Cinneadh
Ms. E. & Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-155010-Q0P4S7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-155010-Q0P4S7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to information contained in 64 records which it considered to fall within the scope of the appellant’s request under article 9(2)(d) of the AIE Regulations and 2 of those records under article 9(1)(a) of the AIE Regulations
01 May 2026
1. On 01 November 2024, the appellant submitted a request to the Department of Agriculture, Food and the Marine (the Department) seeking access to the following:
“The Forestry Licence Viewer ('FLV') was introduced by DAFM in January 2021.
Please provide, by email, for the period 1 January 2021 to 31 December 2021 information relating to:
1. improvements proposed to be implemented to the FLV - from 1 January 2021 - but not, as at 31 December 2021, implemented.
2. improvements contemplated/considered to be implemented to the FLV (since 1 January 2021) , but where it had been decided (as at any date up to 31 December 2021) not to implement the improvements contemplated/considered.
3. improvements being contemplated/considered to be implemented to the FLV (at any time between 1 January 2021 and 31 December 2021)
4. improvements actually implemented to the FLV during the period 1 January 2021 to 31 December 2021.”
2. On 28 November 2024, the Department issued its decision granting the request and providing the appellant with 3 records.
3. On 29 November 2024, the appellant sought an internal review to include a review of the fee charged.
4. On 27 December 2024, the Department issued its internal review decision and confirmed 67 records had been identified, 3 of which had already been provided and the remaining 64 were refused under article 9(2)(d) of the AIE Regulations. The internal review decision noted the original decision maker had completed the Fees Table incorrectly but the charge of €50 for the search and retrieval of records was correct.
5. On 05 January 2025, the appellant appealed to my Office. Following receipt of this appeal this Office liaised with the Department in an attempt to resolve this appeal informally. On the 14 October 2025 the Department provided a submission to this Office and sought to rely on article 9(1)(a) in relation to 2 of the records.
6. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
a. the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. In accordance with article 12 (5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it.
9. On the 5 August 2025 the Department confirmed to the appellant that they were waiving the fee in this case. The Department identified 64 records relevant to the request. The Department relied on an exception under article 9(2)(d) of the AIE Regulations for all 64 records and on article 9(1)(a), for 2 of those records. Therefore, the scope of this review is to determine whether the Department was justified in refusing access to 64 records under article 9(2)(d) of the AIE Regulations and 2 records under article 9(1)(a).
Article 9(1)(a)
10. Article 9(1)(a) 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 international relations, national defence, or public security. This provision seeks to transpose Article 4(2)(b) of the AIE Directive, which in turn is based on Article 4(4)(b) of the Aarhus Convention. Article 9(1)(a) must also be read alongside article 10 of the AIE Regulations.
11. When relying on article 9(1)(a) of the AIE Regulations, the public authority should identify the relevant limb(s) of the provision concerned (i.e. international relations, national defence, or public security) and show how disclosure of the information at issue would have an adverse effect on that limb(s). Again, 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 international relations, national defence, or public security being undermined must be reasonably foreseeable and not purely hypothetical.
12. The term “public security” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, I note that Regulation (EU) 2018/1807 of the European Parliament and of the Council of 14 November 2018 on a framework for the free flow of non-personal data in the European Union outlines, at Recital 19:
“The concept of ‘public security’, within the meaning of Article 52 TFEU and as interpreted by the Court of Justice, covers both the internal and external security of a Member State, as well as issues of public safety, in order, in particular, to facilitate the investigation, detection and prosecution of criminal offences. It presupposes the existence of a genuine and sufficiently serious threat affecting one of the fundamental interests of society, such as a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or the peaceful coexistence of nations, or a risk to military interests. In compliance with the principle of proportionality, data localisation requirements that are justified on grounds of public security should be suitable for attaining the objective pursued, and should not go beyond what is necessary to attain that objective. ”
13. The Aarhus Guide (p.86) explains that:
“The Convention does not define the terms “international relations”, “national defence” or “public security”, but it is implicit that the definition of such terms should be determined by the Parties in accordance with their generally accepted meaning in international law. Many national Governments already have similar exceptions in place and have interpreted them narrowly. Some countries have chosen to require information concerning the environment to be made publicly accessible, regardless of how it affects international relations, national defence or public security .”
14. The Department submits
“The documents refused under 9(1)(a) include a ‘user stories’ document which outlines IT testing to be carried out on the site and a document outlining procedures for the publication of documents to the FLV for staff members to follow. As in the above case, release of such information could jeopardise the security of the IT systems in place and the procedures followed by staff when operating the system ”
15. As indicated above, the wording of article 9(1)(a) of the AIE Regulations makes it clear that there must be some adverse effect on public security in order for the exception to apply. There must be a clear link between disclosure of the specific information that it has withheld and any adverse effect. The risk of public security being undermined must be reasonably foreseeable and not purely hypothetical. A mere assertion of an expectation of harm is not sufficient.
16. The Department sought to rely on article 9(1)(a) in relation record 15 and 40. Having reviewed the records I fail to see how the release of the records would adversely effect public security. Neither have the Department given any persuasive arguments in this regard. Accordingly, I do not find that the Departments reliance on article 9(1)(a) of the AIE Regulations is justified regarding records 15 and 40.
Article 9(2)(d)
17. 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.
18. 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.
19. The term “internal communications” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, the decision of the CJEU in Land Baden-Württemberg provides some guidance on the internal communications exception. The Court stated that the exemption can be interpreted as “…must be interpreted as meaning that the term ‘internal communications’ covers all information which circulates within a public authority and which, on the date of the request for access, has not left that authority’s internal sphere – as the case may be, after being received by that authority, provided that it was not or should not have been made available to the public before it was so received”.
Records at Issue
20. Firstly, I must be cognisant that it is not the function of this Office to disclose information, meaning that the detail that I can give about the content of the documents and the extent to which I can describe certain matters in my analysis is limited.
The records at issue may be summarised as follows:
| No | Document | Exception | Description | ||||
| 1 | DPIA updated with HOD recommendation 11.12.20.pdf | 9(2)(d) | Internal Data Protection Impact Assessment | ||||
| 2 | CH attention to have a drop down or not have a drop down.pdf | 9(2)(d) | Internal Emails | ||||
| 3 | Coillte upload User testing 2.pdf | 9(2)(d) | Internal Emails | ||||
| 4 | Coillte upload User testing 5.pdf | 9(2)(d) | Internal Emails | ||||
| 5 | Coillte upload user testing 3.pdf | 9(2)(d) | Internal Emails | ||||
| 6 | Coillte upload user testing 4.pdf | 9(2)(d) | Internal Emails | ||||
| 7 | Coillte upload user testing 6.pdf | 9(2)(d) | Internal Emails | ||||
| 8 | Coillte upload User testing.pdf | 9(2)(d) | Internal Emails | ||||
| 9 | Draft PR on flv attachment.pdf | 9(2)(d) | Draft press release. | ||||
| 10 | Draft PR on FLV.pdf | 9(2)(d) | Email with attached Press release | ||||
| 11 | Extract Q28 DPIA Forestry Licence viewer.pdf | 9(2)(d) | Extract from record 1 | ||||
| 12 | FLV phase 3 requirements Submission payment.pdf | 9(2)(d) | Internal Email | ||||
| 13 | FLV Phase 3 Requirements_ Submission, Payment and GeoServer.pdf | 9(2)(d) | Internal Email | ||||
| 14 | FLV requirements Forestry Licence viewer.pdf | 9(2)(d) | Document outlines high level process to implement 3rd phase of the FLV | ||||
| 15 | FLV submissions user testing attachment.pdf | 9(2)(d) 9(1)(a) | Document outlines high level process to implement 3rd phase of the FLV | ||||
| 16 | FLV Submissions User testing.pdf | 9(2)(d) | Internal Email | ||||
| 17 | FLV Update .pdf | 9(2)(d) | Internal Email | ||||
| 18 | FLV update CH to MIin SG 240624.pdf | 9(2)(d) | Internal Email | ||||
| 19 | Forestry Licence Decision Page of the Dept's Website 16122020.pdf | 9(2)(d) | Text on forestry licence applications | ||||
| 20 | Forestry Licence viewer privacy notice.pdf | 9(2)(d) | Data Protection Notice | ||||
| 21 | FW FLV phase 2 documents Attachment 1.pdf | 9(2)(d) | Internal Correspondence Email | ||||
| 22 | FW FLV Phase 2 Documents Attachment 2.pdf | 9(2)(d) | Internal Correspondence | ||||
| 23 | FW FLV Phase 2 Documents.pdf | 9(2)(d) | Internal Emails | ||||
| 24 | FW payment receipt.pdf | 9(2)(d) | Internal Email | ||||
| 25 | FW_ Coillte Upload User testing.pdf | 9(2)(d) | Internal Email | ||||
| 26 | FW_ FLV Phase 2 Documents.pdf | 9(2)(d) | Internal Email | ||||
| 27 | FW FLV Phase 3 Requirements Submission, Payment and GeoServer 2.pdf | 9(2)(d) | Internal Emails | ||||
| 28 | FW FLV Phase 3 Requirements Submission, Payment and GeoServer.pdf | 9(2)(d) | Internal Emails | ||||
| 29 | FW_ FLV Submissions - code complete.pdf | 9(2)(d) | Internal Email | ||||
| 30 | FW_ FLV User Testing .pdf | 9(2)(d) | Internal Email | ||||
| 31 | FW_ FLV User Testing update.pdf | 9(2)(d) | Internal Email | ||||
| 32 | FW_ Submission Receipt 2.pdf | 9(2)(d) | Internal Email | ||||
| 33 | FW_ Submission Receipt.pdf | 9(2)(d) | Internal Email | ||||
| 34 | iFORIS - Functional Specification Coillte Felling Screens V1.0 Updated.pdf | 9(2)(d) | Document outlines high level processes to implement the new screens | ||||
| 35 | my sign off attachment.pdf | 9(2)(d) | Internal Correspondence | ||||
| 36 | my sign off.pdf | 9(2)(d) | Internal Emails | ||||
| 37 | Phase 3 Go Live 24062021.pdf | 9(2)(d) | Internal Emails | ||||
| 38 | Private Licences.pdf | 9(2)(d) | Internal Email | ||||
| 39 | Procedures for the publication of documents 3.pdf | 9(2)(d) | Internal Emails | ||||
| 40 | Procedures for the publication of Documents to the forestry licence Viewer.pdf | 9(2)(d), 9(1)(a) | Internal Procedures Document | ||||
| 41 | Procedures for the publication of documents.pdf | 9(2)(d) | Internal Email | ||||
| 42 | Re Submissions.pdf | 9(2)(d) | Internal Email | ||||
| 43 | Referral correspondence for next coillte batch.pdf | 9(2)(d) | Internal Email | ||||
| 44 | Regarding submissions 2.pdf | 9(2)(d) | Internal Email | ||||
| 45 | release sign off coillte felling attachment.pdf | 9(2)(d) | Internal Correspondence | ||||
| 46 | Release sign off Coillte felling.pdf | 9(2)(d) | Internal Email | ||||
| 47 | Release Sign-Off Coillte Felling FIP and FLV.pdf | 9(2)(d) | Internal Correspondence | ||||
| 48 | Requirements for Iforis Functionality for Coillte attachment.pdf | 9(2)(d) | PDF with screenshots of how to upload | ||||
| 49 | Requirements for Iforis Functionality for Coillte felling 2.pdf | 9(2)(d) | Internal Email | ||||
| 50 | Requirements for Iforis Functionality for Coillte felling.pdf | 9(2)(d) | Internal Email | ||||
| 51 | RE_ Coillte Upload User testing 2.pdf | 9(2)(d) | Internal Email | ||||
| 52 | RE_ Coillte Upload User testing.pdf | 9(2)(d) | Internal Email | ||||
| 53 | RE FLV Phase 3 Requirements Submission, Payment and GeoServer.pdf | 9(2)(d) | Internal Email | ||||
| 54 | RE_ FLV Submissions User testing my comments.pdf | 9(2)(d) | Internal Email | ||||
| 55 | RE_ Forestry IT developments.pdf | 9(2)(d) | Internal Email | ||||
| 56 | RE_ Notification of submission through FLV.pdf | 9(2)(d) | Internal Email | ||||
| 57 | RE_ Payment Receipt 2.pdf | 9(2)(d) | Internal Email | ||||
| 58 | RE_ Requirements for iFORIS functionality for Coillte Felling.pdf | 9(2)(d) | Internal Email | ||||
| 59 | sign off.pdf | 9(2)(d) | Internal Email | ||||
| 60 | TFL notice of Decision.pdf | 9(2)(d) | Email to external email | ||||
| 61 | to have a drop down 2.pdf | 9(2)(d) | Internal Email | ||||
| 62 | to have a drop down 3.pdf | 9(2)(d) | Internal Email | ||||
| 63 | User stories forestry licence viewer.pdf | 9(2)(d) | User Stories for FLV | ||||
| 64 | welcome page online submission.pdf | 9(2)(d) | Wording for online submission portal |
21. Record 1 is an Internal Data Protection Impact Assessment and contains revisions and comments from internal staff. Records 2 to 8 are internal emails containing comments and observation from staff.
Record 11 is an extract from record 1.
Records 12, 13, 16, 23 to 33, 36 to 39, 41 to 44, 46, 49 to 59, and 61 and 62 are internal emails containing comments and observation from staff. Having reviewed these records, I am satisfied that they are internal communications and can be said to contain information relating to the Department’s internal thinking, including suggestions and observations on the development of the FLV.
22. Record 9 is a draft press release. Record 19 consists of text relating to forestry licence applications and record 20 is a data protection notice. Each of these records have been published on the Department’s website with predominantly the same text. Record 60 is an email to an external email address. Record 64 consists of wording for the online submission portal. In my view each of these records fails to meet the requirements of internal communications and as such the Department cannot rely on exception 9(2)(d) in relation to these records.
23. Record 10 is an internal email with an attached press release. Record 14 and 15 are identical and consist of an internal document which outlines a high-level process to implement the third phase of the FLV. Records 17 and 18 are identical emails providing an update on the FLV to the minister. Records 21,22, 35, 45 and 47 are internal mails seeking sign off for the FLV. Record 34 is an internal document which outlines a high-level process to implement the new screens, functionality and workflow for Coillte Felling licences on iFORIS. Record 40 is an internal document outlining procedures for the publication of documents to the FLV. Record 48 is a pdf document with screenshots detailing how to upload records. Record 63 consists of ‘User Stories’ and contains no comments or observations from internal staff. While each of these records could fall within the category of internal communication it is also necessary to consider articles 10(3) and (4) of the AIE Regulations.
24. 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.
25. 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.
26. 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).
27. 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)
28. Having reviewed the records at issue they can be grouped into three categories, records which are internal communication and are exempt from release, records which are not internal communications and should be released, and records which are internal communications but the public interest in disclosure outweighs the public interest of refusing release.
29. Records 1, 2 to 8, 11, 12, 13, 16, 23 to 33, 36 to 39, 41 to 44, 46, 49 to 59, and 61 and 62 are internal communications and all share a common feature of discussions among staff regarding the development of the FLV. I accept that there is a public interest in transparency around the development and operation of the FLV, however I am satisfied that the public interest served by disclosure of these records is outweighed by the public interest served by protecting the Departments ability to communicate freely. In my view a release of these records would disclose the substance of internal staff discussions and breach the free thinking space of the Department and as such I consider the Department were justified in refusing the release of these records.
30. Record 9 is a draft press release and has been published here . Record 19 has been published here , with the only difference in the text being the date. Record 20 has been published here . Each of these records has left the sphere of the Department and cannot be considered internal communications. Record 60 is an email to an external email address and as such is not an internal communication and could be released with personal information redacted. Record 64 contains wording for the FLV online submission portal and is clearly meant to be a public facing record. None of these records meet the requirement of internal communications and as such I find the Department were not justified in refusing the release of these records under article 9(2)(d) of the AIE Regulations.
31. The remaining records, those being 10, 14,15,17, 18, 21,22, 34, 35, 40, 45, 48 and 47 could be viewed as internal records but there is nothing in their content that would divulge or impact upon the thinking space of the Department. Details on each of these records have been provided above. Records 14 and 15 which are identical and record 34 are internal records which detail planned updates for the FLV at a high process level and are particularly relevant to the appellant’s request. While each of these records can fall into the category of internal communications, article 9(2)(d) of the AIE Regulations cannot be viewed as a blanket style exception to be applied to all internal communications and the public interest in disclosure needs to be weighed against the requirement to provide a free thinking space for public authorities. Having reviewed each of these records I would note there are no comments or observations in these specific records that would infringe on the right of the Department to have a protected space to engage in reflection. I consider the public interest in disclosure is particularly strong as these records concern the design and development of the FLV which was introduced to facilitate access to information. I am not satisfied that the release of these specific records would undermine the Departments private thing space. As such I direct the Department to release these records to the appellant.
32. For the purpose of clarity, I find the Department was justified in refusing access to records 1, 2 to 8, 11, 12, 13, 16, 23 to 33, 36 to 39, 41 to 44, 46, 49 to 59, and 61 and 62 under, article 9(2)(d) of the AIE Regulations. I direct the Department to release records 9, 19, 20, 60 (with personal information redacted), 64, 10, 14,15,17, 18, 21,22, 34, 35, 40, 45, 48 and 47.
33. Having carried out a review under article 12(5) of the AIE Regulations, I hereby vary the Department’s decision.
34. I affirm the Department’s decision to refuse access to the records detailed at point 32 under article 9(2)(d) of the AIE Regulations.
35. I annul the Departments decision to refuse access to records 15 and 40 under article 9(1)(a) of the AIE Regulations.
36. I annul the Department decision to refuse access to records 9, 19, 20, 60, 64, 10, 14,15,17, 18, 21,22, 34, 35, 40, 45, 48 and 47, under article 9(2)(d) of the AIE Regulations and direct release of these records to the appellant.
37. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Gemma Farrell
On behalf of the Commissioner for Environmental Information