Decision
Mr. X and The Department of Agriculture, Food and the Marine (the Department)
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-143815-L3G7W4
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-143815-L3G7W4
Published on
Whether the Department was justified in refusing access to the information sought by the appellant relating to Coillte felling licence applications on the basis that it is not held by it
13 January 2026
1. On 16 October 2023, the appellant submitted a request to the Department, as follows:
“I wish to request under the Access to Information on the Environment Regulations, in electronic format;
With reference to Article 6 (6) of the Aarhus Convention, the information requested is:
1) For each of the 328 Coillte Felling Licence application published on 13-10-23 information relating to those licences to include inter alia;
• An estimate of the expected residues and emissions (including carbon loss from soils);
• A description of the significant effects of the proposed activity on the environment;
• A description of the measures envisaged to prevent and/or reduce the effects;
• An outline of the main alternatives studied by the applicant.
As these applications are subject to public consultation I request that the information is provided in an electronic format by 27-10-23 In the absence of this information the application cannot be considered to be complete.”
2. On 6 November 2023, the Department issued its original decision. The Department refused the appellant’s request on the basis that it was unable to locate any relevant records.
3. On 7 November 2023, the appellant sought an internal review of the Department’s decision. Also on 7 November 2023, the Department issued its internal review decision, affirming its original decision to refuse the appellant’s request.
4. On 13 November 2023, the appellant submitted an appeal to this Office.
5. I am directed by the Commissioner to undertake a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the correspondence between the Department and the appellant, as outlined above, and to correspondence between this Office and both the Department and the appellant. 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)
6. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
7. 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. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
8. In his statement of appeal to this Office, the appellant stated that the Department did not have regard to the timescale he had identified in his original request, however I note that the appellant did not raise this in his request for internal review, which referred to the information not received. It is important to note, in cases such as this, the scope of the review by this is confined to that which was at issue at internal review and, while it can be narrowed further, it cannot be expanded.
9. Having examined the Department’s decisions, I note that it did not explicitly refer to the provision(s) of the AIE Regulations being relied upon to refuse the appellant’s request. However, in light of the wording of those decisions, I am satisfied that it is refusing the appellant’s request under article 7(5).
10. In the circumstances of this case, I am satisfied that the scope of this review concerns whether the Department was justified in refusing access to the information sought by the appellant under article 7(5) of the AIE Regulations on the basis that it is not held by the Department.
11. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request, subject only to the provisions of the AIE Regulations.
12. 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.
13. The appellant is seeking access to particular information relating to Coillte felling licence applications. In its original decision, the Department stated that it was unable to locate any relevant records. The Department stated “a search of the electronic databases and records held both on mainframe computers and individual staff computers ” was carried out. It also indicated that relevant staff members had been consulted.
14. In his internal review request, the appellant submitted “the information requested is required to be provided by an applicant as part of the public participation provisions of under the Aarhus Convention. Confirmation of this decision at internal review would represent a breach of the law by Coillte in submitting and by DAFM in accepting and publishing for consultation applications that have failed to comply with the Convention .”
15. As noted, in its internal review decision, the Department affirmed its original decision to refuse the appellant’s request. It stated:
“It should be noted that this decision does not, in any manner, confirm your suggestion that Coillte have breached the law, it is also worth noting that DAFM have given due regard to mitigating greenhouse gas emissions. The sustainable management of Irelands forests and woodlands is an important mechanism for reducing atmospheric greenhouse gas (GHG) concentrations. Forests constitute a substantial stock of carbon (C) in the trees, other vegetation and in soils. The sustainable management of Ireland’s forest estate is an important influence on C sequestration, C stocks and can be an important mitigation tool in reducing emissions. Moreover wood, and other forest products contribute to the mitigation of climate change through the displacement of fossil 2 fuels and the substitution of a wide range of synthetic materials derived from oil (e.g. cement and steel) in the built environment.
Government policy in Ireland is tasked with developing forestry and related industry in a manner that is in keeping with the principles of sustainable forest management (SFM) and the protection of the environment. SFM and, in particular a robust reforestation policy, are vital for Ireland in order to increase the national forest area. This policy in relation to tree felling and reforestation has been influenced by various factors. Due to the extent of deforestation by the early 20th Century, legislation was introduced to regulate tree felling. Legislation and policy has promoted reforestation following felling (or the planting of alternative land) in all but the most exceptional cases. In addition to this, legally-binding international environmental agreements and ‘carbon accounting’ (e.g. the United Nations Convention on Climate Change) have also necessitated a policy that in general requires reforestation to replace trees felled.”
16. In his statement of appeal to this Office, which was provided to the Department during the course of this review, the appellant stated:
“Article 6(6) of the Aarhus Convention requires that; ‘6. Each Party shall require the competent public authorities to give the public concerned access for examination, upon request where so required under national law, free of charge and as soon as it becomes available, to all information relevant to the decision-making referred to in this article that is available at the time of the public participation procedure, without prejudice to the right of Parties to refuse to disclose certain information in accordance with article 4, paragraphs 3 and 4. The relevant information shall include at least, and without prejudice to the provisions of article 4:
(a) A description of the site and the physical and technical characteristics of the proposed activity, including an estimate of the expected residues and emissions;
(b) A description of the significant effects of the proposed activity on the environment;
(c) A description of the measures envisaged to prevent and/or reduce the effects, including emissions;
(d) A non-technical summary of the above;
(e) An outline of the main alternatives studied by the applicant"
17. He submitted “[t]his information is necessary to the application and should be available during a public participation process .” The appellant also disputed that adequate searches had been carried out.
18. In its submissions to this Office, the Department explained that two subject matter experts (SMEs) “with understanding and intimate knowledge of the area were requested for records. Both SMEs returned replies that no records exist .” The Department indicated that the information is not held by it. It explained that “the records/ information requested is not required from Coillte in relation to their felling licence applications ”.
19. I wish to emphasise that it is outside the remit of this Office to adjudicate on how public authorities carry out their functions generally, including with respect to their environmental information management practices. I have no role in assessing how public authorities collect, maintain and disseminate environmental information. My role concerns reviewing appeals of requests for access to environmental information within the scope of the request, which is held by or for the relevant public authority and no more than that. If the information sought is not held by or for the public authority then that is the end of the matter, regardless of whether or not the requester believes that the information ought to exist based on his or her views as to what constitutes good administrative practice.
20. In all the circumstances and having considered the Department’s explanations, I am satisfied that the Department was justified in refusing access the information sought under article 7(5) of the AIE Regulations on the ground that it is not held by the Department.
21. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm the Department’s decision to refuse access to the information sought by the appellant relating to Coillte felling licence applications under article 7(5) of the AIE Regulations.
22. 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.
______________________
Gemma Farrell on behalf of the
Commissioner for Environmental Information