Decisions List

The Commissioner found that the Department's decision to refuse parts of the request was not justified except in relation to those parts of the information which she found qualified for legal professional privilege. She found that certain records and parts of records came within the exception in Article 8(a)(iv) of the Regulations and that, in accordance with Article 10, the public interest in granting that part of the request did not outweigh the interest served by refusing it. She found that the other withheld records did not come within the exceptions in Articles 8 and 9 of the Regulations and she directed their release. She thereby varied the decision of the Department and directed it to make environmental information available to the Appellant. Her decision also commented upon the handling of the request by the Department.

The Commissioner found that the Courts Service was acting on behalf of the Courts who were acting in a judicial capacity in relation to the information at issue. This means that, in relation to the holding of the affidavits, the Courts service is excluded by sub-article 2 of Article 3 from the definition of public authority for the purposes of the Regulations. Accordingly, the Commissioner has no jurisdiction to direct the release of the environmental information sought.

The Commissioner found that none of the relevant grounds of exemption listed in article 8 of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007) applied to the one document within the scope of the request and that the Department is not entitled to withhold the information sought. Specifically, the Commissioner found that the relevant article 8 exemptions were disapplied by virtue of the limitations on the operation of those exemptions provided for at article 10(1) - where a "request relates to information on emissions into the environment". The Commissioner also found that the purported restriction on the operation of article 10(1), which is provided for in article 10(2), did not apply as the latter provision is not in accordance with the provisions of Directive 2003/4/EC [2003] OJ L 41/26 at Article 4, paragraph 2. [Article 10(2) purports to disapply article 10(1) in a case where the information sought refers to discussions at a meeting of the Government.]

The Commissioner found that: (i) the Hill of Allen Action Group is an "applicant" within the meaning of that term in article 3(1) of the Regulations; (ii) the information sought is "Environmental Information" within the meaning of that term in article 3(1) of the Regulations; (iii) article 8(a)(iv) of the Regulations entitles the Council to withhold those parts of the information which qualify for legal professional privilege and the public interest served by disclosure does not outweigh the public interest served by refusal having regard to article 10(3) of the Regulations; (iv) article 9(1)(b) of the Regulations does not apply to any of the remaining information and the Council is not entitled to rely on this exception to withhold it; (v) with the exception of a small amount of information relating to the quarry's reserves, article 9(1)(c) of the Regulations does not apply to the remaining information and the Council is not entitled to rely on this exception to withhold it and (vi) article 9(2)(c) of the Regulations does not apply to any of the remaining information and the Council is not entitled to rely on this exception to withhold it.

The Commissioner found that the charging of a fee by the Council was not in accordance with article 5 of the Directive as implemented by article 15 of the Regulations.