Decision
Right to Know CLG and Coillte Teoranta
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-139242-N9Y7R7
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-139242-N9Y7R7
Published on
Whether Coillte was justified in refusing the request under article 9(2)(a) of the AIE Regulations
1. This case relates to a request for information, made on 11 April 2023, textually as follows:
Under the AIE Regs to request the following in relation to meetings of the Coillte Board for the Years 2020, 2021, 2022 and 2023 YTD [year to date]
1) Agenda/minutes of the Board
2) Copies of presentations, analysis, reports or other written records provided to the Board in relation to Board meeting agendas (i.e. where records are noted in agenda/minutes, please consider these records within scope of the AIE)
For the purposes of this AIE, please consider active disclosure, via publication on Coillte website or gov.ie
2. On 20 April 2023, Coillte wrote to the appellant seeking that it“be more specific in terms of the records you are seeking. This would bring some clarity as to what information is being sought and expedite consideration of the records under scope in your request.” This was in the context of Coillte having identified a preliminary requirement of“trawling through a substantial number of records, numbering 750 to 800 documents, to gather all information relevant” and a corollary time commitment to do so of“a minimum of 62.5 hours work, equating to at least 8 full-time workdays (on the basis of 7.5-hour workdays)”. The letter also advised the appellant that if it declined to refine the request “as currently worded [it] falls to be refused under Article 9(2)(a) of the AIE Regulations on the grounds that, having regard to the volume and range of the information sought, it is manifestly unreasonable.”
3. On the next day, 21 April 2023, the appellant responded to Coillte’s request, stating that it did “not agree that the request falls under Article 9(2)(a) of the AIE Regulations” and that“Coillte has been established 34 years, the request has been limited to just recent records (from 2020)”.
4. On 10 May 2023, Coillte issued its first instance decision, refusing the request under article 9(2)(a) of the AIE Regulations, as it considered the request to be manifestly unreasonable, arising from its being“extraordinarily broad” and the search and collation of relevant records being deemed to place an“unreasonable demand on Coillte’s resources” and disrupting“its ability to perform its core functions.” The decision added that, even if it had availed of the extension of one further month within which to respond to the request, provided by article 7(2)(b) of the AIE Regulations, due to the volume or complexity of the environmental information requested, Coillte remained of the view that the request was voluminous and was therefore manifestly unreasonable.
5. On 11 May 2023, the appellant submitted an internal review request with Coillte.
6. On 7 June 2023, Coillte issued its internal review decision, affirming the decision of the first instance decision-maker, on the same ground and for the same reasons.
7. On the same day, the appellant submitted an appeal to this Office.
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 BnM 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 concerned with whether Coillte was justified in refusing access to the information requested on the basis that the request was manifestly unreasonable.
11. 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 [article 9(2)(a)], if the request is too general [article 9(2)(b)] 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 authority’s reliance on or an immediate basis for refusal under articles 9(2)(a) of the AIE Regulations. In this particular case, and as noted above, Coillte relied in its decision letters on article 9(2)(a) to refuse the information requested. I am satisfied, as noted below, that Coillte invited the appellant to make a more specific request and offered assistance in this endeavour, an invitation which elicited no positive response from the appellant.
12. Within 10 days of receipt of the request in this case, Coillte corresponded with the appellant with a view to requesting a reformulation of the request, owing to its identification of between 750 and 800 records that would require a“trawling through” in order“to gather all information relevant” to the request. As stated above, it indicated that a preliminary review of these records would require a minimum of 62.5 hours of work, equating to at least 8 full-time workdays on the basis of 7.5-hour workdays, work which would have to be carried out by a senior member of Coillte staff arising from the“highly confidential nature of Board documents”. These estimates did not include further time required in order to consider redactions and/or the application of exempting provisions, work which Coillte estimated would require 20 minutes per record. According to Coillte, this endeavour would“place an unreasonable demand on Coillte’s resources and/or would disrupt its ability to perform its core functions” and that the request, as originally worded and“having regard to the volume and range of the information sought, … is manifestly unreasonable.” Coillte requested that the appellant be more specific in respect of the records it was seeking in order“to bring some clarity as to what information is being sought and expedite consideration of the records under scope in your request” , inviting it“to narrow the range of information requested.” It advised that, failing such a refinement, the request would be refused under article 9(2)(a). Coillte’s openness to engagement and request for a refinement of the request elicited no positive response from the appellant, which asserted its disagreement that its request fell to be refused under article 9(2)(a), noting that“Coillte has been established 34 years, the request has been limited to just recent records (from 2020)”. From this correspondence, I am satisfied that Coillte has discharged its duty to seek a narrowing of a request that it considers to be manifestly unreasonable and to offer assistance in this endeavour, in order to be able to respond to the request. However, as the reformulation of a request requires collaboration on the part of an appellant, I consider that greater willingness on the part of the appellant in this case to reformulate its request such as to reduce the potential number of records in scope would have been fruitful, and would likely have allowed the appellant to receive some of the information originally sought.
13. 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.
14. 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.
15. 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).
16. 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).
17. 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.
18. 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.
19. This position is supported by recent comments from Advocate General Medina in his opinion on BnM 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).
20. 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.
21. 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 and the time and resources that would have to be deployed in order to respond to the request.
22. The appellant was twice invited to make submissions to this Office, but declined to do so, responding to the second invitation by saying that it had“nothing to add”.
23. In its internal review decision, Coillte noted identification of in the region of 750 to 800 documents as falling within the scope of the request, spanning a 3.5-year time period. It explained that a relevant staff member had completed a high-level overview of the files and records within the scope of the request, the decision-maker concluding that the workload required to respond to the request comprised a two-step process, as follows:
1. Search, identification, retrieval, validation, and collation of up to 750-800 documents; and
2. A further review of these documents for confidential information to be made subject to redactions (with follow redaction exercises most likely required in the vast majority of cases)
24. The decision-maker was satisfied that this two-step process could only be carried out by a very senior staff member because of the confidential and commercially sensitive nature of the documents. She noted that for one such key member of staff to redirect their attention and time to one AIE request and to decide properly within the one-month prescribed timeframe“would dramatically overwhelm their ability to conduct the full extent of their duties to Coillte, to the point of practical impossibility. It would result in the abandonment of other key Coillte objectives, including its commercial activities, as set out in the Forestry Act 1988.” Coillte’s submissions to this Office added that, even with the one-month extension available to process a request under article 7(2)(b) of the AIE Regulations, it“was not feasible” to respond to the request“given the scope of the underlying documents.”
25. The decision-maker went on to note that the AIE Regulations and the ACCC acknowledge 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 and that the legislation permits a public authority to refuse access in such cases in order to ensure its proper functioning.
26. The decision-maker concluded by saying that, due to the nature of the request, the overall time it would take to comply with it and the staffing resource required would“impose a particularly heavy burden on Coillte” and that this“would unreasonably and disproportionately divert it from, and disrupt it in performing, its core functions, to the point of practical impossibility” , a situation which rendered the request manifestly unreasonable and refused on this basis. The decision noted Coillte’s attempt to seek a refinement of the request and that the appellant’s failure to engage had led to a failure by Coillte to bring the request in scope of its resource constraints and frustrated its commitment to provide information as far as reasonably practicable. The decision elaborated on Coillte’s application of the public interest balancing test encapsulated in articles 10(3) and 10(4) of the AIE Regulations, a matter which shall be discussed further below.
27. It is appropriate to review the detail that Coillte gives in its original decision regarding the time and work it estimated would be required in order to respond to the request within the initial one-month time period and the extended further time period of an extra month provided by article 7(2)(b) of the AIE Regulations.
1. It estimates that a Step 1 review of the documents in scope of the request would require 5 minutes to review each one for the purpose of determining if it contains environmental information within the definition of the AIE Regulations and would have to be completed by a very senior staff member, either a member of its Operating Executive or its Company Secretary due to the highly confidential nature of Coillte Board documents and could not be dealt with internally by administrative staff or outsourced externally.
2. Step 2 would entail consideration of the appropriateness of redactions and/or exemptions under the AIE Regulations that apply on a document-by-document basis, work which Coillte estimates would take 20 minutes per document. It states that this step would also have to be completed by a very senior staff as indicated above due to the highly confidential nature of Coillte Board documents and could not be dealt with internally by administrative staff or outsourced externally.
3. Coillte outlined two estimates of the total time it would take to process the request, based on the percentage of documents which may require assessment under both steps 1 and 2, as follows:
4. With an estimate of 750 documents, of which 75% are found to contain environmental information, the total time would be: -
Step 1
750 documents x 5 minutes = 62.5 hours
62.5 hours / 7.5 hour work days = 8.33 workdays
Step 2
750 documents x 75% x 20 minutes = 187.5 hours
187.5 hours / 7.5 hour work days = 25 workdays
Total time overall estimated at 33.33 work days
5. With an estimate of 750 documents, of which 50% are found to contain environmental information, the total time would be: -
Step 1
750 documents x 5 minutes = 62.5 hours
62.5 hours / 7.5 hour work days = 8.33 workdays
Step 2
750 documents x 50% x 20 minutes = 125 hours
125 hours / 7.5 hour workdays = 16.65 workdays
Total time overall estimated at 25 work days
28. In conclusion, Coillte estimates that it would take one senior staff member, either a member of its Operating Executive or its Company Secretary, eight days to review the 750-800 documents to gather all the relevant information (step one), and a further senior staff member between 16.65 and 25 working days to review the documents for confidential information in order to apply redactions and any applicable exemptions in accordance with the AIE Regulations (step 2). Coillte considers the timeframes involved would impose a particularly heavy burden on it and unreasonably and disproportionately divert it from, and disrupt it in performing its core functions, including its commercial activities. It considers that the work required to be carried out to comply with the request is voluminous even over a two-month period. Finally, in separate correspondence with this Office, Coillte confirmed that a total of 35 board meetings had taken place within the time span specified in the request, that is, 11 per year for each of 2020, 2021 and 2022 and three in 2023 to the date of the request.
29. For the reasons given in the foregoing paragraphs, Coillte is of the view that the request“is manifestly unreasonable having regard to the volume and range of information sought by reference to Article 9(2)(a) of the AIE Regulations.”
30. Whilst Coillte’s submissions to this Office essentially replicate the grounds and reasons for refusal of the information expressed in its original and internal decision letters to the appellant, it elaborated on certain specific points. It stated that (up to) 33 days is a substantial amount of time for any business to devote exclusively to one task, especially for public and semi-public entities“with confined resources and a statutory mandate” referring to the objects of Coillte pursuant to section 12 of the Forestry Act 1988, as amended, particularly to sub-sections 1(a) to 1(c) which“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.”
31. In support of its position that the impact of a request on a particular public authority must be considered when adjudicating on the application of article 9(2)(a), it cited a previous decision of the Commissioner, appeal OCE-104048-N2R9G9 where he accepted that 97 hours of uninterrupted work by senior officials would negatively impact the other work of the public authority and found the request to be manifestly unreasonable. Coillte notes also that in that case the appellant had made an attempt to refine his request, a situation which“stands in stark contrast to the present circumstances, in which the Applicant made no attempt to narrow, refine or elaborate on the Request, other than to provide a reason for which [it] felt the Request was reasonable” in spite of Coillte having“warned the Applicant that failure to refine the Request as worded would result in a refusal under Article 9(2)(a)” . Coillte submits that this refusal to engage is manifestly unreasonable.
32. Finally, Coillte elaborates in its submissions on the effect that responding to the request would have on its commercial operations and on its AIE responsibilities. It states that in“combining both an extended period of time and wide range of documents, the Request is excessively burdensome on Coillte and risks undermining the process guaranteed by the AIE Regulations. This is because Coillte would not be able to provide the information within the one month period for disclosure, save in circumstances where it severely reduced its own commercial capabilities and delayed processing all other requests under the AIE Regulations. In order for Coillte to fulfil its obligations to supply information that is ‘comprehensible, accurate and comparable’ according to the [AIE] Directive, I submit that a more specific request for environmental information is required from the Applicant.”
33. 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, both in its decision letters to the appellant and in submissions to this Office. As noted earlier, the appellant was invited to make submissions but declined to do so.
34. 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 spans not far short of three and a half years and the request seeks information that dates as far back as January 2020.
35. Coillte has identified between 750 and 800 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 between 25 and 33 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 broadly 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 of such seniority within the organisation that is capable of carrying out the review of the records and the application of any exempting AIE provisions.
36. It is my understanding that, as between the step 1 and step 2 reviews of the records that Coillte state are required, the step 1 review is merely to identify if a record falls to be considered “environmental information” at first instance, and the step 2 review entails determining, in respect of those records that have passed the step 1 process in the sense that a decision has been made that, either in part or in their entirety, they constitute environmental information, whether it is appropriate to apply exemptions from release to them and to subject them to the public interest balancing test of article 10(3) of the AIE Regulations. I am satisfied that each record requires to be examined in order that a determination be made as to the appropriateness of the application to it of any exempting provision and the public interest balancing test.
37. I have had 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.
38. 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 the 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 is that this is not the case and they have a budget within which to contain expenditure. In the circumstances of this case and having regard to Coillte’s time estimates, which I find not to be unreasonable, 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.
39. 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 consisting of Coillte board agendas and minutes and associated documentation to be discussed or presented at those meetings. I note the appellant’s comment in its request to Coillte that Coillte should“consider active disclosure, via publication on Coillte website or gov.ie ”. Whilst I accept that it is open to Coillte to publish all or some of the information the subject of this appeal, I acknowledge also that Coillte is a semi-state corporation involved in commercial enterprises in competition with other commercial entities and that the publication of material such as board agendas, minutes and associated material relating to its activities may include matters of a commercially sensitive nature that it is not appropriate to divulge to the world at large generally and to the benefit of its competitors particularly. I do not consider that commercially confidential information 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. However, that is a matter for Coillte itself to consider.
40. 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.
41. Coillte relied in its submissions to this Office on the additional ground of article 9(2)(b) in order to refuse the request. This article allows a public authority to refuse to make environmental information available where the request“remains formulated in too general a manner, taking into account article 7(8)". This latter article requires a public authority that deems a request to have been formulated in too general a manner“to invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request.” I note that Coillte in this case did invite the appellant to reformulate the request and offered assistance in that endeavour despite its not having yet relied on this provision. However, as I am satisfied that Coillte has demonstrated that the request is ‘manifestly unreasonable’ within the meaning of this term in article 9(2)(a), there is no requirement for me to go on to assess the applicability of article 9(2)(b) to the request in this case.
42. 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.
43. 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.
44. 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.
45. As described above, Coillte’s attempted engagement with the appellant on the matter of reducing the scope of the request bore no fruit. Coillte’s position on the public interest test in this appeal, provided in its decision letters to the appellant and in submissions to this Office, elicited no response from the appellant. 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.
46. In its internal review decision, while acknowledging that“the public interest is served by the widest possible systematic availability and dissemination to the public of environmental information” , Coillte sets out its view that“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.”
47. It further stated that“[t]he 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.”
48. In considering the factors at play in weighing up the public interest in release of information against its non-disclosure, Coillte in its submissions to this Office acknowledged the important general interest in the disclosure of environmental information in line with the AIE Regulations and the Directive, setting out that it fully respects its obligations under Irish legislation and the foundational principles of the Aarhus Convention which it has demonstrated by its dedication to transparency and openness through its public access systems, for example, “BAU Plans, Public MapViewer and our website.” It goes on to explain that, apart from its obligations under the AIE regime, it is also mandated by statute to fulfil a necessary public service in supporting “the pressing environmental concern of sustainable forestry”, and that its responding to the request would “significantly reduce the company’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”. Its responding to the request, it continues, “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.”
49. As set out above, Coillte submits that it would take a senior officer anywhere between 25 and 33 work days, or between five and more than six weeks, to conduct Step 1 and Step 2 reviews of the 750-800 documents it has identified as relevant to the request, allowing“at least 5 minutes per document” in Step 1 to review each record“for the purpose of determining if it contains environmental information within the definition of the AIE Regulations” and an estimated 20 minutes per document in Step 2 to consider“the appropriateness of redactions and/or exemptions under the AIE Regulations that apply on a document-by-document basis” . Both exercises, it states, would require the involvement of “a very senior staff member, being either a member of our Operating Executive or our Company Secretary, due to the highly confidential nature of the [Executive] Board documents.” Given that many of the records at issue may in fact, on their face, constitute environmental information, I am of the view that the hours required for a Step 1 review may be fewer than the estimates made by Coillte. However, even should they turn out to be fewer, in combination with the hours required to be expended in Coillte’s Step 2 review, I am satisfied that the total time required for review and to carry out the other steps indicated by Coillte to respond to the request to be considerable.
50. In my view, there is an 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 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 and to provide income to the Exchequer in the form of dividends. Additionally, there is an interest in ensuring good corporate governance of public authorities, in consequence of which the imposition of a burden on a public authority to answer an AIE request of significant volume, which has the effect of diverting a senior member or members of staff from key duties on matters of strategic importance, regulation and governance, is not ultimately in the interests of the public. Finally, as pointed to by Coillte in its submissions, I am satisfied that there is a further public interest in not allowing a public authority to be hindered in its ability to respond to other AIE requests by reason of a manifestly unreasonable request due to the volume or range of information sought, as in this case.
51. A further factor to be considered in assessing the public interest is that an effort was made by Coillte to reduce the administrative burden entailed in answering the request in this case by seeking for it to be narrowed, an effort that ultimately failed due to non-cooperation on the part of the appellant.
52. In all the circumstances, having regard to the nature of the request, the period of time to which it relates, the resources and the work required to attend to the request, particularly the requirement that senior managers devote a consequential number of weeks to this work, the significant interference with the normal course of Coillte’s activities and the work it is required to carry out under statutory obligation, I consider that the interest in refusal outweighs the public interest in release in this case.
53. 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.
54. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the decision of Coillte.
55. 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