of information, as noted in Recital 16 of the AIE Directive, which provides that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases”. One such case is in respect of internal communications of public authorities. The general public interest in such an exception is evident from the European Commission’s Explanatory Memorandum on the AIE Directive, which notes that “it should be acknowledged that public authorities should have the necessary space to think in private. To this end, public authorities will be entitled to refuse access if the request concerns material in the course of completion or internal communications. In each such case, the public interest served by the disclosure of such information should be taken into account”. This was referred to by the CJEU in Land Baden Württemberg, which clearly stated that the exception is intended to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions (paragraph 44).
209. As noted above, the CJEU in Land Baden-Württemberg outlined that there is no temporal limitation on the operation of the exception regarding internal communications (see paragraphs 54 to 57). The CJEU further highlighted that as the exception is potentially very wide, the public interest balancing exercise required must be tightly controlled (paragraph 60). The interests involved must be weighed on the basis of an actual and specific examination of each situation brought before the public authority and myself on appeal (paragraph 59). Despite there being no temporal limit on the operation of the exemption, the CJEU introduced the question of the age of information into the balancing exercise. It noted that public authorities to which a request for access to environmental information in an internal communication has been made must take into account the time that has passed since that communication and the information that it contains were drawn up and that the exception can apply only for the period during which protection is justified in the light of the content of such a communication. It further commented:
“In particular, if, in the light of the objective of creating, for public authorities, a protected space in order to engage in reflection and to pursue internal discussions, information contained in an internal communication could properly not be disclosed on the date of the request for access, a public authority may, on the other hand, be led to take the view that, on account of its age, the information has become historical and that it is accordingly no longer sensitive, where some time has passed since it was drawn up (see, by analogy, judgment of 19 June 2018, Baumeister, C-15/16, EU:C:2018:464, paragraph 54)” (paragraph 65)
210. I have already set out Coillte’s and the appellant’s positions regarding article 9(2)(d) and article 10 of the AIE Regulations in this case. While I will not repeat or discuss them in full here, I confirm that I have considered them. Furthermore, I reiterate that while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the content of the information at issue that falls within Category A (excluding Record 5), and the extent to which I can describe certain matters in my analysis is limited. However, I also confirm that I have considered the specific information concerned.
211. In my view, public access to the information at issue, would provide insight into Coillte’s approach and considerations when reaching its decisions related to the Project (and wind energy development generally) and contribute to the accountability and transparency of that decision-making. The Project has been in development since 2011. According to its website , which was accessed by the Investigator during the course of this review, “[the Project] site is located between Ballyroan and Timahoe and comprises three Coillte land holdings which are of similar size, with the more elevated northern and central land parcels at Cullenagh Mountain. As planned, the wind farm will comprise 18 wind turbines with a maximum tip height of 131.5m. It will have the potential to generate enough clean energy to power around 20,000 homes, saving 33,000 tonnes of CO2 emissions per annum that would otherwise have been created by fossil fuels.” There is undoubtedly a strong public interest in the openness and transparency with regard to Coillte’s approach and considerations when undertaking a windfarm development. I also acknowledge Coillte’s comments in its recent submissions to this Office and confirm that I have had regard to Ireland’s overall decarbonisation targets and the role wind energy plays in reaching those targets.
212. Conversely, it must be noted that the exception provided for in article 9(2)(d) of the AIE Regulations is designed to protect the “private thinking space” of public authorities. I accept that there is a strong public interest in protecting the space required by Coillte to think in private, engage in reflection, and pursue free and frank internal discussions regarding the Project and the development process, including legal, financial, and planning matters. However, while I acknowledge Coillte’s comments that the internal debates and discussions in the records are relevant and under active consideration today by Coillte informing its current discussions in respect of its renewable land-use strategy; that one of the main purposes of maintaining past board minutes and papers is to facilitate the easy recalling of business and matters decided upon in previous meetings that are relevant to present and future matters; that disclosure would undermine ongoing discussions within Coillte in respect of the specific projects being discussed; that disclosure would cause a chilling effect, in that Coillte may be less willing to explore novel and innovative ideas for fear that such would become publicly available before all issues have been considered and addressed, which, in turn, could generate significant public opposition to novel proposals that Coillte may still be exploring, likewise having an adverse and unjust effect on Coillte’s reputation; that FuturEnergy Ireland is still in the process of determining and delivering its strategy for realising the Project and release of information discussing the previous strategy for delivery may undermine the current project; and that release to a requester who previously challenged the project “and which information is not legal required to be subject of public consultation under national planning legislation, materially risks delaying and hindering the delivery of that project, particularly in circumstances where stakeholder consultations are in contemplation, Coillte did not point to any specific information within Category A (excluding Record 5), including having considered its recent submissions and the table set out therein, disclosure of which would result in any of the harms identified all of which also appear to me to be hypothetical rather than reasonably foreseeable. It is also important to note that just because information is not required to be made available under the planning process this does not mean that it is not subject to release under the AIE Regulations. As outlined above, I have already found that all of the information at issue is not confidential having regard to the various laws cited by Coillte, including the equitable duty of confidence. Simply because an internal communication may provide some insight into the internal thinking of a public authority does not mean that it is automatically protected under this exemption.
213. Furthermore, I note Coillte’s contention that the appellant has historically objected to windfarm developments throughout the consenting processes, including up to judicial review proceedings in respect of the Project. Coillte submitted that, accordingly, the release of information to this particular requester, including persons associated with it, would result in the “martialling of pre-mature opposition to plans and strategies that are, at this moment, still under review and deliberation”. Again, Coillte did not point to any specific information within Category A (excluding Record 5), including having considered its recent submissions and the table set out therein, disclosure of which would result in the harms identified. I accept that the windfarm remains under development and the protection of the “private thinking space” is most prevalent when the issues concerned are live. However, it is unclear to me, and it was not explained adequately by Coillte how disclosure of any of the information at issue, which is now at least seven years old, relates to particular points in time regarding the Project and Coillte’s wind energy development that have passed, and concerns a Project that has been tied to the planning process and litigation, would result in opposition, further to what would generally be expected in the context of windfarm development and the public participation that it entails, to plans and strategies currently under review, which, while referred to generally by Coillte, were not explained in substantive detail.
214. As outline above, the exception provided for in article 9(2)(d) of the AIE Regulations is designed to protect “the private thinking space” of public authorities and I accept there is a strong public interest in protecting that space. However, while the information at issue in Category A (excluding Record 5) clearly contains some detail of the internal considerations of Coillte with regard to the Project and wind energy development, the information is at a high level, is information that has been found not to be confidential in accordance with the equitable duty of confidence, and is information that is at least seven years old and its relevance to any current matters has not been adequately explained. In my view, the impact of the disclosure of the information at issue should have no serious impact on the willingness of Coillte staff and Board members, in particular those at the senior level, to prepare similar internal communications or have such discussions at Board Meetings in future and should not undermine the maintenance of the “private thinking space” of Coillte.
215. Having regard to all of the above and examined all of the information at issue in Category A (excluding Record 5), I cannot see how release of that information would undermine the private thinking space of Coillte to the extent that it should be considered to outweigh the public interest in disclosure. Accordingly, I find, that Coillte’s was not justified under article 9(2)(d) of the AIE Regulations in refusing access to the information in Category A (excluding Record 5).
216. As outlined above, article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
217. I have found that article 9(1)(c) of the AIE Regulations applies in respect of certain information, namely: Category B. I have found that articles 9(1)(c), 8(a)(iv), and 9(2)(d) do not apply in respect of the remaining information, namely: Category A.
218. In accordance with article 10(5), I am satisfied that partial disclosure of Records 1, 2, 4, 6, 7, 8, 10, 11, 12, and 15 is possible. Records 3, 5, 9, 13 and 14 are to be released in full, subject to the redaction of information that falls outside the scope of the review. Records 16 and 17 are to be refused.
219. Having carried out a review under article 12(5) of the AIE Regulations, I hereby vary Coillte’s decision. I affirm Coillte’s decision under article 9(1)(c) of the AIE Regulations to refuse access to certain information, namely: Category B.
220. I annul Coillte’s decision under articles 8(a)(iv), 9(1)(c), and 9(2)(d) of the AIE Regulations to refuse access to the remaining information at issue, namely: Category A. I direct the release of that information, subject to the redaction of certain information which does not fall within the scope of this review.
221. 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.
Ger Deering
Commissioner for Environmental Information