Decision
Right to Know CLG and Coillte Teoranta
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-137718-S2R0X7
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-137718-S2R0X7
Published on
Whether Coillte was justified in refusing the request under article 9(2)(a) of the AIE Regulations
2 September 2025
1. This case relates to a request for information, made on 27 January 2023, textually as follows:
Under the AIE Regs to request the following records In August 2015 Coillte excised property comprising its then network of 298 telecoms masts to Infravia Capital Partners for incorporation into a new legal entity ‘Cignal’ which was formed for the purpose of acquiring the assets disposed of by Coillte.
Right to Know wish to make an AIE request as follows:
Please provide all emails, records, memoranda and information concerning communications between the following:
• Fergal Leamy, Chief Executive, and/or
• Mark Foley, then Managing Director Coillte Land Solutions, and/or
• Gerry Britchfield, Chief Operations Officer and Chief Financial Officer, and/or
• Employees in the Land Solutions Department of Coillte,
and
• Telecoms Asset Management Limited (TAML), and/or
• Mr Colin Cunningham (Lead Consultant, TAML),
during the period:
• 1 January 2015 and 31 December 2015
2. On 21 February 2023, Coillte notified the appellant, in accordance with article 7(2)(b) of the AIE Regulations that, due to the complexity and volume of the request, it would not be possible to make a decision within the one-month period specified in article 7(2)(a) of the AIE Regulations, stating that a decision on the request would issue by 27 March 2023 at the latest.
3. On 27 March 2023, Coillte issued its decision letter to the appellant, refusing the request under article 9(2)(a) of the AIE Regulations, noting that it was very broad and manifestly unreasonable having regard to the volume and range of information sought.
4. On the same day, the appellant requested an internal review of Coillte’s decision. Later on the same day, the appellant sent an email to Coillte requesting a telephone call with a view to reducing the scope of the request, noting that it had not been provided with a schedule of records and requesting a copy of same. The next day, Coillte replied by saying that the matter of reducing scope is best addressed at the first decision stage, noting that the appellant had not been requested to refine the scope of the request and suggesting that, if so desired, the appellant withdraw the internal review request and resubmit a new AIE request, presumably with a view to accommodating the appellant to resubmit its request in a refined format. The response of the appellant to this suggestion was that it wished to continue with the internal review as it had not been provided with a schedule of records. Accordingly, the internal review continued its course.
5. On 24 April 2023, Coillte issued its internal review decision, which was to refuse the request on the basis of article 9(2)(a) of the Regulations, citing reasons grounded in article 9(2)(a). It was of the view that:
“…search, retrieval, validation, collation and potential redaction of approximately 2,146 documents…would dramatically overwhelm the AIE Team at Coillte as currently resourced, to the point of practical impossibility.”
6. 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)), having weighed the public interest served by disclosure against the interests served by refusal of the request (article 10(4)) and having considered the possibility of making available environmental information that could be separated out from that which was subject to non-release under articles 8 and 9 (article 10(5)).
7. On the same day, the appellant brought this appeal to my Office, noting that Coillte had not outlined how the request was manifestly unreasonable.
8. I am directed by the Commissioner 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 by Coillte. 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”);
• 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”)
• the finding of the Court of Justice of the European Union (CJEU) in T-2/03 Verein für Konsumenteninformation v. Commission of the European Communities (Verein für Konsumenteninformation); the opinion of the Advocate General of the CJEU in C-217/97 Commission v Germany and Coillte v Commissioner for Environmental Information Case C-129/24 ;
9. 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.
10. 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.
11. 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. For this reason, I have not required the provision to this Office of copies of the information that is potentially relevant to the request in this case.
12. Article 9(2)(a) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. This provision seeks to transpose Article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and, in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.
13. Article 9(2)(a) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in articles 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
14. 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).
15. The Minister’s Guidance, at paragraph 12.8, states that article 9(2) of the AIE Regulations“clarifies that a public authority may refuse to make information available if the request is considered unreasonable due to the range of material sought, if the request is too general or if the material requested is not yet completed. Public authorities are requested to invoke these grounds for refusal sparingly, and to assist the applicant (to reformulate a request, for example) as appropriate” . In light of this, I am of the view that where a public authority intends to refuse a request under article 9(2)(a) of the AIE Regulations, it should first assist the appellant to reformulate the request as appropriate. Both public authorities and appellants should seek to liaise constructively with a view to processing the request as efficiently as possible. It is important to note that constructive engagement is not, in and of itself, a requirement for a public body’s reliance on or an immediate basis for refusal under article 9(2)(a) of the AIE Regulations.
16. I note that in its internal review decision, Coillte avers to its original decision as noting a previous invitation from Coillte for engagement with the appellant so that the request could be refined in the interest of avoiding a full refusal. However, the investigator has found no reference to such an invitation in that decision. While it is possible that an invitation was made in separate correspondence between the parties, I am not in a position to confirm this as I have not been provided with any such correspondence. Given Coillte’s ultimate reliance on article 9(2)(a), it would have been an appropriate course of action to take prior to making that decision. Further on in the internal review decision, Coillte states that at“the time of the decision [it] did not engage with [the requester] in line with Commissioner Guidance on the AIE Regulations.” This seems to contradict the previous statement in the same internal review letter that an invitation to refine the request had issued to the appellant. The appellant, following submission of its internal review request, sought by email a telephone call with Coillte with a view to reducing the scope of its request together with a copy of a schedule of records. This seeking to refine the request followed Coillte’s first decision letter in which it had communicated to the appellant that it had identified 2,146 documents“at least” that would need to be reviewed in order substantively to respond to the request. Coillte’s response to this attempt of the appellant to refine its request was that concerns regarding“refining the request are best addressed at the first decision stage” and noted that the appellant had not been requested to refine its request. This latter statement seems to confirm that engagement by Coillte with the appellant to reduce the scope of the request had not, in fact, taken place. The appellant in turn responded to say that a refining of its request was not possible without sight of a schedule of records. If it is the case that no engagement took place between the parties on the matter of a reformulation of the request, this I find to be disappointing and unacceptable. However, equally unfortunate is the appellant’s refusal to respond positively to Coillte’s suggestion, wishing to continue with the internal review and expressing inability to refine the original request (by withdrawing it and resubmitting a fresh formulation of it) on the basis of not being in possession of a schedule of records, as a refining of the request in this case may well have enabled Coillte to provide a response that would have satisfied the appellant and obviated the need for this appeal. Whilst I acknowledge that the provision of a schedule of records in this case may well have assisted the appellant in identifying records that would have allowed it to refine its request, and while I have always encouraged public authorities to provide such a schedule with their decision letters, I equally acknowledge that there is no obligation under the AIE Regulations for public authorities to provide such a schedule. In this particular case, I accept also that the compiling of a schedule of records comprising detail on possibly more than 2,146 documents would in itself, not unreasonably, be considered a significant administrative burden, particularly if it is for the sole purpose of enabling an appellant to refine a request rather than for responding substantively to an AIE request. As a major reason for refining a request is to enable a public authority to narrow the scope of searches for relevant records and to respond adequately to a request without undue delay, I am satisfied that the refinement of a request does not require, in a case such as this one, where thousands of records are in play, the provision of a schedule of records, only that the request be articulated in such a way that it allows a public authority to respond to it without having to contemplate reliance on article 9(2)(a) in order to refuse release of information. Accordingly, I am of the view that, while in normal course it is good practice for a public authority to provide a schedule of records with their first instance decisions, in a case such as this where the extent of the numbers of records is such that a refinement of a request would be appropriate, and where engagement of article 9(2)(a) is contemplated by a public authority to refuse release of information, it is not unreasonable for a public authority not to provide a schedule of records. However, it is equally my view that should a public authority be of the view that it is required to rely on article 9(2)(a) in order to refuse a request, this should be done only following a request to an appellant to refine a request in order to reduce its scope in an attempt to allow it to provide an adequate response. In submissions to this Office, Coillte stated that“[t]he Internal Reviewer dealt reasonably with a request to refine, and the Applicant did not take an opportunity to explore a refinement of their own request.” This opportunity was a suggestion by Coillte that the appellant withdraw its internal review request and“resubmit a new AIE request to Coillte.” In those same submissions, the substantive content of which was relayed to the appellant for review and comment, Coillte expressed that it “is open at this point to engagement with the Applicant to refine the Request.” The response of the appellant to this offer of engagement was that “[w]ithout a schedule we have no way to narrow the scope of the request” . In this case, I find it difficult to accept that Coillte would not have considered it appropriate not to seek a reformulation of the request at first instance stage, given the number of records it asserts might potentially be relevant to the request. However, given the appellant’s apparent willingness to reformulate its request following submission of its internal review request of Coillte’s first instance decision, I am satisfied that Coillte was correct in suggesting that the appropriate course of action at that moment was for the appellant to withdraw the internal review request and to submit a reformulated request, which would constitute, in effect, a fresh AIE request. This would work to reduce the scope of records at play, allowing Coillte more readily to refine its searches and its review of records accordingly. However, as the reformulation of the request in this case requires collaboration on the part of the appellant, I am of the view that greater willingness on its part to reformulate its request such as to reduce the potential number of records in scope in this case would have been fruitful, enabling it potentially to receive information it was seeking and allowing for a less resource-intense administrative burden, both for Coillte and for this Office, which is currently attempting to process an unprecedented number of AIE appeals. As stated above, I am satisfied that a reformulation of the request in this case does not require the provision to the appellant of a schedule of records which, in any event, appears not to have been compiled.
17. 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 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.” It noted that“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. Public 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 request for advice by Belarus, ACCC/A/2014/1, para. 28).
18. 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.
19. 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, I 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 in T-2/03 Verein für Konsumenteninformation v. Commission , at paragraphs 101-115, I consider that the exception in article 9(2)(a) is only available 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. I expect that if a public authority wishes to rely on the manifestly unreasonable nature of a request, that public authority will clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.
20. This position is supported by recent comments from Advocate General Medina in his opinion on Coillte v Commissioner for Environmental Information Case C-129/24 , in which he stated“in so far as it constitutes an exception to the general rule that information must be provided, refusal on the ground of a manifestly unreasonable request must remain exceptional” (at paragraph 117). In this opinion he also states“In particular, with regard to the volume of the information requested, according to Article 3(2)(b) of Directive 2003/4 that factor (as well as the complexity of the information requested) justifies an extension of the one-month time limit in which the administration must reply. It follows from a combined reading of Article 3(2)(b) of Directive 2003/4 and Article 4(2)(b) of that directive that the volume of the requested information alone does not render a request manifestly unreasonable” (at paragraph 119) . He concludes however that a holistic view must be taken of each case, stating“it follows that determining whether a request is manifestly unreasonable depends not on the number, the nature or the frequency of requests taken in isolation, but on all the circumstances of each case” (at paragraph 125).
21. It is also important to bear in mind article 5 of the AIE Regulations and Articles 7 and 3(5) of the AIE Directive, which place duties on public authorities to organise and actively disseminate environmental information, to support the public in seeking access to information and to put practical arrangements in place to ensure the effective exercise of the right to access environmental information. It is not within this Office’s powers to examine the implementation of article 5 of the AIE Regulations or article 7 of the AIE Directive by public authorities. However, I am satisfied that the exemption in article 9(2)(a) is not intended to endorse any failure by a public authority to comply with its duties to organise and disseminate environmental information under those provisions. Furthermore, in every case, regard should be had to the purpose of the AIE Regime, as reflected in Recital 1 of the Preamble 6 to the AIE Directive, which provides that“increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment.” Accordingly, in cases involving article 9(2)(a) this Office may 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.
22. The appellant contends that Coillte has not outlined how its request is manifestly unreasonable and that without a schedule of records it is unable to refine its request.
23. In both its original and internal review decisions, Coillte refused the request on the basis of 9(2)(a), arising from its view that the request was manifestly unreasonable having regard to the volume or range of information sought.
24. In its internal review decision, Coillte stated that the request“as currently formulated envisages access to an extremely large volume of documents.” It went on to state that the workload involved in assessing emails, records, memoranda and information from Coillte email accounts and from Telecoms Asset Management Limited (TAML) and/or Mr Colin Cunningham of TAML for a period of 12 months“would involve search, retrieval, validation, collation and potential redaction of approximately 2,146 documents” which“would dramatically overwhelm the AIE Team at Coillte as currently resourced, to the point of practical impossibility.” This impossibility, according to Coillte, rendered the request to be manifestly unreasonable. Coillte explained the reasons why, in its view, the public interest weighed in favour of refusing the request (a matter which I shall elaborate on further below) and determined that, as the request was for “all” communications and other relevant records between and among the cited persons in the text of the request, this lack of specificity undermined Coillte’s ability to conduct“any severance exercise in searching for information appropriate for disclosure” , in line with the exercise under article 10(5) of the AIE Regulations to separate out and release information not subject to exempting provisions in those Regulations from information that might be so exempt from release. Coillte’s view was that this exercise requires that a request identify specific records rather than be vague, limitless or otherwise non-specific, denominating this latter type of request as being“catch-all” or“trawling” in nature.
25. Coillte went into more detail, in its submissions to this Office, regarding the reasons it relied on article 9(2)(a) to refuse the request. Noting that the request is“very broad” , it went on to make the following statements:
(a) “Nothing in the Request itself indicates that it is targeted at environmental information. Rather, the Request appears to be framed on the assumption that all the information that may be responsive to the Request is environmental information. It is Coillte’s view, that this is unlikely to be the case.”
(b) “Mr Cunningham was not an employee of Coillte but was engaged in many aspects of Coillte’s business before and during the Relevant Period. As Mr Cunningham worked closely with Coillte’s Land Solutions Department, a very large amount of information concerning communications between Mr Cunningham and /or TAML and the other persons specified in the Request was generated in the Relevant Period.”
(c) “It has been assessed that approximately 2,146 documents at least would need to be reviewed in order for Coillte to respond substantively to the Request. Each of those documents would have to be reviewed: i. To ascertain whether it comes within the scope of the Request; ii. To ascertain whether it constitutes or contains environmental information, as defined in the AIE Regulations; and iii. To ascertain whether the AIE Regulations mandate that its disclosure should be refused or allow Coillte to not disclose it on a discretionary ground.”
(d) “Having regard to the foregoing, the Request would require an inordinate amount of Coillte’s employees’ time. Therefore, the Request would significantly interfere with the normal course of Coillte’s activities. Whilst Coillte is a public authority for the purposes of the AIE Regulations, it is not publicly funded. It is a commercial enterprise that cannot afford to devote its limited resources to respond to requests under the AIE Regulations that may require hundreds of hours of work.”
(e) “The unreasonableness of the Request is emphasised by the fact that the Request makes no attempt to target environmental information and, while it is prefaced by reference to the Telecoms Transaction, it goes way beyond seeking documents that may be relevant to the Telecoms Transaction. Having regard to the breadth of the Request and the nature of the documents sought, it is highly likely that much of the material captured by the Request would not be environmental information, though Coillte cannot determine this at this point as the information requested has not been reviewed. In addition, assuming that some of the documents held by Coillte that are responsive to the Request are environmental information for the purposes of the AIE Regulations, it is highly likely that many of those documents would be protected from disclosure by one of a number of exemptions in the AIE Regulations.”
(f) “For this final submission, I have engaged with the AIE Team and a number of Subject Matter Experts, to assess the likely workload involved in the Request which involves a review of each of the 2,146 relevant documents to ascertain with regard to each document: - i. whether it comes within the scope of the Request; ii. whether it constitutes or contains environmental information, as defined in the AIE Regulations; and iii. whether the AIE Regulations mandate that its disclosure should be refused or allow Coillte to not disclose it on a discretionary ground.”
(g) “I have determined the following conservative timelines could be applied to each of the three stages above: - Stage (a) - Allow 5 minutes to read each record to assess whether it comes within the scope of the Request: 5 minutes per record x 2,146 records = 178.8 hours. Assume 20% of the records come within the scope of the request = 2,146 x 20% = 429 records. Stage (b) – Allow 5 minutes per record to determine whether it constitutes or contains environmental information: 5 minutes per record x 429 records = 35.75 hours. Assume 50% of the records come within the scope of the request = 429 x 50% = 215 records. Stage (c) – Allow 10 minutes per record to determine if exemptions should be applied and to apply redactions in appropriate cases: 10 minutes per record x 215 records = 35.75 hours” (all emphases are Coillte’s).
(h) “Lastly, time would be required to schedule the final records – I estimate 5 hours given there may still be over 200 records, each would have to be converted to PDF and named/numbered, etc.”
(i) “I can summarise the calculation of hours as follows: -
| Stage | Number of records | Time estimate |
| a. Whether it comes within the scope of the Request | 2,146 | 178.8 hours |
| b. Whether it constitutes or contains environmental information | 429 | 35.75 hours |
| c. Whether any exemptions apply | 215 | 35.75 hours |
| Scheduling records | Unknown | 5 hours estimated |
| Total hours | 255.3 hours |
(j) “That equates to one person working for 36.5 days on this review (based on 7 hours per day doing nothing else).”
(k) “It is undeniable that 36.5 days is a substantial amount of time for any business to devote exclusively to one task. This is especially true for public and semi-public entities with confined resources and a statutory mandate. I refer to the objects of Coillte pursuant to section 12 of the Forestry Act 1988 (as amended). Sub-sections 1(a) to 1(c) detail the foundational purposes of the company, including conducting forestry and related activities on a commercial basis and carrying on woodland activities, by way of example. However, sub-section 1(d) of section 12 requires Coillte “to utilise and manage the resources available to it in a manner consistent” with the objectives at sub-sections 1(a)-(c). Coillte submits that to comply with the terms of the Request as drafted would equate to a complete disregard for the company’s foundational purposes by diverting senior staff away from the ordinary focus of their work for substantial periods of time. This is manifestly unreasonable in the circumstances.”
(l) “I refer to Case OCE-104048-N2R9G9, in which the relevant public authority estimated that a review of the underlying documents would take approximately 97 uninterrupted hours of work by senior officers. This would equate to approximately 2.5 working weeks for the public authority, a significantly lower amount than in the present circumstances. In its consideration, the OCEI expressly acknowledged that the impact of a request on a particular public authority must be considered when adjudicating on Article 9(2)(a) of the AIE Regulations. In this case, the OCEI affirmed the decision of the public authority and found that the request was manifestly unreasonable.”
26. As set out above, Coillte provided significant detail regarding the timeframe and resources required, and the steps that would have to be followed in processing the request. As noted earlier, these submissions were substantively conveyed to the appellant for review and observations. In response, other than stating“[n]othing to add at this stage. Without a schedule we have no way to narrow the scope of the request” , it provided to this Office no substantive submissions in regard to the estimated amount of time required to process the request, or the work involved.
27. Having regard to the nature of the request, I am satisfied that the information sought is both voluminous and wide-ranging. The time frame of the request is also for a full 12 months encompassing the whole of 2015 and as such, at the date of this decision, refers to information which dates back 10 years or more. Although I cannot say categorically that had the appellant engaged in refining the request, it would have been made more manageable, this is almost certainly the case. However, the appellant made no effort to reduce the timeframe or limit it to particular categories.
28. Coillte has identified more than 2,100 documents that potentially fall within the scope of the request and has given detailed information in regard to the work that would be required to review those documents, ascertain how many fall to be considered environmental information and determine how many of these fall to be released or not released by virtue of any relevant AIE exempting provisions. It states that the time required to carry out these functions would interfere with its other core functions and would require the equivalent of no fewer than an estimated 36.5 days of work by one person devoted to the functions it has described as necessary, which it considers to be a substantial amount of time for any business to devote exclusively to one task. I am satisfied that Coillte’s time estimates for the various functions required to verify the relevance of each identified document to the request and to ascertain the releasability of each are sufficiently detailed to warrant credibility and that they indicate a requirement by Coillte to assign to the various tasks a person or persons familiar both with the subject matter of the material and the AIE access regime, particularly given the age of the material in question.
29. 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 that for a refusal under 9(2)(a) to be justified, it must be manifestly unreasonable, not just voluminous.
30. Article 9(2)(a) of the AIE Regulations is an acknowledgement of the fact that public authorities should not be required to undertake the processing of AIE requests where to do so would place an unreasonable burden on what are often limited resources. In contrast with a possible public perception that public authorities have unlimited resources not only to carry out their other statutory functions but also to engage with the AIE access regime, the reality arguably is that this is not the case. In the circumstances of this case and having regard to Coillte’s time estimates, which I find to be reasonable, and resources required, and the steps to be taken, I accept its contention that the processing of the request would place an unreasonable burden on it, involving disproportionate effort that would result in a significant interference with its other work I am satisfied that the result would be a particularly heavy administrative burden on Coillte. 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.
31. As noted above, 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. The appellant in this case sought access to information relating to the disposal of “telecoms masts” for incorporation into a new legal entity. While I note the appellant’s comment in other requests it has made to one or other public authority that information it seeks should or could be considered for routine publishing, no such statement or suggestion has been made in this case in respect of the information relating to the disposal of the masts. As the information in this case relates to a specific, standalone, project and is of a kind that would not, in my view, be considered for publishing as it comprises either communications or information relating to exchanges between parties to such a project rather than to core details of the project itself, I do not consider it to be the kind of environmental information that one would expect to be organised by Coillte in a manner that enables its easy dissemination under article 5 of the AIE Regulations, in particular, having regard to the type of information indicated at article 5(2) of the AIE Regulations.
32. 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 AIE Regulations and must put in place adequate resources to comply with those obligations.
33. Although I have found article 9(2)(a) of the AIE Regulations is engaged, that is not the end of the matter. It is necessary to weigh the public interest served by disclosure against the interest served by refusal as is required by articles 10(3) and (4) of the AIE Regulations.
34. In considering the public interest served by disclosure, it is important to be mindful of the purpose of the AIE regime, as reflected in Recital 1 of the Preamble to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment.” The AIE regime thereby recognises a very strong public interest in openness and transparency in relation to environmental decision-making.
35. The AIE regime also acknowledges that there may be exceptions to the general rule of disclosure of information, as noted in Recital 16 of the AIE Directive, which provides that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases”. One such case is where the request is manifestly unreasonable having regard to the volume or range of information sought. The public interest in maintaining the exception lies in ensuring that the processing of AIE requests does not cause an unreasonable interference and/or disruption of the work of a public authority.
36. As described above, it is not clear to me whether, prior to the submission of this appeal, there was engagement between the parties on the matter of reducing the scope of the request. In any event, Coillte’s openness to engage, expressed in its submissions to this Office and conveyed to the appellant, bore no fruit, the appellant expressing an inability to reformulate its request without a schedule of records. As I have established above, I am satisfied that a schedule of records is not a prerequisite to a reformulation of a request generally, nor particularly in this case. Coillte’s position on the public interest test in this appeal, provided in those submissions, was also conveyed to the appellant but elicited no response. As stated, I do not consider the information sought to be the kind of environmental information that one would expect to be organised by Coillte in a manner that enables its easy dissemination under article 5 of the AIE Regulations.
37. In its original decision Coillte set out its consideration of the public interest served by disclosure, determining that the right of the public to have access to information to ensure that Coillte’s activities and operations are open and transparent and the ability of the public to hold Coillte to account are factors in favour of“performing the review” (of the 2,146 documents potentially relevant to the request). Factors in favour of not performing the review were the need to ensure that Coillte’s activities as a commercial enterprise with a public mandate are not significantly interfered with and that, in consequence, Coillte employees are available to meet their duties; and the need to ensure that requests made under the AIE Regulations are, insofar as possible, targeted at environmental information.
38. Coillte expanded on its public interest considerations in both its internal review and submissions to this Office. In the former, it was “satisfied that the balance of public duties lies in favour of a refusal in this instance.” This was because Coillte was “cognisant of its competing obligations with regard to the public interest. There is no doubt that the public interest is served by the widest possible systematic availability and dissemination to the public of environmental information. Notwithstanding this, Coillte simultaneously serves the public through the effective, efficient and dedicated achievement of its many other functions, not least as regards the business of forestry and related activities.”
39. It added that the“extent to which [the] request would drain Coillte resources would significantly hinder Coillte’s ability to perform these core functions. The extent to which the public interest would suffer through such misdirection of resources, in this instance, far outweighs any damage to the public interest arising out of a refusal of [the] request.”
40. In its submissions, it stated that it“is acknowledged that there is an important general interest in the disclosure of environmental information in line with the AIE Regulations and the Directive. Coillte fully respects its obligations under Irish legislation and the foundational principles of the Aarhus Convention more generally. We have consistently shown our dedication to transparency and openness through our public access systems”. It went on to explain that “it must also be acknowledged that Coillte’s work in the ordinary course also fulfils a necessary public service, one that seeks to support the pressing environmental concern of sustainable forestry, and one that is mandated by statute.”
41. It went on to state that“[a]greeing to the Request would significantly reduce the company’s [Coillte’s] ability to conduct its duties under the Forestry Act 1988 by diverting the attention of senior employees for over a month. It is Coillte’s position that the public interest balance falls decidedly in favour of refusing the Request and guaranteeing continued delivery of Coillte’s public offering, which affects the public at large, as Ireland’s largest forest manager and largest provider of outdoor recreation. In contrast, making the underlying information available to the [requester] actively hinders the supply of environmental information to other members of the public by restricting Coillte’s ability to process other requests under the AIE Regulations. The public interest served by refusal must outweigh that of disclosure.”
42. Coillte has also made the point that, while the public has a right to access information on the workings of public bodies and accountability of decision making, in this case“the arguments against review (and thus release) far outweigh those in favour. Review of the information that may be captured by the Request would result in Coillte’s normal activities being significantly impaired and would likely recall many documents not susceptible to disclosure under the AIE Regulations and / or not related to the apparent target of the Request, namely documents relating to the Telecoms Transaction.”
43. Coillte submits that it would take a senior officer approximately 37 days, or not far short of two working months (on the basis of 20 working days per month), to process the appellant’s request, diverting them away from other key functions. For these reason, 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 the carrying out of its statutory obligations.
44. In my view, there is a public interest in ensuring the proper administration of public authorities and ensuring that the administrative burden placed on them by virtue of the AIE Regulations is not unduly onerous or is such as could negatively affect their day-to-day administration or operations. I am also of the view that there is a very strong public interest in giving public authorities the space to carry out their statutory functions. This is even more so when the public authority is a commercial semi-state, such as Coillte. which has a mandate to operate on a commercial basis and generate profit, which results in dividends being paid to the Exchequer. Additionally, there is a public interest in ensuring good corporate governance of public authorities and imposing a burden on a public authority in answering an AIE request of significant volume, which has the effect of diverting a senior member of staff from key duties on matters of strategic importance, regulation and governance, is not ultimately in the interests of the public.
45. A further factor to be taken into account in assessing the public interest, is that an effort was made by Coillte to try to reduce the administrative burden entailed in answering the request in this case by inviting engagement with the appellant, an effort that ultimately failed due to non-cooperation on the part of the appellant.
46. 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 a senior manager devote a not inconsequential number of weeks to this work, the resulting significant interference with the normal course of Coillte’s activities, impacting negatively on the work it is required to carry out under statutory obligation, I accept Coillte’s submissions relating to the public interest weighing in favour of refusal.
47. 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.
48. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the decision of Coillte.
49. 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