Decision
Mr. X and Coillte
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153917-V9T5P9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153917-V9T5P9
Published on
The Commissioner found that Coillte was not justified in refusing access to information under article 7(5) or redacting details of Coillte staff and a freelance ecologist under articles 3(1) and 8(a)(i). The Commissioner found that Coillte was justified in redacting the location of a Hen Harrier nesting site under article 8(a)(iii).
30 January 2026
1. On 16 August 2024, the appellant requested;
“Information on reports received by Coillte of Hen Harrier or Merlin during the period of breeding and rearing from various 3rd parties of potential new nest locations and sightings outside red areas.
(These notifications may have been communicated directly to staff or contractors during operations, possibly with a request to cease operations).
I appreciate that this request in its entirety would include information which falls to be refused under Article 8(a)(iii).
I do not wish to receive environmentally sensitive information, or personal information. I am requesting that Coillte applies Article 10(5) to this request to separate out information which can be released from that where refusal is justified.
Information could include such details as the date of the report, the general area concerned and any other information which does not disclose a nesting location.
I would like the request to cover the period from 2020 to date.
I presume that any such reports would be passed to the ecology section which would act as a central repository for information relevant to this request.
Please interpret this request broadly.
Please provide a schedule of records with your decision.”
2. On 9 September 2024, Coillte corresponded with the appellant and sought to refine the request. On the same date the appellant responded to Coillte and stated;
“Coillte Forest Birds Report July 2024 states
"In addition, Coillte has often received mid-season reports from various 3rd parties of potential new nest locations and sightings outside red areas. These notifications are often communicated directly to staff or contractors during operations, with a request to cease operations but without specific information on where the bird was sighted."
I must presume that Coillte has a procedure for dealing with such Reports in order to ensure that Hen Harrier are protected. What is this procedure? It should permit the AIE team to refine their approach to dealing with this request”.
3. On 13 October 2024, Coillte contacted the appellant and stated;
“Your AIE Request as currently worded does not include a particular timeline that could be applied when carrying out searches for information. Further, and as clearly set out in our letter to you dated 09th September, the request does not identify a particular geographical area that can be referred to by assigned staff. Therefore, we would again ask that you consider submitting a refined request as set out previously”.
On the same date the appellant responded;
“Since the Coillte Report does not indicate a timeline or a particular geographic area I consider that it is unreasonable for you to expect me to specify these details. The author/s of the Report need to be contacted to determine what evidence base they relied on in making their comment. I suggest that the person responsible for the comment are the start point in handling this request. You have not provided any basis that makes me consider that it would be reasonable for me to refine my request”.
4. On 13 September 2024, Coillte informed the appellant they were extending the timeframe for dealing with the AIE request under article 7(2)(b).
5. On 16 October 2024, Coillte informed the appellant the request was refused under article 7(5) of the AIE regulations as Coillte had been “unable to locate any records relevant having taken all reasonable steps to locate the information sought”. On the same date the appellant requested an internal review of Coillte’s decision.
6. On 15 November 2024, Coillte issued its internal review decision. In doing so it varied the original decision and provided the appellant with 3 records.
7. On 26 November 2024, the appellant appealed to my Office.
8. 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 submissions made by the appellant and Coillte. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. I note from Coillte’s submissions the requested information in this case“relates to a measure that is likely to affect the environment within the meaning of Article 3(1)(c) of the AIE Regulations being the notification to Coillte of hen harrier and merlin sightings and nest locations”. However, Coillte submit “the details of the external freelance ecologists and Coillte staff are entirely incidental to notification of hen harrier nesting location and the environmental information recorded in the email”.
11. This position has been submitted by Coillte in previous appeals and the Commissioner has adjudicated in published decision OCE-161017-J5W7L2 , which is available on our website, www.ocei.ie www.ocei.ie, that staff names in a record otherwise accepted to contain environmental information, is information considered to meet the definition of article 3(1) and cannot be redacted, in cases where no other exemption is successfully applied.
12. Accordingly, as the environmental nature of the records is not under question here, I find that the information pertaining to staff names is environmental information under 3(1) of the Regulations.
13. Additionally, two of the records released to the appellant in response to his request consist of emails from the appellant to Coillte in relation to Hen Harrier nesting locations. The appellant notes his own personal information including name and email address has not been redacted in these records. As Coillte has already released this information to the appellant, and is not seeking to rely on any exemption within the Regulations to withhold his information, I consider the appellant’s dissatisfaction with the release of this content (his name and address) in response to his request for information to be beyond the scope of this appeal.
14. 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.
15. This appeal is concerned with whether Coillte was justified in refusing access to information requested under article 7(5) of the AIE Regulations and, whether it was entitled to redact information relating to staff members and external contractors within the records it released to the appellant on the basis of article 3(1) and article 8(a)(i). This appeal will also examine of Coillte was justified in redacting a location relating to a Hen Harrier nesting site under article 8(a)(iii).
16. In this case, the appellant contends that Coillte should hold further information relevant to his request. Article 7(5) of the AIE Regulations is the relevant provision to consider, where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned. It provides as follows;
“Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it.”
17. What will be considered reasonable will vary from case to case, but as a general guide, I set out below the type of information that my Office would generally expect to be set out in a decision where a public authority is relying on article 7(5) of the Regulations;
I. an outline of exactly which areas/units etc. of the organisation were searched for the information.
II. an explanation of how searches were carried out (i.e. manually, by computer, by name, by key words). Keywords should be recorded and provided in the decision as appropriate.
III. details of the individuals consulted in connection with the search.
IV. a description of the searches carried out to cover the possibility of misfiled/misplaced records.
V. details of guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of information requested in this case.
VI. the basis on which the public authority has concluded that it does not hold any information within the scope of the appellant’s request and that no such information is held by any other person or body on its behalf.
18. This Office’s approach to dealing with this type of case is to assess whether 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 is applied. What will be considered reasonable will vary from case to case.
19. The appellant submits,“I am not assured that all information falling within the scope of my request has been identified. Coillte have failed to demonstrate that all reasonable steps have been taken to identify the full suite of records covered by my request”.
20. Coillte have stated at internal review stage“a broader interpretation of the Request was adopted which caused the IR Decision maker to approach the subject matter experts, Coillte’s Wildlife Ecology Lead and the Team Lead from each of the 6 BAUs to carry out further searches on a broader basis and not confining same to notifications from NPWS. These searches identified the three records provided to the Appellant.”
21. The appellant has confirmed the basis of his request was a Coillte report which stated
“Coillte has often received mid-season reports from various 3rd parties of potential new nest locations and sightings outside red areas. These notifications are often communicated directly to staff or contractors during operations, with a request to cease operations but without specific information on where the bird was sighted.”
The appellant submits the use of ‘often’ would indicate more than 3 records exist.
22. Coillte submits the report referenced by the appellant also states,“This approach can be ad hoc”, and notes “there may not be a record of some reports to Coillte of nest locations as the process is not streamlined”._
23. In a submission to this Office the appellant identified a record he had obtained in a separate AIE request, which was an email from the National Parks and Wildlife Service (NPWS) to Coillte with a subject header of“Felling Activity - Active Hen Harrier nest – Doolough” . The appellant queried why this record had not been identified by Coillte. Coillte submits;
“The appellant refers to an email issued by the NPWS to Coillte’s BAU 2 Leader on 16 July 2021 with the subject “Felling Activity - Active Hen Harrier nest – Doolough”. The email was located by Coillte and deemed outside the scope of the Request as the record is not a report of a Hen Harrier sighting. The email, which is referred to by the appellant, is a follow-up email which issued after a sighting had been reported”.
24. While Coillte submit the identified email is outside the scope of the request as it is a follow up to a report, I note the original report itself has not been identified or provided to the appellant. Of the 3 records provided to the appellant none relate to ‘Doolough’. The appellant had sought“Information on reports received by Coillte of Hen Harrier or Merlin…” from 2020 and I hold the view the follow up email is information on relevant reports and does fall within the scope of the request.
25. Coillte have submitted,“In granting an AIE request and providing environmental information to a requester there is no obligation under the AIE Regulations to provide details of the searches carried out by the public authority leading to the identification of environmental information relevant to a request” . However, I note that in circumstances such as this, where an appellant maintains that further information exists or is held by a public authority in relation to their request, article 7(5) of the AIE Regulations is the relevant provision to consider and it is incumbent on the public authority to demonstrate that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances.
26. I would remind Coillte that there is a duty under article 7(4)(c) to“specify the reasons for the refusal”. In the absence of sufficient detail on the searches undertaken by Coillte and the identification of a record by the appellant that was not provided, I find that Coillte did not take all reasonable steps to identify and locate the requested information relevant to the appellant’s request on this occasion.
27. Coillte submits“the redacted information is not information ‘on’ the notifications and therefore is not environmental information within the meaning of those Regulations. This is because the names of the freelance ecologists and Coillte staff are entirely incidental to the notification. That information is not integral to the environmental information contained in the email. Accordingly, Coillte refuses access to the redacted information on the basis that it is not environmental. The appellant maintains“the reporter and the party reported to are intrinsic to the report”.
28. With respect to the position contended by Coillte that the redacted information enjoys the protection of article 8(a)(i) this issue too has been considered and adjudicated in decision OCE-161017-J5W7L2 . In my view the analysis concerning GDPR in that decision at paragraphs 46 to 66 is applicable also to this case. I am satisfied that the information is ‘personal information’, that the requester has a ‘legitimate interest’ in receiving the data pursuant to the request and that its disclosure is necessary to meet that interest. Whilst Coillte have not confirmed if consent was given by the data subjects to disclose the information, I can reasonably assume that it has not been given. I am also satisfied that the personal information at issue in this case does not fall under any of the special categories of personal data meriting higher protection.
29. It is necessary therefore to next consider the public interest balancing test, as noted in OCE-161017-J5W7L2 (paragraph 70) although as a matter of principle a public authority must carry out the balancing exercise in Article 6(1)(f) first and again (if needed) under article 10(3) of the AIE Regulations, in practice it is unnecessary for me to go through the exercise twice because in this decision as the analysis is the same.
30. In this case Coillte have failed to detail its public interest balancing test, obliged under article 10(3) and 10(4) of the Regulations in either its original or internal review decision, with respect to 8(a)(i). It has also failed to detail the adverse impact of disclosure of this information.
31. I have considered broadly the individual data subjects’ interest in the protection of their personal data, taking into account the nature of the specific personal data at issue and the data subject’s rights under Articles 7 and 8 of The Charter of Fundamental Rights of the European Union. I have considered the nature of the information is question, namely the name of the freelance ecologist and Coillte staff names and email addresses as well as a phone number for the freelance ecologist. I consider this to be at the less sensitive end of the scale of personal information, given that such information is often freely made available by data subjects on the internet and elsewhere. In noting the specific information at issue here however [names, email addresses and phone number], I am of the view that the mobile number of the freelance ecologist should be considered separately to the staff members name and details of their employment. An internal phone number or mobile number is generally not intended for use by the public in contacting members of a public authority, as public authorities generally provide contact information for members of the public on their websites. In relation to email addresses, I consider it to be appropriate to consider this alongside a staff name, as generally email addresses follow a defined format and it will be possible to discern the email address from an individual’s name.
32. I note that the contractors are freelance ecologists who were contracted by Coillte to undertake work to which the records refer. I cannot see how the release of their names would produce an adverse impact as professionals carrying out duties in the course of their work for Coillte. It is reasonable to assume that contractors of this kind advertise their services and openly engage with public authorities in the process of providing services under contract. It is also fair to say that the information within the records would not appear to be sensitive, contentious or likely to cause an adverse impact on the individuals named within it, if released.
33. In favour of release, I consider that there is an important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive, in particular by contributing to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment, as set out in recital 1 to the AIE Directive, and the rights in Articles 11 and 37 of the Charter of Fundamental Right of the European Union.
34. Weighing the above interests in the balance, I conclude that the public interest in releasing the names of Coillte staff and the freelance ecologist and corresponding email addresses outweighs the interests served by the refusal. In considering the public interest in releasing the ecologist’s phone number, I am of the view that the public interest of disclosure does not outweigh the interest served by refusal.
35. While Coillte have not explicitly relied on article 8(a)(iii), it is the appropriate provision to consider in relation to the redaction of a place name in record 3. This provision states:
“8. (a) A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information would adversely affect—
(iii) the protection of the environment to which that information relates.”
36. This provision seeks to transpose Article 4(2)(h) of the AIE Directive, which in turn is based on Article 4(4)(h) of the Aarhus Convention. I note that the AIE Directive and the Aarhus Convention provide examples of the type of information intended to be protected, respectively referring to “the location of rare species” and “the breeding sites of rare species.”
37. Article 8(a)(iii) must be read alongside article 10 of the AIE Regulations. Article 10(1) of the AIE Regulations provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. 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 article 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.
38. The Minister’s Guidance, in considering “Material the disclosure of which would make it more likely that the environment to which such material related would be damaged” outlines:
“This exclusion is designed to cover information such as that pertaining to the location of endangered species where, for example, disclosure of detailed information would pose a risk to the continued integrity of rare specimens” (paragraph 11.4).
39. The Aarhus Guide notes that the equivalent provision in the Aarhus Convention allows public authorities “to protect certain sites, such as the breeding sites of rare species, from exploitation — even to the extent of keeping their location a secret. It exists primarily as a safeguard, allowing public authorities to take harm to the environment into consideration when making a decision whether or not to release information.”
40. I am satisfied that the purpose of article 8(a)(iii) of the AIE Regulations is to allow for the withholding of information where disclosure would be harmful to the protection of the environment. When relying on article 8(a)(iii) the public authority must identify the environment to which the information at issue relates and explain how disclosure of the information at issue would adversely affect the “protection” of that environment.
41. The Hen Harrier species (Circus cyaneus) is listed on Annex 1 of the Birds Directive (Directive 2009/147/EC), and in Ireland is protected under The Wildlife Act 1976 & Amendment Act 2000. I am sensitive to the fact that protected bird species are vulnerable to damage, disturbance or commercial exploitation if data or information concerning their location, particular nesting site locations are made public.
42. Coillte have stated;
“As the Appellant has excluded information that would disclose nesting location this detail was redacted without reference to any exemption provided for in the AIE Regulations as it was not within the scope of the Request”.
43. The appellant maintains;
“If it is a general location it falls within the scope of my request. I refer you to the decision of the OCEI in 133378. A general location such as a Townland or a Wind Farm location does not sufficiently identify a nest site. Hen Harriers are out there; they can be seen in the general vicinity of areas by many people without them being aware of the nest location. I am not party to what has been redacted but am of the view that it needs to be something more specific than a Townland name or a Wind Farm name to meet the test of Article 8(a)(iii)”.
44. I have reviewed the record in question, and the redacted information relates to a place name. The place name relates to a site in excess of 900 hectares and this alone would not be sufficient to identify the location of the Hen Harrier nesting site. I note the appellant’s reference to a previous OCEI decision OCE-133378-G5P8J6 , which is available on our website, www.ocei.ie . Investigations conducted by this Office are de novo and each appeal is dealt with on a case by case basis. While previous decisions may offer useful guidance they do not bind this Office to take the same view in future cases, particularly where the facts and circumstances may differ.
45. I am off the view that if the place name was disclosed, this in conjunction with the date of the email and the forestry licence details which are publicly available would provide sufficient information to allow a real possibility of the Hen harrier nesting site being located. As such I find that Coillte are justified in redacting the location in the email dated 18 June 2024.
46. Having carried out a review under article 12(5) of the AIE Regulations, I annul Coillte’s internal review decision with respect to articles 7(5) and direct Coillte to undertake a new internal review to identify all information relevant to the request and provide these records to the appellant. I annul Coillte’s internal review decision with respect to articles 3(1) and 8(a)(i) regarding the redaction of Coillte staff names, email addresses, and the name of the freelance ecologist accordingly, I direct Coillte to release this information. I affirm the decision to redact the mobile phone numbers under article 8(a)(i) and the location of the Hen Harrier nesting site under article 8(a)(iii).
47. 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