Decision
Mr. F and Coillte
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-137824-M9H4X5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-137824-M9H4X5
Published on
Whether the request has been dealt with in accordance with Article 5(2) of the AIE Directive (implemented by article 15(1) of the AIE Regulations)
17 July 2024
1. On 1 February 2023, the appellant requested the following information from Coillte:
“A copy of all Harvest Plan Records produced post licence issued by Coillte in relation to felling operations in Coillte forests with the prefix LM during the month of January 2023. Please include details of the relevant licences.
Please note that this request is for versions of Harvest Plans that do not appear on the FLV (Forestry Licence Viewer) .
For clarity, this request applies to versions of Harvest Plans which have been submitted to contractors. Any version provided to an external party must be considered to be complete.
For further clarity, Harvest Plans relating to active harvesting sites are not covered by Article 9 (1) (a). Coillte is required by law to erect a public notice indicating that licenced works are being undertaken on the site so no adverse effect could be proven to result from disclosure of the requested records as the fact that the site is an active operational site must already be in the public domain.
In any case, site security is matter for Coillte to deal with under the relevant Health & Safety legislation and regulation.
I am not seeking any information within a Harvest plan that will adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest, and any such information contained in records can be redacted. Therefore my request cannot be refused on the basis of Article 9 (1) (c) as this information is not covered by my request.
I wish to receive the information in electronic format”
2. Coillte issued its original decision on 28 February 2023. It said it identified three records (harvest unit LM06-H0098 Activity Pack, harvest unit LM07-H0027 Activity Pack and harvest unit LM06-H0108 Activity Pack) which are relevant to the appellant’s request. Coillte said it was granting access to two of these records and attached a Schedule of Records. Coillte said it was refusing access to the third record (for harvest Unit LM06-H0108) on the basis that articles 9(1)(a), 9(1)(c) and 9(2)(c) of the AIE Regulations applied.
3. The original decision also set out Coillte’s decision to charge the appellant a fee of 40EUR for the records. It said the charge is based on a rate of 20EUR per hour for search, retrieval, compilation and copying:
“We have completed our review of your AIE request and have compiled the information that we hold related to your request. We have calculated that completing your AIE request took one hour and therefore a charge of will be applied to your AIE request. This assessment can be broken down as follows:
- Search and retrieval time – 1.5 hours @ €20ph (time spent locating relevant files/data sources and collating relevant documents contained on those files/data sources) €30
- Compilation time –0 .5 hours @ €20ph (time spent examining the documents, considering exemptions, completing redactions if required, and scheduling the records) €10
- Total €40”
4. The original decision also stated“if you are concerned about the charge sought, assistance can be provided by the AIE Team to give you the option of refining your request, with a consequent reduction in the charge payable. If you are the holder of a current medical card or are in receipt of social welfare benefit, Coillte may reduce the charge on production of evidence by you, e.g., if you forward a copy of your medical card.”
5. The appellant requested an internal review of the original decision on 1 March 2023. He asserted that the fee sought is unreasonable and the grounds for refusal for record 3 (harvest Unit LM06-H0108) were not justified.
6. Coillte issued its internal review on 29 March 2023 where it affirmed its original decision. In its internal review it continued to rely on Article 9(1)(a), Articles 9(1)(c) and 9(2)(c) to withhold record 3. Regarding the fee, Coillte stated that Article 15(1)(a) of the AIE Regulations allows a public authority to charge a reasonable fee for the provision of environmental information. It said that any amount that is reasonable will not have a deterrent effect and the AIE Directive acknowledges that the charging of a fee is not tantamount to public deterrence. It added:
“I am satisfied that the time spent on the Request as set out in the Decision has been accurately recorded, the work involved clearly set out, the fees calculated in a transparent manner and the subsequent charge correctly applied. In being strictly limited to reimbursement for man-hours spent on the request, those man hours being reasonably necessary in navigating a system designed around the public interest, I am satisfied that the charge is reasonable. In that regard, the amount of the charge is herein affirmed.”
7. Coillte also reiterated in its internal review that a reduction of the fee may be made upon production of a medical card or similar.
8. The appellant appealed to this Office on 27 April 2023.
9. I am directed by the Commissioner for Environmental Information 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 to Coillte. I have also examined the contents of the records at issue. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
• The decisions of the Courts of Justice of the European Union inC-71/14 East Sussex County Council v Information Commissioner, and C-217/97 Commission v Germany
10. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
11. Coillte, in its original decision, affirmed by its internal review, made the decision to release records 1 and 2 (related to harvest unit LM06-H0098 and harvest unit LM07-H0027) and withhold record 3 (related to harvest unit LM06-H0108) on the basis of the exemptions provided for in articles 9(1)(a), 9(2)(a) and 9(2)(c) of the AIE Regulations. In its submission to this Office on 2 November 2023 Coillte amended its position and is now granting release of record 3 – it no longer seeks to rely on the aforementioned exemptions within the AIE Regulations as a basis to withhold this record.
12. Having examined the 3 records at issue, I can see Coillte has redacted the names and contact numbers of various personnel under the heading“contacts and emergency information.” The redacted information includes the names and contact numbers of the following: site safety coordinator, chainsaw operator, harvester operator, forwarder operator. My investigator wrote to the appellant regarding this and the appellant confirmed this is not information he is seeking in this instance. Therefore, my review will not consider whether Coillte is justified in withholding this information under the AIE Regulations.
13. However, it should be noted that Coillte has not explained what exemption within the AIE Regulations it intended to rely on to withhold this information. As this Office has now confirmed with the appellant that he is not seeking this information, it falls outside the scope of the review, and I will not consider the appropriateness of the redactions in this recommendation. However, Coillte should be aware that when it is withholding information, it is obliged to state on which exemption it is relying on, or at the very least clarify with the appellant if this is information he is seeking in order to refine the scope of the request. Coillte should bear this in mind when dealing with future requests.
14. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example,Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90 ). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed, whether at internal review stage or through an appeal to this Office.
15. The judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 371 notes that“the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal.”
16. This view aligns with the decision of the Court of Justice of the EU inC-619/19 Land Baden Württemberg v DR . This decision contains some useful guidance in relation to the application of exceptions generally. The CJEU noted in particular, at paragraph 69 of its judgment:“As the Advocate General has observed in point 34 of his Opinion, [the] obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.”
17. The appellant would like the Commissioner to make a determination on whether Coillte acted correctly by applying article 9(1)(a), 9(2)(a) and 9(2)(c) of the AIE Regulations and withholding record 3 in the first instance. As Coillte has amended its position and is now releasing record 3 (subject to a fee), I do not consider it necessary or a good use of this Office’s resources to examine whether the exemptions were applied correctly by Coillte in the first instance.
18. Coillte confirmed in this submission that it still intends to charge the appellant for the release of the relevant records. Coillte, in its internal review and submissions to this Office, said it proposed to charge the appellant in this appeal 40EUR, based on 20EUR/hour for 2 hours of work to process the request. It said that upon production of evidence from the appellant it may reduce this to 6EUR/hour. As the appellant is a medical card holder, my investigator wrote to Coillte to ask it to confirm that it would calculate the fee at 6EUR/hour as suggested. Coillte confirmed that upon production of a valid medical card it would calculate the fee at 6EUR/hour. The investigator communicated this to the appellant on 1 July 2024. As such for the purposes of this appeal I will consider the charge of 6EUR/hour (meaning a total of 12EUR) is the fee that Coillte intend to charge the appellant for the information sought.
19. 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. Article 11(5) of the regulations sets out that a reference to a request being refused, in whole or in part information includes a request that has not been dealt with in accordance with articles 3, 4 or 5 of the AIE Directive, including the ground that the amount of the fee charged under article 15(1) is excessive.
20. Coillte’s position is that it is releasing all 3 records to the appellant (subject to a fee). The names and contact numbers of personnel listed under“contacts and emergency information” has been withheld in each of the records. The appellant is not seeking this information therefore it falls outside the scope of this review.
21. The appellant submits that the fee of proposed by Coillte in this case is not reasonable. As such, the scope of my review in each case is confined to whether or not the request has been dealt with in accordance with Article 5(2) of the AIE Directive (implemented by article 15(1) of the AIE Regulations) – whether the fee proposed by Coillte is reasonable in this instance.
Submissions
22. On 27 April 2023 the appellant made the following submission to this Office:
“I am not satisfied that it should take 1.5 hours for a competent member of staff to identify two records and then take a further 0.5 hours “examining the documents, considering exemptions, completing redactions if required, and scheduling the records”
The use of the expression “if required” would suggest to me that this is not a bespoke exercise because, if it was, the decision maker would be aware if redaction was necessary or not.
Can the Commissioner clarify whether a public authority is permitted to charge for the time taken to schedule the records?
I am of the view that Coillte is seeking to apply charges in order to deter requests for environmental information.
I contend that Harvest Plans should be actively disseminated by Coillte and that fees should not apply. I would argue that they fall within the scope of Article 7 (2) (g) of the AIE Directive;
(g) environmental impact studies and risk assessments concerning the environmental elements referred to in Article 2(1)(a) or a reference to the place where the information can be requested or found in the framework of Article 3.
A Harvest Plan, in effect, includes site specific environmental impact information and risk avoidance information.”
23. Coillte made a submission to this Office on 2 November 2023. It amended its position and confirmed it was releasing in full the three relevant records identified, subject to a fee.
24. Coillte, in its submission, also made the following points with regards the reasonableness of the charge:
“The Charge was calculated based on 2 hours’ of work. Our in-house team dedicated to AIE requests performed the following tasks in identifying the Information:
a. Engagement with a senior member of Coillte staff, who is a subject matter expert, for instruction;
b. Retrieval of the information likely falling within the Request from Coillte’s database;
c. Review of the resulting information to ensure that no information appeared to be missing.
d. Consideration of any exemptions pursuant to the AIE Regulations, which would not permit Coillte to disclose the underlying information; and
e. Review of the Information and compilation of a schedule to provide to the Appellant.
4.3 Having spoken with the initial decision-maker and the AIE team, I am satisfied that this work was completed at all stages at the appropriate level of expertise.
4.4 In his appeal letter to your Office, the Appellant states as follows:- “I am not satisfied that it should take 1.5 hours for a competent member of staff to identify two records and then take a further 0.5 hours “examining the documents, considering exemptions, completing redactions if required, and scheduling the records” It is our position that there is no correlation between the number of records identified and the amount of time required to complete searches to the extent required by the AIE Regulations. The steps involved in making a record available are as follows;
4.5 I am satisfied that Coillte worked as efficiently as possible to respond to the Request and provided the Appellant with a detailed schedule of the time involved. I am further satisfied that the time spent on the Request, as set out in the Initial Decision has been accurately recorded, the work involved clearly set out, the Charge calculated in a transparent manner and the subsequent reduced Charge correctly applied.
25. My investigator wrote to Coillte asking for more detail on the search and retrieval process set out by Coillte for this request. Coillte responded on 10 July 2024 with the following:
“You have requested further information to justify the search and retrieval time calculated of 1.5 hours. I have consulted further with the Harvesting Manager BAU3 to address your query. The records in this case, the Harvest plans, do not exist in one folder within a database. They are stored in folders within that database under their respective forests and require searching at forest level to locate the correct file. Also, it is necessary to cross check that the harvest plan stored in each forest folder within the database is the most up to date version and truly reflects the situation post operations to ensure that the records located are the most up to date and accurate version of same in accordance with Coillte’s obligations under Article 5(1)(c) of the AIE Regulations. The Harvesting Manager has described the steps which he must take in search and retrieval when dealing with a request of this nature and which he carried out in dealing with this request. The request was framed with reference to “felling operations in Coillte forests with the prefix LM during the month of January 2023”.
The Harvesting Manager first had to identify which Harvest Units (HUs) were relevant to the request.
With the HUs identified he then accessed the relevant database and within the database accessed the Activity Pack Portal.
Within that portal he accessed the correct forest folder and then the contractor folder.
Once he located the harvest plan record, he contacted the relevant Harvesting Forester to check if any operational changes should be noted that he may not be aware of before downloading the record for referral back to the AIE team.
These actions were necessary for 3 HUs, LM06-H0098, LM07-H0027, and LM06-H0108. The time allocated to search and retrieval is not, considering the work required, disproportionate or excessive. Coillte therefore submits that the charge applied is reasonable. Coillte further submits that Harvest Plan records of this nature do not comprise environmental information which could reasonably be expected to be actively disseminated by way of publication. Furthermore, there is no means whereby the Harvest Plan records could be stored in an up-to-date state in anticipation of an AIE Request at any stage of operations so as to remove the necessity for Coillte staff to cross check that the records are the most up to date versions and that a record properly reflects the post operational status of a forest site. It could be that an AIE Request is received for Harvest Plan records before the final status has been updated. In order to comply with our obligations under Article 5(1)(c) this cross check is a vital component of the search and retrieval process. The necessity to do this does not compensate for any shortcoming on Coillte’s part in its obligations under the AIE Directive and the AIE Regulations. Taking account of the nature of the forestry operations concerned there are many times throughout the course of operations when a harvest plan record gets updated. The Commissioner has previously affirmed charges applied by Coillte where searches may have been across multiple databases/platforms, as you have adverted to in your email, however the fact that searches here were not across multiple databases does not equate to less time spent carrying out the work of search and retrieval to the extent that is required under the AIE Regulations.”
26. My investigator put Coillte’s points regarding the time spent on search and retrieval to the appellant who responded on 11 July 2024 with the following comments:
“Why is the start point checking the database under the respective forest when it appears that a later iteration of the Harvest Plan (the one requested) may be held elsewhere?
Where, precisely, is the potentially later (most up-to-date) information held?
Coillte has not explained where the later iteration of any Harvest Plan may be held and why that location is not the location searched in the first instance. Even if the Plan in this other location has not been modified it is still the information that I am seeking.
It appears to me that Coillte is applying an unnecessary step in this process by not going directly to the (unidentified) source of the requested information.
This involves an unnecessary expenditure of time which is being charged to me. I consider that to be unreasonable.
…It would appear from this explanation that the information requested is not definitively held in the relevant database. The definitive information is held by the Harvesting Forester.
Can Coillte clarify how many Harvesting Foresters operate in Coillte forests with the prefix LM?
A simpler approach to addressing this request would have been for the AIE team to contact all Harvesting Foresters in the LM area to request copies of the latest iteration of any Harvest Plan for works undertaken during the relevant period. There would just be one search for the information instead of a search by the Harvesting Manager and a subsequent search by the Harvesting Forester.
Coillte further submits that Harvest Plan records of this nature do not comprise environmental information which could reasonably be expected to be actively disseminated by way of publication.
This claim is strongly disputed. Harvest Plans form part of a licence application and the original version of a Harvest Plan for a particular licence application is actually published on DAFM’s FLV as part of the licencing process which is subject to public consultation. The assessment of the application is, in part, based on information contained within the Harvest Plan. It is therefore more than reasonable to expect that any changes to this Plan (post licence issue) are disseminated by publication – either directly by Coillte or more appropriately indirectly, by DAFM, through the Forest Licence Viewer. Coillte should be submitting any changes to a Harvest Plan to DAFM so that the public record of the licence can be maintained up-to-date. There are cases where DAFM issues a Further Information Request for an amended Harvest Plan to Coillte (e.g. CK06-FL0216) before the licence is issued. This demonstrates the need for this information to readily accessible for dissemination.
I contend that there is an imperative reason that this information needs to easily accessible by the public. A licence is awarded on the basis of a submitted Harvest Plan. The three licences concerned are likely to have undergone an Appropriate Assessment under the Habitats Directive. Any modification to a Harvest Plan could (and may very well likely) involve a material change to the implementation of the project. Any changes made post licence should be subject to public scrutiny as they may involve a breach of mitigation applied under AA.
Why should a Plan need to be modified after a licence has been awarded based on the information contained in that Plan?
If a Harvest Plan has been modified then the project has potentially been modified. The Plan for a licenced project cannot just be altered at random without due consideration of the changes being applied by the licensing authority. This has the potential to be in violation of the law. Coillte must be in a position to easily identify and demonstrate that any post-licence amendments to project documentation and plans do not involve material changes. It should not take half an hour to be able to identify this information for a particular individual licence.
….
This comment, of itself, justifies the necessity for information to be held in an easily accessible manner. Coillte should be in a position to very quickly and easily identify the latest iteration of a Harvest Plan as any change from the original has the potential for impact on the environment. Material changes would nullify any AA that has been conducted and require a re-assessment of the project. Coillte should be submitting updated Harvest Plans, where there have been material changes, to DAFM as a matter of course as there are implications for compliance with European Law.
By material changes I mean, in particular, anything that could impact on the mitigation applied under an AA carried out under the Habitats Directive. For example the relocation of a stacking area in proximity to a watercourse; the introduction of additional mitigation not previously specified, etc.
I dispute Coillte’s schedule of charges which is not consistent with the findings of the ACCC in ACC/C/2017/147 paragraph 89.
I consider the judgement in the East Sussex case (C-71-/14) to be unsound and will look to challenge it through the Courts when the right opportunity comes along)”
27. Article 5 of the AIE Directive provides:
“1. Access to any public registers or lists established and maintained as mentioned in Article 3(5) and examination in situ of the information requested shall be free of charge.
2. Public authorities may make a charge for supplying any environmental information but such charge shall not exceed a reasonable amount.
3. Where charges are made, public authorities shall publish and make available to applicants a schedule of such charges as well as information on the circumstances in which a charge may be levied or waived.”
28. Article 15(1) of the AIE Regulations broadly transposes article 5 of the AIE Directive and provides as follows:
“15 (1) (a) A public authority may charge a fee when it makes available environmental information in accordance with these Regulations (including when it makes such information available following an appeal to the Commissioner under article 12), provided that such fee shall be reasonable having regard to the Directive.
(b) Notwithstanding sub-article (a), a public authority shall not charge a fee for access to any public registers or lists of environmental information pursuant to article 5(1)(d).
(c) Notwithstanding sub-article (a), a public authority shall not charge a fee for the examination in situ of information requested.
(d) Where an applicant examines information in situ and wishes to obtain copies of that information, a public authority may charge a fee, consistent with the list of fees specified under article 15(2) for the provision of such copies.”
29. The AIE Directive makes it clear that public authorities are entitled to charge a fee for the supply of environmental information provided the fee does not exceed a reasonable amount. Article 5(2) is transposed into national law by article 15(1)(a) of the Regulations which provides that public authorities are entitled to charge a fee so long as the fee is reasonable. The question to be addressed in this appeal is whether the fee of 12EUR (consisting of 2 hours at a rate of 6EUR/hour), imposed by Coillte in this case for the supply of information, is reasonable as per the requirements of article 5(2) of the Directive transposed by article 15(1) of the AIE Regulations.
30. Neither the Directive nor the Regulations define what is“reasonable” in this context, therefore to determine what is meant by“reasonable” I have had regard to the relevant case law. The question of what is reasonable in this context will also encompass the question of what a public authority is and is not permitted to charge for when supplying information.
31. In C-71/14East Sussex County Council v Information Commissioner , the Court of Justice found that all of the factors on the basis of which the amount of the charge is calculated must relate to the actual costs of supplying the requested information. The Court found that this may include the costs attributable to the time spent by the staff of the public authority concerned on answering an individual request for information, including the time spent on searching for the information and putting it in the form required. Paragraph 39 states“The costs of ‘supplying’ environmental information which may be charged under Article 5(2) of Directive 2003/4 encompass not only postal and photocopying costs but also the costs attributable to the time spent by the staff of the public authority concerned on answering an individual request for information, which includes the time spent on searching for the information and putting it in the form required.”
32. Therefore, based on East Sussex, it is clear that Coillte is permitted to take into account the time spent on the search and retrieval of the information when calculating its charge. I need to be persuaded by the explanation given by Coillte on how it arrived at a total of 2 hours to carry out the search, retrieval and complication of the records involved. In its original decision and internal review, Coillte set out the basis on which it calculated the fee of 40EUR (later confirmed as reduced to 12EUR on production of a valid medical card, which the appellant has). _“This calculation was made up of “search and retrieval time – 1.5 hours @ €20ph (time spent locating relevant files/data sources and collating relevant documents contained on those files/data sources), and compilation time –0 .5 hours @ €20ph (time spent examining the documents, considering exemptions, completing redactions if required, and scheduling the records)”. _With regards the time it spent on search and retrieval of the relevant records, Coillte said:
“The steps involved in making a record available are as follows;
• Search of a database for records relevant to the timeframe specified by the applicant;
• Cross-checking another part of the database to clarify the status of the harvest unit i.e. active or marked complete;
• Identify record, then redact personal information before release.”
33. The appellant stated he was“not satisfied that it should take 1.5 hours for a competent member of staff to identify two records and then take a further 0.5 hours “examining the documents, considering exemptions, completing redactions if required, and scheduling the records”.
34. My investigator asked Coillte to provide more details with regards the search and retrieval of the requested information. Coillte said the harvest plan records are stored within the database under their respective forests, so must be searched at forest level to locate the correct file. It also said that it is necessary to cross check that the harvest plan record is the most up to date version and“truly reflects the situation post operations”. It laid out the following steps that the Harvesting Manager took in the search and retrieval of the records:
1. The Harvesting Manager first had to identify which Harvest Units (HUs) were relevant to the request.
2. With the HUs (Harvesting Units) identified he then accessed the relevant database and within the database accessed the Activity Pack Portal.
3. Within that portal he accessed the correct forest folder and then the contractor folder. Once he located the harvest plan record, he contacted the relevant Harvesting Forester to check if any operational changes should be noted that he may not be aware of before downloading the record for referral back to the AIE team.
35. Coillte confirmed these steps were necessary for each of the records identified(LM06-H0098, LM07-H0027, and LM06-H0108) , and that the time allocated to search and retrieval is not, considering the work required, disproportionate or excessive.
36. Coillte further submits that“Harvest Plan records of this nature do not comprise environmental information which could reasonably be expected to be actively disseminated by way of publication. Furthermore, there is no means whereby the Harvest Plan records could be stored in an up-to-date state in anticipation of an AIE Request at any stage of operations so as to remove the necessity for Coillte staff to cross check that the records are the most up to date versions and that a record properly reflects the post operational status of a forest site. It could be that an AIE Request is received for Harvest Plan records before the final status has been updated. In order to comply with our obligations under Article 5(1)(c) this cross check is a vital component of the search and retrieval process. The necessity to do this does not compensate for any shortcoming on Coillte’s part in its obligations under the AIE Directive and the AIE Regulations. Taking account of the nature of the forestry operations concerned there are many times throughout the course of operations when a harvest plan record gets updated.”
37. The appellant in his submission of 11 July 2024 questioned a number of the points made by Coillte including, why the start point is checking the database under the respective forest when it appears that a later iteration of the Harvest Plan (the one requested) may be held elsewhere. He said“Where, precisely, is the potentially later (most up-to-date) information held? Coillte has not explained where the later iteration of any Harvest Plan may be held and why that location is not the location searched in the first instance. Even if the Plan in this other location has not been modified it is still the information that I am seeking. It appears to me that Coillte is applying an unnecessary step in this process by not going directly to the (unidentified) source of the requested information. This involves an unnecessary expenditure of time which is being charged to me. I consider that to be unreasonable.”
38. I have carefully considered the points raised by the appellant regarding the time taken by Coillte to complete the search and retrieval of this information. On balance I am persuaded by Coillte’s explanation of the steps involved to identify and retrieve the 3 records at issue, and why it took 1.5 hours to do so.
39. I note the appellant has questioned whether the public authority is entitled to charge for the time taken to schedule the records. The Commissioner has on many occasions commented in decisions that it is best practise for a public authority to provide a schedule of records when providing access to information. I therefore consider that it is reasonable that this time be factored in when calculating the“costs attributable to the time spent by the staff of the public authority concerned on answering an individual request for information.” I consider that in this case, Coillte has not spent an excessive or inappropriate amount of time creating a schedule of records. Should the appellant not wish to receive a schedule in relation to future requests, it is open to him to specify this in his request.
40. The appellant asserts that Coillte’s failure to organise its information efficiently has resulted in an excessive amount of time to process his request. He also says that the information he has requested should be being actively disseminated by Coillte in any event. Article 15(1) makes it clear that the question of what is a reasonable fee must be approached having regard to the requirements of the AIE Directive. Article 3(5) of the Directive requires Member States to ensure that“officials are required to support the public in seeking access to information” and that“the practical arrangements are defined for ensuring that the right of access to environmental information can be effectively exercised” . Article 7(1) seeks to ensure that public authorities are required“to organise the environmental information which is relevant to their functions and which is held by or for them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology, where available” .
41. With articles 7(1) and 3(5) of the Directive in mind, it is clear that AIE requests of a general nature often are of a kind that one would expect to either be proactively published by the public authority or organised and maintained by the public authority in a manner that enables its easy dissemination on request. In such circumstances I do not think it would be reasonable to allow a public authority to rely on its own failure to adequately organise its information to justify the imposition of a charge on the appellant in respect of work which arguably would not have been required had proper document management arrangements been in place.
42. The Advocate General in East Sussex clarified that when calculating a fee for the supply of information, a public authority cannot pass on the costs of a failure to comply with other parts of the Directive to requestor:“Moreover, an authority may not rely on its failure to comply with its obligations under, for example, Articles 3 and 7 of Directive 2003/4 in order to justify charging an applicant under Article 5(2) because, for example, it is holding information as raw data and has not yet organised that information (as required) in a manner that renders access possible.”
43. The appellant asserts that the information he has requested should be actively disseminated. He notes that Harvest Plans form part of a licence application and the original version of a Harvest Plan for a particular licence application is published on the Department of Agriculture and the Marine’s (DAFM) FLV (Forestry Licence Viewer) as part of the licencing process which is subject to public consultation.
44. He says any changes to this Plan (post licence issue) should be disseminated by publication –“either directly by Coillte or more appropriately indirectly, by DAFM, through the Forest Licence Viewer.” I have thought carefully about all the point made by the appellant in this regard, and am not persuaded that the changes involved in the Harvest Plan records at issue“involve a material change to the implementation of the project that should be subject to public scrutiny as they may involve a breach of mitigation applied under AA” – as is maintained by the appellant. He says that“Any changes made post licence should be subject to public scrutiny as they may involve a breach of mitigation applied under AA…. Coillte should be submitting updated Harvest Plans, where there have been material changes, to DAFM as a matter of course as there are implications for compliance with European Law” – I would suggest the implications for compliance with EU Law resulting from any modification of a Harvest Plan is a matter for DAFM to deal with as it sees appropriate and is outside the remit of this Office. This is in contrast to the publication of harvest plans on the FLV in the context of license applications, where the public have the ability to participate in the licensing process. In this instance Coillte has said it is willing to release the requested information to the appellant, and therefore the public at large, and I do not consider the fee it has proposed is being used to mitigate against a failure to comply with any of its obligations under the AIE Directive.
45. While I am not persuaded that Coillte, when calculating its charge in this case, was trying to justify any failure to comply with its obligations under the AIE Directive, there is nothing to stop it from publishing such information regularly, thereby avoiding the need to process AIE Requests seeking such information. Indeed, greater proactive publication of environmental information is a significant tool in managing the number of AIE requests made on such matters, and ultimately would reduce the number of appeals to this Office. I am mindful that the role of this Office under article 12(5), is to review the internal review of the public authority with a view to affirming, varying or annulling the decision. It is not the Commissioner’s role to direct public authorities to organise their files in a way which facilitates active dissemination – rather this obligation falls under the general duties of a public authority (article 5 of the AIE Regulations).
46. The next step is to determine whether the charge amount itself set by Coillte exceeds a reasonable amount.East Sussex found that the expression“reasonable amount” in the AIE Directive does not include any amount that may have a deterrent effect on persons wishing to obtain information or that may restrict their right of access to information. The Court found that“in order to assess whether a charge…has a deterrent effect, account must be taken both of the economic situation of the person requesting the information and of the public interest in the protection of the environment. That assessment cannot therefore relate solely to the person’s economic situation but must also be based on an objective analysis of the amount of the charge. To that extent, the charge must not exceed the financial capacity of the person concerned, nor in any event appear objectively unreasonable” (paragraph 43). The appellant asserts have Coillte’s imposition of a fee in this case is an attempt to deter requests for environmental information.
47. To determine whether the charge imposed by Coillte in this case has a deterrent effect on the appellant or restricts his right of access to information, account must be taken of his economic situation. Coillte, in both its original decision and internal review, stated that it may reduce the charge if the appellant produces evidence that he is a medical card holder or in receipt of social welfare benefit. It is unclear why Coillte has used the word “may” and I agree wording such as that on the OCEI website might be more appropriate:“….If you have a medical card - or you are the dependent of someone who holds a medical card - the cost is €15.”
48. As mentioned in the“preliminary issues” paragraph above, the investigator dealing with this appeal confirmed with Coillte that the chargewould be 6EUR/hour upon production of a valid medical card (which the appellant has). Based on the information Coillte has provided regarding the length of time it took to process this request (2 hours), this would amount to a charge of 12EUR for the information requested by the appellant. I consider that in providing for such a reduced rate, Coillte have endeavoured to take into account the economic situation of the requestor.
49. For the second limb of the test to determine whether the charge in this case has a deterrent effect, I need to consider whether the amount charged is objectively reasonable. Coillte has set out the basis on which the charge was calculated – the appellant is charged a fee of 6EUR per hour (on production of a valid medical card) for 2 hours of work. Coillte has set out what was involved in this work and how the 2 hour time frame was arrived at in some level of detail. I consider the timeframe of 2 hours as set out by Coillte for processing this information request, bearing in mind the breakdown it has given in how it arrived at this timeframe, does not to my mind seem disproportionate or excessive. Furthermore, I would point out that the steps in the process detailed by Coillte are of the type that this Office would expect to be undertaken in response to a request for environmental information.
50. In his Opinion in Commission v Germany C-217/97 which concerned Directive 90/313/EEC (the predecessor of the current AIE Directive), Advocate General Fennelly considered that the notion of what is“reasonable” must be interpreted in light of the general scheme and purpose of the Directive. In light of this,“the question of whether the charges for the supply of information are ‘reasonable’ must be judged from the perspective of the member of the public requesting the information, rather than that of the public authority” (paragraph 23).
51. Drawing on this Office’s experience and the Commissioner’s various statutory remits, I consider that the average member of the public would not necessarily find 12EUR to be an unreasonable sum of money in the circumstances of the case, including the time spent by Coillte in processing the request and in the context of other comparable expenses that members of the public incur on a daily basis. For example, an appeal to this Office by a medical card holder incurs a charge of 15EUR.
52. The test set out byEast Sussex also explains that when assessing the reasonableness of the charge“account must be taken… of the public interest in the protection of the environment” . Coillte has provided this Office with the records at issue, and I have considered the public interest in the protection of the environment of the information within the records. In general, if there is a high public interest, this may call into doubt the reasonableness of the charge. The appellant asserts there is a significant public interest in the information at issue. But in the circumstances of this case I am not persuaded the public interest in the information at issue (I have examined all relevant records provided) is sufficiently high enough to render the fee of 12EUR proposed by Coillte unreasonable.
53. For the reasons I have set out, in the circumstances of this case I am not persuaded that the fee imposed by Coillte is unreasonable either subjectively or objectively – the test set out byEast Sussex to determine whether the charge imposed has a deterrent effect on persons wishing to obtain the information. It follows that I find that the fee of 12EUR upon production of a valid medical card is reasonable and Coillte has acted in accordance with article 5(2) of the AIE Directive and article 15(1) of the AIE Regulations.
54. The appellant has said in submission to this Office on 11 July 2024 that he disputes Coillte’s schedule of charges which is not consistent with the findings of the ACCC in ACC/C/2017/147 paragraph 89. He says he considers“the judgement in the East Sussex case (C-71-/14) to be unsound and will look to challenge it through the Courts when the right opportunity comes along.” For context, the appellant here is referring to the findings and recommendations of communication ACCC/C/2017147 concerning compliance by the Republic of Moldova, adopted by the Aarhus Convention Compliance Committee on 25 July 2021 which stated that charges“must not include the cost of the collection or acquisition of the information itself or any other indirect cost.”
55. By way of background, the ACCC was established under Article 15 of the Aarhus Convention and serves as a compliance mechanism whereby Parties to the Convention or members of the public may, for example, bring a concern regarding the implementation of the Convention to the Committee for consideration. It is a non-confrontational, non-judicial and consultative mechanism established to review compliance by Parties to the Convention. While it is useful to refer to, the question before me is whether the public authority in this appeal acted in accordance with article 5(2) of the Directive, and applied article 15(1) of the AIE Regulations correctly, and in deciding this I am bound by the relevant case law, including the judgment ofEast Sussex .
56. As I have set out above the ECJ inEast Sussex clearly stated that charging for time spent on search and retrieval of records is permitted therefore I find that Coillte was entitled to take this into account when calculating the charge. The appellant is entitled to challenge these findings through the appropriate mechanisms if he wishes to do so, as he acknowledges in his submission to this Office.
57. Having carried out a review under article 12(5) of the AIE Regulations, I affirm Coillte’s decision.
58. 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