Decision
Mr F and Coillte
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-121432-Q7F8C0
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-121432-Q7F8C0
Published on
Whether Coillte was justified in refusing the request under article 9(2)(a) of the AIE Regulations
27 March 2024
1. This case relates to a request for information as follows:
“A copy of all Harvest Plans (as required under the DAFM’s [Department of Agriculture, Food and the Marine’s] Standards for Felling and Reforestation) produced by Coillte in relation to felling operations carried out in Counties Leitrim and Cavan in 2021.”
2. The request was made on 17 January 2022. Coillte responded on 14 February requesting the applicant to refine the request as it was deemed manifestly unreasonable given the volume or range of information sought and suggesting it be refined to no more than 14 harvest plans.
3. The applicant in response, on 15 February, displayed willingness to consider refining his request, suggesting he would need some “sound feedback” for him to consider it to be justified and requesting a list of sites from which to choose the 14 plans. He further sought clarity on what Coillte considered a harvest plan to be as he may have been in a position to refine his request in that regard.
4. The AIE officer at Coillte acknowledged the applicant’s correspondence on 22 February, indicating that assistance was being sought on his query and on her refinement request of 14 February.
5. On 23 February, the same officer contacted the applicant to ask him to provide Coillte with information on the reason for his request for information, “as we may be better able to help you in choosing the appropriate sites”, indicating that if Coillte did not understand the information being sought, it would be unable to choose the sites for the applicant. The applicant responded on the same day to remind the AIE officer that no applicant is required to state his or her interest in making a request, in accordance with article 6(2) of the Regulations and to request a list of all the sites from which to choose the 14. He also stated that he did not consider his original request to be manifestly unreasonable. He gave a deadline by which to receive the list of sites of close of business the next day, 24 February, otherwise he would seek an internal review on the basis of a deemed refusal, in accordance with article 10(7) of the Regulations.
6. On 25 February, the applicant requested an internal review of his request on the basis of a deemed refusal, noting again that he did not consider his request manifestly unreasonable.
7. On 23 March, Coillte issued its internal review decision, which was to refuse the request on the basis of article 9(2)(a) of the Regulations, citing previous decisions of the Office of the Commissioner of Environmental Information (OCEI) and reasons grounded in article 9(2)(a). It was of the view that:
“compliance with the request within the timeframe permitted by the AIE Regulations would involve it in disproportionate cost and effort and would obstruct and significantly interfere with the normal course of Coillte’s activities and that it would, further, impose a particularly heavy burden on Coillte.”
8. The decision referred also to Coillte having complied with the requirements of article 10 of the Regulations, namely having considered the grounds of refusal on a restrictive basis (article 10(3)) and having weighed the public interest served by disclosure against the interests served by refusal of the request (article 10(4)).
9. On 29 March 2022, the appellant brought this appeal to my Office.
10. During the course of this appeal, Coillte provided to this Office two examples of typical harvest plans, for review.
11. I have now completed my 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 by the Department. I have also examined the contents of the records at issue. In addition, I have had regard to:
• (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”); and
• 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”).
12. What follows does not comment or make findings on each and every argument advanced but I have considered all materials submitted in the course of the investigation.
13. 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. This review is solely concerned with whether Coillte was justified in refusing access to the information requested on the basis that the request was manifestly unreasonable.
14. I note that the AIE officer at Coillte, in the course of correspondence with the applicant, asked him why he was requesting the information sought, the better to be able to help him in choosing appropriate sites. On the face of it, as the applicant pointed out to Coillte in response, this question would appear to breach article 6(2) of the AIE Regulations, which provides that an “applicant shall not be required to state his or her interest in making the request.” I do not find that there was any intention on the part of the AIE Officer to breach article 6(2) of the AIE Regulations, as it appears to me that the question was more geared to garnering knowledge of the type of information that the requester was seeking rather than being an attempt to ascertain his reasons for seeking it.
15. I must take issue with Coillte’s failure to seek a refinement of the appellant’s request until three days before the one-month deadline by which it was bound to issue a decision. It still had time at that point to do so if it was of the view that the request fell within the parameters of article 7(2)(b), namely that it was unable, because of the volume or complexity of the information requested, to make a decision within one month from the date of receipt of the request, and extending by a further month the time within which to make a decision. Such an extension would have given Coillte a further month to work on the request, with a distinct possibility of its being able to respond appropriately to the request and obviating the need for this appeal. I urge Coillte, as I do all public authorities, to be more focussed on the timelines provided in the AIE Regulations.
The positions of the parties
The Appellant’s Case
16. The appellant contends that the information requested is of a type that Coillte should hold in a manner that is readily accessible and therefore should not need compiling. He contends also that if harvest plans are provided to contractors working for Coillte, this fact suggests that the plans are already compiled and that the information requested is of a type that should be actively disseminated by Coillte, adding that any environmental information subject to active dissemination by a public authority cannot be refused under the AIE Regulations. He states that the public should not be compromised in its access to environmental information by any failure by Coillte to make reasonable efforts to maintain such information in a manner consistent with article 5(1)(b) of the AIE Regulations, which states that public authorities shall “make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible by information technology or by other electronic means”. He submits that the provision of environmental information should not be seen as an activity that interferes with Coillte achieving its commercial targets but as a core part of its responsibilities as a public authority.
17. The appellant does not accept Coillte’s contention that personal information and commercially sensitive information must be redacted from harvest plans as, he contends, there is no requirement for them to contain this information. Further, it is his view that it is very unlikely that redactions in harvest plans should be necessary. Should such be necessary, it is his view that they would relate to very specific and easily identifiable parts of the plans.
18. The appellant maintains that his request is not manifestly unreasonable and notes that his willingness to consider refining his request was nothing more than a courtesy. He asserts that had he responded with a refined request on the same day as Coillte’s request, it would still have been difficult for it to have met the one-month deadline. He states that for a refusal under 9(2)(a) to be justified, it must be manifestly unreasonable, not just voluminous.
19. The appellant submits that if, as Coillte maintains, it would take two days’ work to provide 14 harvest plans, then for the 73 harvest plans relating to Counties Cavan and Leitrim in 2021, the subject of the appellant’s request, it would take approximately 10 days’ work, and taking these two counties as being average, it would take four and a half months’ work to provide information on sites for the whole of the country. In consequence, he contends that as there is nothing to suggest that the information he seeks is not releasable under the AIE Regulations, Coillte should reassess how it stores this information in order to make its release more efficient. Further, he states that Coillte is a public authority and is required to fulfil its obligations under the AIE Regulations.
20. The appellant contends that Coillte is invoking article 9(2)(a), a discretionary ground, routinely, in defiance of the request in the Ministerial Guidelines that it be used sparingly. He adds that Coillte’s decision to refuse his request appears to be based more on its resources rather than on the reasonableness of the request itself. He submits that, though public authorities have many demands and limited resources, this does not excuse them from compliance with their obligations under the AIE Regulations. He further states that Coillte must ensure, as a public authority, that it is adequately resourced to fulfil its duties under the AIE Regulations.
21. The appellant also contends, contrary to what he says is an implication in the internal review decision, that there is no scope for more than one version of a harvest plan.
22. He further contends that, as it is a requirement imposed on contractors who carry out work on behalf of Coillte, by the Department of Agriculture, Food and the Marine’s (Interim) Standards for Felling and Reforestation document, to be familiar with the content of harvest plans, then the information contained therein has already been prepared and made available and can likewise be disseminated to the public.
23. The appellant also submits that it is in the public interest that Coillte maintain environmental information efficiently and effectively and be more proactive in disseminating it, as there is a public interest in scrutiny of Coillte’s activities because they relate to work which can have an impact on the environment. Further, that harvest plans are a key component of the information relevant to the implementation of felling licences and the public should be in a position to see the plans that are in place in order to relate them to the conditions attached to issued licences.
24. The appellant maintains that there is no evidence to suggest that Coillte addressed its obligations under article 10(5) of the AIE Regulations, namely whether it addressed the possibility of separating and releasing environmental information that it holds together with information subject to the exemptions in articles 8 and 9.
Coillte’s Case
25. Coillte’s contention is that the appellant’s request is manifestly unreasonable, thus relieving it, by virtue of article 9(2)(a) of the AIE Regulations, of the requirement to provide the requested information to the appellant. This article gives discretion to a public authority to refuse to make environmental information available where the request “is manifestly unreasonable having regard to the volume or range of information sought”.
26. It is appropriate to note that Coillte did seek from the appellant a refinement of his request, albeit three days before a decision on his request was due to issue, suggesting that it would be in a position to provide him with information relating to a maximum of 14 sites of a possible 73 from which to choose.
27. The AIE officer at Coillte, six days after it was due to issue a response to the appellant’s request, gave him to understand that Coillte did not understand the nature of the information that he was seeking, stating that it would be unable to choose the 14 sites in respect of which it had shown an intent to provide the harvest plans to him.
28. Coillte came to the decision to refuse the request on the basis of what it states to be disproportionate cost and effort on its part that would obstruct and significantly interfere with the normal course of its activities and impose a particularly heavy burden on it. In this regard, it states that it operates under significant commercial pressures and with a relatively small team of staff, without the benefit of public funding.
29. Coillte estimates that it would take a member of staff of its forestry Operational Processes team one hour per harvesting site to collate the requested information for each of the 73 harvesting sites with felling operations in 2021 in counties Cavan and Leitrim, meaning that, cumulatively, it would take more than 70 hours to locate, identify and copy the requested information, equating to almost two weeks of full-time work from a key member of the Operational Processes team, or a week’s work each for two. It states that though there are two areas in the plans that are common to all plans, the majority of the information contained in each plan is unique to the individual forestry site.
30. Further, it asserts that the estimated time it would take to locate, identify and copy the requested information would involve a number of steps including downloading and reviewing approximately 73 individual documents, each approximately 10-12 pages in length, with redactions of personal information and commercially sensitive information. In addition, the staff member assigned to the task would be required to cross check more than one version of a map that accompanies a harvest plan and that issues to contractors, as differences may exist between the several versions, requiring intervention in order to be able to issue a correct version to the requester.
31. Coillte asserts that a harvest plan is generated at a point in time, is issued to a forestry contractor and is subject to updating over time, including the discovery/recording of new features such as windblow or storm damage, changes in site conditions that may impact the operation, or health and safety amendments, some of which may be completed in hard copy form and physically attached to a printed copy of the plan. It states that due to this updating, significant cross-checking is required in order to verify the final version of a harvest plan and that in respect of documents that are not current, they have to be recreated or reconstituted to ensure a final version is provided, in compliance with article 5(1)(c) which requires public authorities to “ensure that environmental information compiled by or for it, is up-to-date, accurate and comparable.”
32. All the above is work, according to Coillte, that would fall to experienced members of the Operational Processes team, namely the two Forestry Works Managers responsible for the geographical area at issue, and is not a mere administrative task that could be delegated to a clerical function outside the team. It is these managers, it claims, who have a familiarity with their own records, where they are stored, whether they are in hard copy or soft copy format and who have a direct knowledge of the individual forestry properties and the associated harvesting operations. Each would have to devote approximately 35 hours, or one full working week, to process the appellant’s request, diverting them away from their key functions, in respect of a large geographical area, comprising production planning, instructing external contractors, management of health and safety, and staff management and environmental monitoring. For these reasons, it asserts that the time required to comply with the request would impose a particularly heavy burden on Coillte and would unreasonably and disproportionately divert it from, and disrupt it in performing, its core functions, including its commercial activities.
33. Further, it asserts that the processing of the applicant’s request would have an adverse effect not only on the Operational Processes team’s ability to complete its work, but would have a further knock-on impact on external contractors.
34. It states that compliance with the request within the timeframe permitted by the AIE Regulations would involve Coillte in disproportionate cost and effort and would obstruct and significantly interfere with the normal course of its activities, imposing a particularly heavy burden on it.
35. It states further that in addition to its statutory remit, it also operates under significant commercial pressures, with a relatively small team of staff and no public funding.
36. In respect of the applicant’s contention that the information requested is of a type that should be actively disseminated by Coillte, as a Harvest Plan containing key information regarding environmental sensitivities and operational controls that is disseminated to a contractor can likewise be disseminated to the public, Coillte maintains that such an argument is wholly erroneous, as the provision of a critical operational document to the party who will be conducting work on foot of the document is not ‘dissemination’ in the generally accepted understanding of the term.
37. It also maintains, contrary to the applicant’s position, that active dissemination of operational information is not possible.
38. Coillte contends that the applicant’s claim that neither personal nor commercially sensitive information needs to be included in harvest plans, obviating the need for redactions, is incorrect. It affirms that there are a number of categories of information which require redacting in some, but not all plans, and that none of these categories is disclosed by it to the Department of Agriculture, Food and the Marine (the Department) or published on that Department’s Forestry Licence Viewer, (an online platform open to the public to view information on forestry licence applications). In support of this claim in respect of commercially sensitive information, it cites article 9(1)(c) of the AIE Regulations, which allows for the non-release of information in cases where its release wold adversely affect commercial or industrial confidentiality where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.
39. Coillte maintains that much of the requested information is already publicly available, on the Forestry Licence Viewer. This is, Coillte points out, a fact acknowledged by the appellant in his submissions to this Office.
40. It is Coillte’s case that it complied with the obligation at article 10(4) of the AIE Regulations to interpret the grounds of refusal on a restrictive basis and that it weighed the public interest served by disclosure against the interests served by refusal of the request, in compliance with article 10(3). It is of the view that the interests served by refusal are also public interests, namely the efficient and effective performance of Coillte and not diverting its staff away from their normal work by the unreasonable burden of full processing the request, occasioning a substantial and unreasonable disruption to that work. It is of the view that the balance of public interests weighs in favour of the disclosure of the requested information.
41. Coillte did engage with the applicant with a view to his refining the request, suggesting the release of a maximum of 14 harvest plans out of a possible 73. The applicant displayed an initial willingness to cooperate in this endeavour but ultimately decided not so to do. Coillte’s internal review decision letter of 23 March 2022 afforded the applicant with a further opportunity to submit a new request, offering him a full list of sites from which to choose harvest plans of a “reasonable number”. However, the applicant lodged an appeal with this Office, six days later.
42. The AIE Directive was adopted to give effect to the first pillar of the Aarhus Convention in order to increase public access to environmental information so that an informed public can participate more effectively in environmental decision-making. It replaced Council Directive 90/313/EEC, the previous AIE Directive.
43. The scheme of the AIE Directive is to provide for a general right of access to environmental information on request (Article 3) with specific, exhaustive exceptions to that general right of access (Article 4). Recital 16 informs the approach that must be taken to the Directive, providing that: “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 in specific and clearly defined cases.”
44. Article 4(1)(b) of the AIE Directive provides that “Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable”. The European Commission’s First Proposal for the AIE Directive envisaged that the exception in Article 4(1)(b) would cover requests “variously described in national legal systems as vexatious or amounting to an abus de droit. Moreover, compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. Authorities should be able to refuse access in such cases in order to ensure their proper functioning.” The Aarhus Convention Compliance Committee (ACCC) has emphasised that “whether or not a request is manifestly unreasonable relates to the nature of the request itself, for example, its volume, vagueness, complexity or repetitive nature, rather than the reason for the request, which is not required to be stated.” (Report adopted on a request for advice by Belarus, ACCC/A/2014/1 , paragraph 28).
45. In respect of a request which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, more than simple volume or complexity is required. Both article 7(2)(b) of the AIE Regulations and Article 3(2)(b) of the AIE Directive specifically envisage that public authorities will deal with voluminous or complex requests, albeit in a longer timeframe. In this respect, I note the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission (Konsumenteninformation), at paragraphs 108-110, and the guidance at page 84 of the Aarhus Guide. I also note the parallel duty in Article 7(1) of the AIE Directive to ensure that public authorities organise environmental information with a view to its active and systematic dissemination to the public. In his Opinion in C-217/97 Commission v Germany at paragraph 30, Advocate General Fennelly stated that this duty indicates that individual requests should, in principle, be on matters of detail. As such, the fact that a request is detailed does not mean that it is necessarily unreasonable.
46. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, one must examine whether responding to the request would involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. In light of the findings of the Court of Justice of the European Union inKonsumenteninformation , at paragraphs 101-115, I consider that the exception in article 9(2)(a) is available only where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request.
47. Where an exception applies, in every particular case a public authority must have regard to the provisions of article 10 of the AIE Regulations.
Does the exception in article 9(2)(a) apply in this case?
48. The appellant’s request is the seeking of a copy of all harvest plans produced by Coillte in relation to felling operations carried out in counties Leitrim and Cavan in 2021.
49. The appellant submits that his request for information is a reasonable request, that it is not manifestly unreasonable and that to refuse the request on this basis is a misapplication of this provision in the Regulations.
50. As outlined by the ACCC above, whether or not a request is manifestly unreasonable must relate to the request itself. Accordingly, in assessing whether the request is manifestly unreasonable, I must examine the nature of the request.
51. In most appeals before my Office I require the public authority to search for and review all environmental information held, and to make this information available to my Office for the purposes of my review. However, where a public authority contends that a request is manifestly unreasonable with regard to volume or range, I must address this ground for refusal as a preliminary matter. It is my view that it would defeat the purpose of article 9(2)(a) to require a public authority to process an unreasonable volume or range of information for the purpose of providing it to my Office. However, in this case, my investigator requested and obtained from Coillte two typical examples of harvest plans for the purpose of review to determine the type of information that might have to be redacted from them and to ascertain the scope of work required to identify, locate and compile the information the harvest plans contain. From a review of the plans, the investigator has been able to confirm that these sample harvest plans contain information that could be considered to be of a personal or commercially sensitive nature. Coillte, in correspondence with this Office, has indicated that not all plans will contain such information.
52. I consider that it is not necessary or appropriate for me to make a final decision as to whether any other exemptions under the AIE Regulations apply to the information sought. I accept that Coillte are of the view that if it was required to process this request, it would seek to redact information from some of the harvest plans under articles 8(a)(i) and 9(1)(c) of the AIE Regulations. I will determine whether this is an appropriate application of these exemptions when that comes before me in an appeal. It is not necessary for me to determine this issue in order to come to a decision as to whether this request is manifestly unreasonable.
53. Coillte submits that it would take each of the two Forestry Works Managers responsible for the geographical area at issue, and who have a familiarity with their own records, approximately 35 hours, or one full working week, to process the appellant’s request, diverting them away from key functions. It is these managers, according to Coillte, who have a direct knowledge of the individual forestry properties and the associated harvesting operations. For these reasons, it asserts that the time required to comply with the request would impose a particularly heavy burden on Coillte, would unreasonably and disproportionately divert it from, and disrupt it in performing, its core functions and would have a knock-on impact on external contractors. Coillte makes the point that the responsibilities of the two managers in question extend into more than the two counties the subject of the request.
54. Coillte submits that the time it would take to locate, identify and copy the requested information would involve a number of steps including the downloading and reviewing of approximately 73 individual documents, comprising 10-12 pages each, requiring in some cases, redactions of personal information and commercially sensitive information. It states that two areas in the plans are common to all plans, but that the majority of the information contained in each plan is unique to the individual forestry site. In addition, there is a requirement to cross check maps that initially accompany a harvest plan against those that are issued to contractors, as differences may occur over time between the various versions, requiring intervention, to ensure that correct versions issue to the requester.
55. Coillte asserts that a harvest plan is subject to updating over time, including the discovery/recording of new features relating to a harvest site, some of which may be completed in hard copy form and physically attached to a printed copy of the plan. It states that this updating leads to significant cross-checking in order to verify the accuracy of the final version of a harvest plan. Moreover, it says that where documents are not current, namely those relating to sites that have ceased operations, as may be the case in some of the harvest plans the subject plan of this appeal, they have to be recreated or reconstituted to ensure a final version is provided, in compliance with article 5(1)(c) which requires public authorities to “ensure that environmental information compiled by or for it, is up-to-date, accurate and comparable.”
56. In explanations to this Office, Coillte has indicated that harvest plans (or activity packs as they are also known) are very dynamic documents that are subject to change over time. While some are continuously being amended, others may be subject to no changes. Changes may have occurred on site or new conditions may have been attached to a site’s operations. All operational staff are required to record these changes and conditions. Accordingly, harvest plans are being amended on an ongoing basis. Coillte also points out that Information in a harvest plan at one point in time may have become defunct at a later date, particularly as it may be months from the inception of a harvest plan until operations on a site commence and eventually conclude. Therefore, information that may have been valid at one point in a harvest plan’s lifetime may become invalid as time goes on. Prior to issuing a plan to a requester under the AIE regime, Coillte says that it undertakes a verifying procedure to ensure that incorrect or defunct information no longer appears in a plan and to preclude the appearance of contradictions. This procedure is denominated by Coillte as reconstituting or recreating a harvest plan to ensure that only valid, non-defunct information issues to a requester. It is the factually incorrect, defunct information, as well as, in appropriate cases, the redaction of personal and commercially sensitive information, that is the subject of review and editing of plans by Coillte prior to issue and which contributes to the time required to respond to a request.
57. In all the circumstances, having regard to the nature of the request, the period of time to which it relates, the resources and the work required to attend to the request, particularly the requirement that senior managers devote a not inconsequential number of hours to this work, and the work of external contractors that would be negatively impacted by the diversion of Coillte personnel to respond to the request, I accept these submissions. I am satisfied that the information requested, pertaining as it does to harvest plans for two counties for a whole year, is both voluminous and wide-ranging.
58. I accept Coillte’s time estimates as reasonable. I have taken into account the fact that Coillte accepts as reasonable, from the perspective of the AIE Regulations, the appellant’s submissions to Coillte of smaller AIE requests for copies of harvest plans for one county and for one month. I accept that Coillte staff are already working under resource pressures in order to carry out Coillte’s other core functions. In that context, I consider that the amount of time that it would take Coillte staff to respond to the request is significant, relative to the size of the personnel responsible for the geographical area in question, namely two forestry works managers, who are given assistance by two ‘operational supports’. In my view, the fact that such work would need to be carried out primarily by senior officers of Coillte would result in significant interference with the normal course of Coillte’s activities and would impact negatively on the work of external contractors.
59. The exception in article 9(2)(a) is not intended to endorse any failure by public authorities to comply with their duties of dissemination of environmental information under article 5 of the AIE Regulations and Article 7 of the AIE Directive. Accordingly, it is relevant to consider whether the information requested is the kind of environmental information that one would expect to be organised by the public authority in a manner that enables its easy dissemination, as maintained by the appellant. The request in this case seeks all harvest plans for two counties for a one-year period, namely 2021. Coillte maintains that in the case of current or ‘point in time’ copies of harvest plans, it is considerably more straightforward to the relevant team to provide the requested information. As noted above, harvest plans which are no longer current must be recreated to ensure that the version released is a final version, compliant with article 5(1)(c) of the AIE Regulations, namely, “up-to-date, accurate and comparable.” This recreating or reconstituting of non-current plans leads me to conclude that these records are not capable of easy dissemination; instead the information is located in several electronic and hard copy locations requiring a compilation process that can currently only be performed by the aforementioned forestry works managers. In my view, this information does not lend itself to easy dissemination and it contrasts with, say, information that is of a type that is easily accessible, thus facilitating its easy dissemination.
60. I have had particular regard in this case to the volume and the range of information sought, the nature of the information requested, the task that must reasonably be undertaken to identify it, and the impact of dealing with the request on Coillte’s other functions. I am mindful that the exception in 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. I note in this regard the appellant’s assertion that for a refusal under 9(2)(a) to be justified, it must be manifestly unreasonable, not just voluminous. On the facts of this appeal, I find that the threshold under article 9(2)(a) has been met and that the request is manifestly unreasonable.
61. I emphasise that my conclusion in this case should not be taken to mean that public authorities may rely on the exception in article 9(2)(a) in respect of every request for voluminous or wide-ranging information. Each request to a public authority must be considered on its own particular facts. Public authorities have obligations under the AIE Directive and Regulations and must put in place adequate resources to comply with those obligations.
62. In response to Coillte’s assertion that much of the information sought by the appellant is already publicly available and that active dissemination of operational information is not possible, I must point out that the appellant had the right to request the information sought, regardless of what other information might already be publicly available or be disseminated by Coillte to comply with its statutory obligations.
Does the public interest in refusal outweigh the public interest in disclosure?
63. Although I consider that the exception in article 9(2)(a) applies, a further step I have to consider is whether Coillte has appropriately taken into account the provisions of article 10 of the AIE Regulations, particularly article 10(3), which requires that the public interest served by disclosure be weighed against the public interest served by refusal in each particular case. As I have set out above, I agree that article 9(2)(a) of the AIE Regulations applies to the appellant’s request for all harvest plans for counties Cavan and Leitrim for 2021. In favour of release, I have considered the general public interest in the release of environmental information and in the release of this information in particular. I have considered the submissions of the appellant that members of the public should be able to see what plans are in place to ensure that Coillte adhere to terms and conditions attached to felling licenses. In favour of refusal, I have considered the disruption that the processing of this request would place upon Coillte. I consider that the public interest served by disclosure does not outweigh the interest served by release in this appeal.
64. I did consider whether it would be appropriate to require Coillte to make available to the appellant the 14 harvest plans that it was suggested could be released to the appellant prior to the making of the internal review decision. However, I consider that given the time that has passed since the making of this request, and also given the time that has passed since this appeal was brought to my Office, I would have to seek further submissions from the parties before making that decision which would cause further delay. I consider that in the circumstances, the most appropriate decision is for me to affirm the decision of Coillte. I will note that where a public authority seeks to engage with a requestor to ask him to consider refining a request, this engagement should be meaningful. I do not consider that it was unreasonable of the appellant to ask for a list of relevant sites from which he could consider refining his request, and it is unfortunate that Coillte did not notify him that it required further time in order to furnish him with this list. Nonetheless, I do not consider it appropriate for me to annul the decision of Coillte or direct release of information on that basis alone. It is open to the appellant to make a new request for a reduced number of harvest plans, taking into account the outcome of this appeal. Given that Coillte had suggested that a request for up to 14 harvest plans would be reasonable, any decision to the contrary for a request of that level should be carefully justified.
65. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the decision of Coillte.
66. 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