Cinneadh
Mr X and An Coimisiún Pleanála
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-151066-P6K5C2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-151066-P6K5C2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether ACP was justified in refusing access to the information sought by the appellant, pursuant to article 8 (a) (iv) and 9 (2)(d) of the AIE Regulations.
1. An Coimisiún Pleanála (at the time, An Bord Pleanála) received an appeal (case reference PL06F.314485) dated 24 August 2022, of a decision of Fingal County Council to grant permission (subject to conditions), for a proposed development relating to the night-time use of the runway system at Dublin airport.
2. On 10 June 2024, the appellant made the following request to An Coimisiún Pleanála (at the time, An Bord Pleanála):
“This request is in relation to ABP Case Reference PL06F.314485.
The Inspector's latest report is complete and has been sent forward to the Board. As this latest report from the Inspector is now complete and no longer in the course of completion, I wish to make the following request:
• Please provide me with the Inspector's latest report.
• Please provide me with all materials shared between the Inspector and the Board or any Board member in relation to PL06F.314485.
• Please provide the materials in electronic format.”
3. ACP issued its original decision on 24 June 2024 and refused the appellant’s request under article 8(a)(iv) of the AIE Regulations stating that the case (Reference PL06F.314485) was still under consideration, that the Inspector’s Report is a “recommendation” to the Board and not the final decision and that once the Board has reached its final decision, all relevant information would be made publicly available through its public access services.
4. The appellant requested an internal review on 08 July 2024.
5. ACP issued its internal review decision on 07 August 2024 and reiterated that the case was still in the course of completion and that releasing the Inspector’s report would impact the impartial nature of the Board’s decision-making process.
6. The appellant appealed to this Office on 08 August 2024, stating that he did not agree that the release of the Inspectors report would adversely affect the confidentiality of the proceedings of public authorities and that the Inspector’s report is final, will be made public eventually and the interest in release far outweighs the withholding of it.
7. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the ACP. I have examined the content of the records at issue (which are now available online), I have additionally 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);
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’): and
e. the decision of the Court of Justice of the European Union (CJEU) in C-619/19 Land Baden-Württemberg v DR (Land Baden-Württemberg).
8. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
9. In accordance with article 12 (5) of the AIE regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
10. My review in this appeal is concerned with whether ACP was justified in withholding the information sought by the appellant under article 8 (a) (iv) and 9 (2) (d) of the AIE Regulations.
11. The original and internal review requests were made to An Bord Pleanála. During the course of this Investigation, An Coimisiún Pleanála was established, replacing An Bord Pleanála on 18 June 2025. In this regard, I am satisfied that the appropriate title for the public authority for the purposes of this decision is An Coimisiún Pleanála. Any references to An Coimisiún Pleanála which predate 18 June 2025 refer to and include its predecessor, An Bord Pleanála. It is noted that Part 17, section 495 (3) of the Planning and Development Act 2024 provides that references in any enactment, legal proceedings or document to An Bord Pleanála shall, on and after the commencement of the section, be construed as references to An Coimisiún Pleanála.
12. While the information relevant to this appeal was published by ACP after this Office received this appeal, the role of the Commissioner under the AIE Regulations is to review the internal review decision and to affirm, vary or annul the decision concerned. I consider that in the particular circumstances of this appeal, it is appropriate for me to consider the basis for refusal put forward by ACP in full. If the appellant or another requestor makes a request of this type in the future, and that request is also refused, it is unlikely that this Office would be in a position to issue a decision on that refusal before ACP has made a final decision. This decision may assist ACP on future AIE Request. I should note that decisions of the Commissioner are not considered to create precedent, and facts may vary from case to case, but the general principles set out below should be of assistance when dealing with future requests of a similar nature.
13. ACP in its original decision dated 24 June 2024, refused to provide the information sought on the basis that article 8 (a) (iv) of the regulations applied, namely that the planning appeal (case 314485) was still under consideration, that the Inspector’s Report is a recommendation to the Board and not the final decision and that once the Board has reached its final decision, all relevant information would be made publicly available through its public access service.
14. In its Internal review decision dated 07 August 2024, ACP reiterated that the case was still in the course of completion and that releasing the Inspector’s report would impact the impartial nature of the Board’s decision-making process.
15. In submissions to this Office dated 30 August 2024, ACP maintained its position previously set out in the original and internal review decision. It argued that the specific planning appeal remained under consideration and that releasing the Inspector’s report would adversely affect the confidentiality of the proceedings, as protected by law (Article 8 (a)(iv) of the AIE Regulations). ACP also argued that releasing the requested information could undermine the impartiality of the decision-making process which was still pending before ACP and that the Inspectors report serves as a recommendation, not a final decision.
16. ACP further stated that refusing to release the requested information was primarily based on the need to safeguard the confidentiality of its proceedings and that section 29 (1) of the Freedom of Information Act 2014 further reinforces this confidentiality, particularly when the release of records could potentially disrupt or undermine the deliberative processes of a public authority. ACP submitted that the premature disclosure of the Inspector’s report, which it says serves as a recommendation rather than a final decision, could compromise the integrity, impartiality, and fairness of the Board’s decision-making process. ACP also argued that maintaining the sanctity of the decision-making process and ensuring that all decisions are made “without external pressures or biases”, meant that it is essential that the Inspector’s report remains confidential until the Board has reached its final determination. ACP further argued that the premature release of the report could result in public speculation or otherwise may distort the Board’s independent evaluation of the appeal and jeopardizing the confidentiality of the proceedings could lead to undue influence or misinterpretation of the Board’s decision, thereby undermining public trust in the process.
17. In addition, ACP outlined the steps followed when a planning appeal is submitted;
• Consideration, examination and assessment of the proposed development, and all relevant documentation including the grounds of appeal and submissions on file.
• The preparation of an Inspector’s report and recommendation. The report and recommendation are formally moved to the Board with the case file.
• Finally, the Board’s detailed consideration of the case and all relevant intrinsic issues, which in turn gives the Board’s decision.
• Once a decision has been made by the Board, all relevant records become publicly available including the Inspectors report and recommendation.
18. Following correspondence from this Office dated 19 June 2025, which raised a number of queries, ACP provided a response dated 09 July 2025. ACP confirmed that the “proceedings” it wished to rely on for the purposes of article 8 (a)(iv) of the AIE Regulations were the appeal made to ACP under section 23 C of the Planning and Development Acy 2000, as amended, regarding a proposed development involving night time use of the runway system at Dublin airport and that this form of development constitutes a “relevant action” within the meaning of section 34C and as such is subject to a statutory appeals procedure.
19. ACP also clarified that at the time of the request, it considered that the proceedings were “confidential” as they involved an ongoing internal deliberative process, protected by law and the Inspectors report is part of this process and is not the final determination. ACP advised that a draft decision had been made under section 37R of the Planning & Development Act, 2000 (as amened) in relation to the appeal. The draft decision indicates ACP is considering adopting noise mitigation measures and operating restrictions which were not the subject of previous consultations between the local planning authority and the competent authority under the Aircraft Noise Regulations. ACP was therefore required to publish its draft decision and invite submissions or observations for its consideration prior to it proceeding to make a final decision. The draft decision and related report were made available through the ACP public access service. The final decision was published on 17 July 2025.
20. ACP also stated in its correspondence dated 19 June 2025, that releasing the report at the time of the request could lead to undue influence or public speculation, which could undermine the impartiality of the Commission's decision-making and that the confidentiality of those proceedings is protected by both section 29 (1) of the FOI Act and the Planning and Development Act 200, as amended.
21. ACP further outlined that article 9 (2)(d) of the AIE Regulations was potentially relevant at the time of the original request, as the records concerned internal communications within ACP, prepared “as part of its statutory decision-making process” and that these records formed part of ACP’s “internal deliberations” and were not yet part of the public record when the request was first considered.
22. With specific reference to article 10 (3) of the AIE Regulations, ACP argued that while the Inspector's report and all relevant records have since been released, ACP initially determined that withholding the report was necessary to “protect the integrity of the decision-making process” and that premature disclosure of deliberative materials could have led to misinterpretation or external influence, potentially compromising the impartiality of the final decision. ACP also considered the public interest in maintaining confidence in the fairness of the process and that releasing records “that are part of the deliberative process” before “the final determination” could have interfered with the independent evaluation and public trust in the statutory process.
23. In the appellants appeal to this Office dated 08 August 2024, he stated that he did not agree with ACP’s position that the release of the Inspectors report would adversely affect the confidentiality of the proceedings of public authorities. He argued that the report was final and that the interest in release far outweighs the withholding of it.
24. The appellant argued in his original request dated 10 June 2024 and appeal to this Office dated 07 August 2024, that previous decisions of this Office, make clear that documents should be released once they are complete or no longer being worked on and that the term “in the course of completion” cannot be used in reference to the process itself not being complete. The appellant stated that the report was final, not undergoing revision and it will not change irrespective of the Board's ultimate decision.
25. The appellant further stated that the release of the Inspector’s report would not adversely affect the confidentiality of the proceedings of public authorities, it will be made public eventually. The appellant also argued that getting access to this report after the decision is made gives the public very little time to prepare for any judicial review application, if so required.
26. ACP has provided this Office with a schedule of records, and a copy of the records at issue. The records are as follows:
• Inspectors report
• Report to Inspector (appendix to the main report)
• Appendix 4
• Appendix 5
27. Article 8 (a)(iv) permits refusal to disclose information where to do so would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law, (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts).
28. 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 the interest being protected. Further, as perLand Baden Wurttemberg 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.”
29. The public authority must demonstrate a clear link between disclosure of the specific information that it has withheld and any adverse effect. The risk of the confidentiality of the final stage of decision-making being undermined must be reasonably foreseeable and not purely hypothetical.
30. 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).
31. In the present case, ACP in its correspondence dated 09 July 2025, identified the “proceedings” as an appeal made to it under section 34C of the Planning and development Act 2000, (as amended) regarding a proposed development involving the night-time use of the runway system at Dublin airport. ACP explained that this form of development constitutes “a relevant action” within the meaning of section 34C, and as such is subject to a statutory appeals procedure.
32. It is crucial to note that article 8 (a) (iv) of the AIE Regulations only protects the “final decision-making stage” of the process and not the entire administrative process leading up to that decision. The ACP have repeatedly stated that the concluded Inspector’s report is not the final decision, but rather a recommendation to the Board/Commissioners. An Inspector’s report is also not binding on the Commissioners and in such circumstances, I cannot see how such a report could amount to or form part of the “final decision-making stage” of the process. I consider that the Inspector’s report is a step in the administrative procedure, at the end of which those authorities hold their proceedings as outlined in Saint- Gobain. For this reason, I consider that the information sought does not form part of the final decision-making stage of the process, and article 8(a)(iv) cannot be found to apply.
33. As well as this, having considered the contents of the information sought, and the submissions of the parties, I cannot see how the disclosure of the Inspector’s report and related records, in this particular ACP appeal would have any adverse effect on the final decision-making stage of the ACP appeal. The CJEU case of Saint Gobain, which I have referred to above, provides useful guidance in assessing whether the protections of article 8 (a) (iv) extend to the type of information requested in this appeal. The Advocate General at paragraph 56 of his opinion adopted the approach taken by the German courts after the CJEU’s ruling in Flachglas, namely that information forming the factual basis for decisions taken should be protected only if it allows clear conclusions to be drawn regarding the deliberation process. I am not satisfied that the release of the information requested would allow for such conclusions to be drawn regarding the deliberation process of ACP, and therefore I cannot find that article 8 (a) (iv) applies in the circumstances of this appeal.
34. I will also note that ACP referred to section 146 (5) of the Planning and Development Act 2000, as amended in its original decision to justify its position to withhold the information sought. The ACP stated that section 146 (5) states:
“(5) Within 3 days following the making of a decision on any matter falling to be decided by it in performance of a function under or transferred by this Act or under any other enactment, the documents relating to the matter-
(a) Shall be made available by the Board for inspection at the offices of the Board by members of the public, and
(b) May be made available by the Board for such inspection n-
i. at any other place, or
ii. by electronic means,
As the Board considers appropriate.”
35. This section cited is prescriptive rather than prohibitive. It does not prohibit the ACP from sharing the Inspector’s report (or other documents) prior to “the 3 days following the making of a decision…” rather it prescribes that it “must” be made public within 3 days. In this regard, I do not accept that section 146 (5) of the Planning and Development Act 2000, as amended protects the “confidentiality” of the proceedings as required under article 8 (a) (iv) of the AIE Regulations.
36. ACP stated that article 9 (2) (d) of the regulations was potentially relevant at the time of the original request, as the records concerned, particularly the Inspector’s report constituted internal communications within ACP, prepared as part of its statutory decision-making process. The ACP argued that these records formed part of its internal deliberations and were not yet part of the public records when the request was first considered and that releasing them prematurely could have interfered with the independence of the process and given rise to public speculation or misinterpretation.
37. 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.
38. 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.
39. 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”.
40. I am satisfied that at the time of the internal review decision, the Inspectors Report had not left the “internal sphere” of ACP and therefore it could at that time be considered an internal communication within the meaning of article 9(2)(d).
41. While I have found the records at issue 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.
42. 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.
43. 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).
44. As outlined above, ACP argued that the release of these records may be injurious to the impartiality of the Board in determining this case and while the case is ongoing and a decision has not yet been formulated, the release of the information could impair a future decision of the Board. ACP also submitted that the premature release of such records may contaminate the decision-making process and impact the impartiality of the decision-making process. ACP also stated that the premature release of the records could result in speculation and misinterpretation by the public.
45. I do not accept the arguments put forward by ACP regarding the interests served by the refusal against the public interest served by disclosure. ACP is an independent, statutory, quasi-judicial body that decides appeals of planning decisions made by local authorities. The personnel comprising the decision makers are experienced adjudicators with significant experience and/or practice within the industry. The fact that the relevant appeal concerns a highly controversial operation of nighttime flights is of importance. The particular planning appeal has been subject to notable public scrutiny, being the subject of considerable public opinion. The relevant decision makers are not immune from such public debate. It does not follow that the release of the Inspector’s report in this particular appeal could or would result in an interference with the decision-making process or the impartiality of the Board. It appears extremely remote to suggest such experienced adjudicators would succumb to external pressures as a result of this particular set of records being released.
46. In the specific circumstances of this case, it is important to acknowledge the fact this appeal related to a proposed development concerning the number of flights from the runway of Dublin airport at nighttime and that the particular appeal before the ACP was subject to considerable public observation, scrutiny, commentary and extensive media coverage. It is not reasonable to say that the release of the Inspector’s Report would bring further exponential pressure on the decision makers such to risk the impartiality of the relevant Commissioners. It is also unreasonable to suggest that a reason for withholding the information is to prevent “misinterpretation” of the report. Any person reviewing the Inspector’s report prior to the final decision, ought to be aware that the report is a recommendation, and the Commission is not required to follow the recommendation contained therein. Further, it is unclear how the final determination together with the Inspectors report could clarify any potential, albeit unspecified “misinterpretations.”
47. Based on the foregoing, I have therefore concluded that in the particular circumstances of this appeal, the balance of public interest is weighted in favour of release. It follows therefore, that article 9 (2) (d) does not apply in this case and the ACP can not rely on it to justify the withholding of the records at issue.
48. Having carried out a review under article 12(5) of the AIE Regulations on behalf of the Commissioner for Environmental Information, I hereby annul ACP’s decision to refuse access to the information requested.
49. As the information has now been released, I make no further direction.
50. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information