Decision
A Group and Coillte
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-145346-Y6V5T2
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-145346-Y6V5T2
Published on
Whether Coillte was justified in refusing access to information falling within the scope of the request under article 7(5)
10 July 2024
1. On 6 November 2023, the appellant emailed Coillte at info@coillte.ie and made the following request under the AIE Regulations:
“We wish to make an AIE Request for information related to Coillte's comment in its decision on AIE request 20230213.
"Following interviews with the Engineering Process Manager and with the Engineering Manager in BAU 6, it was confirmed that in relation to the information being provided for points a, b, c and d of the Request, Appropriate Assessment Screening Reports do not exist in Coillte for roadworks carried out where consent was not sought from the DAFM. To clarify, in relation to the information being provided for works carried out where consent was not applied for because consent was not required, appropriate assessment screening reports do not exist."
We wish to receive all information related to Coillte's position that AA Screening Reports are not produced / required for projects where consent from DAFM is not required for the planned works.
This is to include, inter alia;
1. All legal advice or opinion provided or supplied to Coillte (any source)
2. Internal discussions related to the issue.
3. Agenda and relevant Minutes where the issue has been discussed
4. Correspondence”
2. Coillte did not respond to the appellant’s original request within the deadline provided for by the AIE Regulations.
3. On 7 December 2023, the appellant emailed Coillte, querying whether it had made a decision on its’ request. The appellant stated that if no decision had been made, it was making an internal review request on the basis of Coillte’s deemed refusal of its original request.
4. While it appears there may have been some correspondence between the parties in late December 2023, Coillte failed to substantively respond to the appellant’s correspondence seeking an internal review. The appellant wrote to Coillte again on 8 January 2024 seeking a response.
5. Coillte did not issue an internal review decision within the statutory deadline and the appellant appealed to this Office on 15 January 2024 on the basis of Coillte’s deemed refusal of its internal review request.
6. In a late internal review decision issued on 17 January 2024, Coillte refused the request under article 7(5) of the AIE Regulations on the basis that “no material records exist with the information sought by the appellant.
7. Coillte noted that while the appellant’s original AIE request had not specified a time period for the information sought, the request had referred to a separate AIE request where the timeframe concerned the years 2021 and 2022. Coillte stated that it was proceeding on the basis that it was “reasonable to use 1 January 2021 to the date of receipt of the Request as an appropriate timeframe.”
8. It went on to set out in some detail the steps it had taken to identify what, if any, environmental information it held relevant to the request, including details of the discussions the decision maker had with staff working in the relevant section of Coillte, information concerning the types of searches carried out, and where those searches were undertaken. Coillte also provided some background as to when licences are and are not sought from the Department of Agriculture, Food and the Marine (the Department) in the context of forest road works/development.
9. The appellant indicated to this Office that it wished to pursue its appeal on 12 February 2024.
10. I am directed by the Commissioner to conduct a review of this appeal. I have now completed this review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department. 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’).
11. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
12. I note that neither the original decision, nor the internal review decision in this appeal were issued within the timelines provided for in the AIE Regulations. Coillte state that this was because the request was made to info@coillte.ie rather than to aie@coillte.ie. Coillte should ensure that all staff in the organisation, in particular those managing busy email inboxes such as an “info” email inbox, are trained to recognise AIE requests and forward these immediately to the AIE team for attention.
13. In correspondence with this Office of 12 February 2024, the appellant stated the following:
“We accept that no information may exist in respect of our request. The decision actually confirms our suspicions in that regard. That said, we don't think that just asking members of staff if any records exist is sufficient. It would appear from the decision that no actual searches took place. We are of the view that this does not reflect all reasonable steps being undertaken. A small memory lapse on the part of anyone interviewed could result in information being missed. If it is not too much trouble we would like to pursue this appeal to be sure that all reasonable avenues have been explored.”
14. In its submission to this Office of 25 March 2024, Coillte questioned whether the appeal “has been instigated in good faith as the grounds of appeal are simply misleading.” It argued that the wording of the appellant’s correspondence implied that “Coillte did not give any explanation of searches carried out and that Coillte staff were only asked by the IR Decision maker to confirm if records existed.” Coillte asserted that it was “misleading to initiate an appeal with a misstatement of fact.”
15. Coillte asked this Office to examine the grounds of appeal and firstly decide “if there is merit in the Appeal in circumstances where it has been brought to the OCEI on such misleading grounds.”
16. I have considered the wording of the appellant’s correspondence with this Office, Coillte’s late internal review decision, and the comments made by Coillte in its submission regarding the bona fides of the appellant in making its appeal to this Office. It seems to me that the appellant disputes whether the steps undertaken by Coillte to identify any relevant environmental information included “actual” searches. I will consider those steps later in this decision. However, whether or not the appellant is correct in its position, or whether or not its understanding of the matter is supported by the contents of Coillte’s internal review decision, this does not in any way suggest that the appellant is not acting in good faith. On that basis I find that I have no grounds to dismiss the appeal as suggested by Coillte without carrying out a review.
17. The scope of this review is concerned with whether Coillte was justified in refusing access to any information falling within the scope of the request dating from 1 January 2021 to 6 November 2023 under article 7(5) of the AIE Regulations.
18. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. 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. In cases where a public authority has effectively refused a request under article 7(5), 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, a standard of reasonableness must necessarily apply. It is not normally this Office’s function to search for environmental information.
The appellant’s position
19. The appellant accepts that no information may exist relevant to its request. However, it contends that “just asking members of staff if any records exist” is not sufficient, and that it appears from Coillte’s late internal review decision that “no actual searches took place.” The appellant argues that “this does not reflect all reasonable steps being undertaken. A small memory lapse on the part of anyone interviewed could result in information being missed.”
Coillte’s position
Coillte’s internal review decision
20. In its late internal review decision, Coillte stated that it was refusing parts 1-4 of the request “with reference to Article 7(5) as no material records exist with this information.”
21. Coillte first provided some background and contextual information about when licences are sought from the Department in the context of forest road works/development. Coillte stated that where new forest road development is taking place, it obtains an appropriate licence from the Department. In relation to works on pre-existing forest roads, Coillte stated the following:
“For works on pre-existing forest roads, where a licence is not required, a high-level internal assessment is conducted, which is recorded in Coillte’s planning system, i.e. Land Resource Management system. Following the high-level assessment, the works manager creates a project plan aimed to immediately rule out any potential impact. As a result of project planning, one output may be that no further environmental assessment is required. This is done on a case-by-case basis. Where an immediate impact can't be ruled out Coillte can apply to DAFM for a licence application.”
22. In relation to the types or categories of records created in relation to the subject matter of the appellant’s request, Coillte stated that:
“[t]he records typically created in relation to the topic may involve, legal advice, meeting agendas, minutes, and correspondence, such as: email correspondence to confirm works required and responses to any additional information.
1. All legal advice or opinion provided or supplied to Coillte (any source) – if such information existed, it would be held by the division who sought the advice or opinion, i.e., by the Engineering Process Team, as that team are responsible for road licensing applications and for assessing the project plans prepared by relevant works managers.
2. Internal discussions related to the issue. If such information existed, it would be contained within meeting minutes or emails. I will comment on meeting minutes as it is at point 3 below. Emails are stored in individual Outlook accounts of staff, being members of the Engineering Process Team for the reasons outlined at 1 above.
3. Agenda and relevant Minutes where the issue has been discussed. If such information existed, it would be held by members of Engineering Process Team for the reasons outlined at 1 above.
4. Correspondence. If correspondence existed, it would be held by members of Engineering Process Team for the reasons outlined at 1 above.”
23. Coillte stated that in order to determine if records relevant to the appellant’s request existed, it held detailed discussions with both the manager and individual members of the Engineering Process Team. It stated that the Engineering Process Team is responsible for all work relating to road licensing. Coillte stated that it held these discussions in order:
(a) to ascertain if the information sought by the appellant typically exists and/or is held by Coillte; and
(b) to request the Engineering Process Team to carry out “appropriate keyword and file searches if they are aware that such information is held by Coillte”.
24. Coillte stated that it held a meeting with subject matter experts from the Engineering Process Team. It said that follow up meetings were held with the Road Licensing Specialist in that team on 15 January 2023, and with the Engineering Process Manager on the 17 January 2023.
25. Given the timeline of this request, it is reasonable to presume Coillte intended for the years listed in paragraph 46, above, to read 2024, and I am proceeding on that basis.
26. Coillte stated that:
“[f]ollowing these detailed enquiries and discussions with the relevant subject matter experts, they confirmed that they did not obtain legal advice on the subject matter. They further confirmed there are no meeting minutes where this subject was discussed. They confirmed there are no emails or correspondence (whether internal or external) on the subject matter.”
27. With regard to the searches carried out for relevant environmental information, Coillte stated that the Engineering Process Team’s cloud based storage was searched, and that in addition, a key word search was carried out by the “key team members” involved in “developing such documents.” Coillte stated that the members of the Engineering Process Team it engaged with in response to the appellant’s request had been with that team “for a number of years” and were “fully familiar with the subject matter” and were “satisfied that the requested information does not exist.”
28. Coillte concluded its internal review decision by stating that, on the basis of its inquires, it was satisfied that “information in relation to the Request does not exist in Coillte.”
Coillte’s submission to this Office
29. In its submission to this Office of 25 March 2024, Coillte stated that for the purposes of a final submission it was relying on the contents of its internal review decision, which it stated details “the searches carried out by Coillte before concluding that environmental information relevant to the Request did not exist and refusing the Request in reliance on Article 7(5) of the AIE Regulations.”
30. Coillte stated that in it had had “due regard” to what it described as “the parameters which have been established by the OCEI through its decisions, with regard to a public body seeking to rely on Article 7(5).” It noted that its internal review decision had referenced a number of decisions by this Office which concerned article 7(5). Coillte acknowledged that the onus lay with it “to establish that adequate steps have been taken to identify and locate the relevant environmental information, having regard to the particular circumstances, in order to justify its reliance on Article 7(5).”
31. Coillte argued that it had satisfied the “criteria under Article 7(5) by providing specific and thorough detail on the steps taken to search for environmental information and has provided reasons why the information does not exist.”
32. I have considered the details of the searches and discussions undertaken, along with the explanations regarding forest road works/development, provided by Coillte in its internal review decision. I have also had regard to the appellant’s appeal to this Office, and in particular to the appellant’s acceptance that no information may exist in respect of its request.
33. Having regard to these details and explanations, I am satisfied that Coillte has taken adequate steps to identify and locate all relevant environmental information held by it in respect of the appellant’s request. I am satisfied that the appellant was not correct in its assertion that it appeared Coillte had not undertaken any “actual” searches. It is clear from Coillte’s late internal review decision, which is set out in some detail above, that it did indeed carry out searches. Furthermore, the question at issue in an article 7(5) case is whether the steps carried out by the public authority to identify relevant environmental information were reasonable. In the vast majority of such cases, it will be necessary for such steps to include searches if they are to meet the reasonable standard, but this will not always be the case.
34. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the decision of Coillte.
35. 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