Decision
Mr F and Coillte
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-126555-Q4Z4S9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-126555-Q4Z4S9
Published on
Whether Coillte was justified in giving access to information relating to the appellants request other than in the form or manner requested under article 7(3)(a)(i) of the AIE Regulations
30 August 2024
1. This case concerns a request for environmental information submitted to Coillte by the appellant on 19 May 2022, in which he requested:
“With reference to Indicator 6.1.2 of FSC-STD-IRL-012012- Irish Forest Stewardship Standard-EN*, the information requested is:
A copy of the sub-catchments map/s from the Management Plan of each Coillte FMU showing the location of the FMU in the catchment and the status of water quality.
The Management Plan shall include a sub-catchment map showing the location of the FMU in the catchment, the status of water quality, and other catchment and landscape level environmental information.
If the information is available in GIS format (ERSI Shapefiles and attribute data) that would be my preferred option otherwise I wish to receive the information for in standard electronic format”.
2. This request followed a number of communications between the appellant and the authority where similar information was being requested by the appellant and for which the authority had assigned a separate case number. The request in question as part of this decision, as set out above, was submitted as part of a chain of emails concerning the previous request and as such the authority took this communication by the appellant to concern this older case. In this older request the authority had indicated that relevant information would be published on the authority`s website on a given date. As the appellants original request was not interpreted as a new request under the AIE Regulations the authority failed to interpret the communication, as set out above, as a new AIE request and therefore an original decision was not issued by the authority.
3. On 20 June 2022 the appellant requested an internal review on the basis of a deemed refusal.
4. The internal review issued on the 20 July 2022, with an apology for being a day late, in which the authority determined that the request should be refused in reliance on Article 7(3)(a) of the AIE Regulations.
5. The authority went on to further explain that it had, within its internal review decision, corrected its previous position that the information was available on Coillte`s website and that the “information which had been published on Coillte’s website in relation to BAU Forest Management Plans did not provide maps and that all relevant maps and water quality status information was actually publicly available on www.catchments.ie, as published and maintained by the EPA”.
6. On 21 July 2022 the appellant submitted his appeal to this Office.
7. I am directed by the Commissioner for Environmental Information to undertake a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the authority and the appellant as outlined above and to correspondence between my Office and both the authority and the appellant on the matter. 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)
8. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. The scope of this review concerns whether the authority was justified in giving access to information relating to OCE-126555-Q4Z4S9 other than in the form or manner requested under article 7(3)(a)(i) of the AIE Regulations.
10. For the purpose of clarity, I believe it may be useful at this point to provide detail on the relationship between the authority and the auditing body which administers the standard in question in this appeal. The following information was provided by Coillte during the course of this review: “the Irish Forest Stewardship Standard is the standard to which the Soil Association audit Coillte against. This Standard has been verified and authorised as the national standard by the FSC. They have in turn accredited the Soil Association, through a worldwide certification agency, Assurance Services International (ASI), to conduct audits to the FSC Standard in Ireland, which they do at least once a year”.
11. The role of this Office is to review appeals of decisions on requests for access to environmental information within the scope of a request, which is held by or for the relevant public authority and no more than that. Accordingly, this decision does not seek to draw suggestion on how or whether the authority in question has met the criteria in satisfaction of the indicator in question within the Irish Forest Stewardship Standard.
12. It is clear from the comments of the Court of Appeal in Redmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83, at paragraph 51, that the nature of a review by this Office is inquisitorial, rather than adversarial in nature. The extent of the inquiry is determined by this Office, and not by the parties to the appeal.
13. A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law at the time of this decision.
The Appellant’s Position
14. In his submission to this Office the appellant made a number or comments which I will summarise as follows:
• On a number of previous occasions Coillte has informed the appellant that the authority equates its six Business Area Units (BAU’s) with the Forest Stewardship Council (FSC) Forest Management Units (FMU). Coillte has been certified under this precise FSC Standard for many years and is annually audited to ensure that it is complying with the Standard.
• It is the appellants view that his request, “would have required Coillte to provide six maps showing the location of each of the six FMU’s in the relevant catchment with an indication of the status of water quality in that catchment”. Furthermore, the appellant states that, “I would have expected these to appear in the Management Plan documentation as indicated by the certification criteria of 6.1.2 and that the publication of the Management Plan documentation should have fulfilled my request”.
• The appellant states that the information being sought is, “a sub-set of the information required under the certification standard”, and as such he has not sought details of where, “I can find all of the relevant information in order to be able to construct my own map”.
• The appellant also disputes that the information that he is seeking is otherwise available in an easily accessible manner (as stated by the authority) as the website in question contains no information on Coillte`s Forest Management Units (FMUs) but rather shows the water quality status data at the level of individual River Sub Basins (RSB`s).
• The appellant further states that to reproduce the requested information he would have to access the water quality status of potentially over 600 individual RSB’s and to produce his own map correlating this information to each of Coillte`s FMUs.
Coillte`s Position
15. In its correspondence with this Office, the authority has stated:
• Access to the environmental information requested by the Appellant (“the Information”) was refused by Coillte in reliance on article 7(3)(a) of the AIE Regulations as the information requested is available to the public in another form or manner which is easily accessible and to access the Information in such other form or manner is reasonable. In this case the information requested by the appellant can be accessed on Coillte’s website and on www.catchments.ie, as published and maintained by the Environmental Protection Agency (EPA).
• The Internal Review assessed the Request and determined that same should be refused in reliance on Article 7(3)(a) of the AIE Regulations with the Internal Review correcting Coillte’s previous position, taken in correspondence with the Appellant, that the information was available on Coillte's website by clarifying that information which had been published on Coillte’s website in relation to BAU Forest Management Plans did not provide maps and that all relevant maps and water quality status information was actually publicly available on www.catchments.ie, as published and maintained by the EPA.
• The authority also provided a guide, in its submission, in consultation with its own Subject Matter Expert (SME), as to the necessary steps which would have to be taken by an individual to access the required information online. These steps are:
1. Refer to the relevant BAU Five Year Forest Plan (currently six plans published on Coillte’s website) https://www.coillte.ie/our-forests/public-goods/forest-plans/
2. Go to Appendix IV – Catchments and Sub-Catchments and select the relevant WFD Catchment or Sub-Catchment name
3. Go to https://www.catchments.ie/data/#/?_k=l0gdc7
4. Enter the selected name in the search tool to access all information
• The authority again stated that it was, “undoubtedly more efficient, and less disruptive on work of Coillte, to direct the Appellant to easily accessible online resources to access the Information. That is the reason for Coillte applying Article 7(3)(a)”.
16. In its submission the authority has also provided detail, on its view, that the transposition of Article 3(4) of the Directive resulting in the corresponding article of the Regulations article 7(3)(a) supports how the authority has sought to provide the requested information to the appellant. In its development of this point the authority has stated, “it is also clear from exception (a) in Article 3(4) of the Directive that the test of easy accessibility of information in another form or format will not only be satisfied if there has been compliance with Article 7, but that it will “in particular” be satisfied if there has been compliance with Article 7 (or Article 5 of the AIE Regulations) - which there has been in the instant case – thus making Coillte’s reference to easy accessibility here particularly cogent and aligned with the legislation”.
17. The investigator in this appeal requested further clarification on a number of questions specifically on the authority`s compliance with the Irish Forest Stewardship Standard and the basis on which the auditing body has assessed the authority`s compliance within the audit. In response to this request Coillte provided a number of clarifications which I believe to be relevant to this appeal, these are set out as follows:
1. Coillte has complied with the requirements of Indicator 6.1.2 of FSC-STD-IRL-012012- Irish Forest Stewardship Standard-EN.
2. The certifying body (Soil Association) accept the publication of a list of catchments and sub-catchments in Coillte’s BAU Five Year Forest Plans along with links to the EPA website as sufficient.
3. Similar instructions are provided to the Soil Association by Coillte to satisfy the requirements set out in Indicator 6.1.2 of FSC-STD-IRL-012012 as those provided to the appellant
4. Coillte confirms that the information was not provided to the certifying body in another form or manner.
18. Article 6(1)(e) of the AIE Regulations provides that if an applicant desires access to environmental information in a particular form or manner, the request shall specify the form or manner of access desired. In his original request the appellant has specifically asked for, “A copy of the sub-catchments map/s from the Management Plan of each Coillte FMU showing the location of the FMU in the catchment and the status of water quality”. I note that this request also specifically makes reference to the relevant indicator (Indicator 6.1.2) within the Irish Forest Stewardship Standard against which the authority is audited on. The appellant also specified that his preference would be to receive the information in GIS format (ERSI Shapefiles and attribute data) but standard electronic format would also be acceptable. Accordingly, I am satisfied that the appellant specified the form of access desired in accordance with article 6(1)(e) of the AIE Regulations.
19. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request, subject only to the provisions of the AIE Regulations.
20. Article 7(3)(a)(i) of the AIE Regulations provides that where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless the information is already available to the public in another form or manner that is easily accessible. Article 7(3)(a)(i) of the AIE Regulations seeks to transpose Article 3(4)(a) of the AIE Directive, which provides that where an applicant requests a public authority to make environmental information available in a specific form or format (including in the form of copies), the public authority shall make it so available unless it is already publicly available in another form or format which is easily accessible by applicants.
21. It is important to note that article 7(3)(a)(i) of the AIE Regulations must be read alongside article 7(3)(b) of the AIE Regulations, which provides that where a public authority decides to make available environmental information other than in the form or manner specified in the request, the reason therefore shall be given by the public authority in writing.
22. It should also be noted that article 7(3)(a)(i) of the AIE Regulations can only be considered where a public authority has carried out relevant searches, identified relevant information held by or for it, determined that information should be released, and has then decided to give access to that information other than in the form or manner requested. When relying on article 7(3)(a)(i), the public authority should identify the specific information concerned and direct the requester to where it is already available to the public and can be accessed.
23. A public authority may seek to rely on article 7(3)(a)(i) of the AIE Regulations in cases where, for example, the information sought is held by or for it, but it also considers that the information is available on the internet or that it has already released the information to the requester under the AIE Regulations (this is because disclosure under the AIE Regulations is understood as disclosure to the world at large). In such cases, the public authority should identify the specific information concerned, show where it is available on the internet or that it has already been released, and show that it is easily accessible to the requester. However, in cases where, the public authority is of the view that the information sought is not held by or for it, it cannot then give access in another form or manner under article 7(3) of the AIE Regulations; rather it should seek to rely on article 7(5) of the AIE Regulations, identifying the searches carried out in an effort to locate the information.
24. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned. This Office’s approach to dealing with cases where a public authority has effectively refused a request under article 7(5) is that this Office must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, this Office considers that a standard of reasonableness must necessarily apply. It is not normally a function of this Office to search for environmental information.
25. Article 7(6) of the AIE Regulations provides that where article 7(5) applies and the public authority concerned is aware that the information requested is held by another public authority, it shall as soon as possible (a) transfer the request to the other public authority and inform the applicant accordingly, or (b) inform the applicant of the public authority to whom it believes the request should be directed.
26. The first question I must consider is whether Coillte was justified in giving access to information relating to the appellants request other than in the form or manner requested under article 7(3)(a) of the AIE Regulations.
27. The authority, in its internal review decision formally outlined the basis for refusing the appellants request, referring to article 7(3)(a) of the AIE Regulations and stating that under this article, “the request may be refused where the environmental information is “already available to the public in another form or manner that is easily accessible” in that the list of catchments and sub-catchments are now available on Coillte’s website, and the maps associated with each of those sites can be viewed on the EPA’s catchments map, thereby providing full access to the information you have sought”.
28. The above is not, however, a correct interpretation of article 7(3)(a)(i), as this provision does not provide a basis for refusing a request, it instead provides for the granting of a request by directing the requestor to publically available information, as an alternative to providing the appellant with the information that is in fact held by the public authority..
29. In this appeal I find that the wording of the request to be of particular relevance. The appellant has specified in adequate detail the information which he requires in answer to his request. The information requested refers to an indicator within an audit, the requirements of which, Coillte has stated that it has complied with. This indicator requires Coillte to provide within its Management Plan, “a sub-catchment map showing the location of the FMU in the catchment, the status of water quality, and other catchment and landscape level environmental information”.
30. As set out above, Coillte has stated that it has satisfied this requirement by providing the auditing body with a list of catchments and sub-catchments within its Business Area Units (BAUs) together with a link to the website of another public authority (the Environmental Protection Agency`s Catchments website) where information on the water quality within these catchments can be found.
31. The investigator in this case has provided Coillte with a number of opportunities to clarify whether it had been established that Coillte did in fact hold the requested information prior to its reliance on article 7(3)(a)(i) of the Regulations.
32. In response to these queries, Coillte has stated that “Coillte staff, when necessary, download and view the catchment maps from the EPA managed website www.catchments.ie, so from that point of view we do have the maps when they are accessed on a Coillte device, but Coillte do not create or generate the relevant catchment maps nor do we hold maps that we can say are up to date at any given time, in accordance with Article 5(1)(c) of the AIE Regulations, as this dataset is generated, published and maintained by the EPA. The EPA maps are not available as a dataset on the Coillte public map viewer and we do not use the maps to generate our own version of these catchment maps. It is therefore reasonable for Coillte to provide access in another form or manner being the EPA maintained website in accordance with Article 7(3)(a). We do not hold the catchment maps as a dataset.”
33. In Coillte`s final response to these requests for clarification the authority further stated:
• Coillte does hold the sub-catchment maps sought by the Appellant, therefore we do not rely on Article 7(5) in refusing the Request.
• Coillte staff, download the catchment maps from the EPA managed website www.catchments.ie. The maps are stored in a central database for staff to access as and when required e.g. by Ecologists when generating a pre-screening report for NIS.
• The EPA maps are not available as a dataset on the Coillte public map viewer, and we do not use the downloaded maps to generate our own version of these catchment maps.
• We regularly refer to the data source, i.e. www.catchments.ie, for up-to-date and accurate data. We cannot confirm that the downloaded maps which we hold are up to date at any given time, in accordance with Article 5(1)(c) of the AIE Regulations, as this dataset is generated, published and maintained by the EPA. That is the most up to date source of information.
• It is therefore reasonable for Coillte to provide access in another form or manner, pursuant to Article 7(3)(a)(i) and (ii), by directing the Appellant to the EPA maintained website. The information/data is easily accessible through that public forum.
34. The issue that arises from the above is that the appellants request was not for sub-catchment maps in general, but as referred to in his request, “a copy of the sub-catchments map/s from the Management Plan of each Coillte FMU showing the location of the FMU in the catchment and the status of water quality”. While it is clear from Coilltes response, as noted above, that authority staff do on occasion download catchment maps from the EPA website as part of their day to day work and these are then stored in a “central database for staff to access as and when required”. I have however been unable to establish whether Coillte hold the specific maps requested by the appellant, namely, “sub-catchments map/s from the Management Plan of each Coillte FMU showing the location of the FMU in the catchment and the status of water quality.” While Coillte have stated above that it holds the sub-catchment maps sought by the appellant and therefore are not relying on 7(5), this appears to be a reference to maps downloaded from the EPA website by staff members. This may be information that is related to that requested by the appellant, but it is not the information requested. Coillte have also stated that it does not create or generate the relevant catchment maps.
35. From the above, and given that Coillte has stated that the certifying body (Soil Association) accept the publication of a list of catchments and sub-catchments in Coillte’s BAU Five Year Forest Plans along with links to the EPA website as sufficient, it appears Coillte do not in fact hold the information requested and as such the IR decision should rely on Article 7(5) to refuse access to the information. As Coillte has not demonstrated that it does in fact hold the requested information, it cannot grant the request by relying on article 7(3)(a)(i) of the Regulations. I have the power under the AIE Regulations to vary the decision of Coillte to this effect but think that it is better to remit the matter to Coillte for further consideration as Coillte are better able to make a finding as to whether or not it holds the information
36. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby annul Coillte`s decision in this case. A new internal review process should be carried out under article 11 of the AIE Regulations.
37. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O`Leary
On behalf of the Commissioner for Environmental Information