Decision
People Over Wind and Coillte
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-93414-J3Y7T8
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-93414-J3Y7T8
Published on
Whether Coillte’s decision to refuse access to information identified as coming within the scope of the appellant’s request under articles 8(a)(iv), 9(1)(c), and 9(2)(d) of the AIE Regulations was justified.
19 December 2024
1. This appeal relates to a request to Coillte for information relating to the Cullenagh wind farm (the “Project”).
2. On 12 November 2018, the appellant submitted an AIE request to Coillte seeking the following information “regarding Coillte’s proposed windfarm at Cullenagh, County Laois:
1. Details of the cost benefit analysis (or other economic analysis as applicable) used to underpin the Cullenagh Co. Laois wind farm project.
2. Details of all objectives/key drivers/reasons upon which the project is based or is designed to facilitate (including short, medium, and long-term objectives).
3. A statement explaining whether there are different versions of the business case. In the instance that there are differing versions, I am requesting that all versions are supplied.
4. All documentation that was submitted to Coillte Board to underpin the project.
5. A copy of the decision of the Board to proceed with the project.
6. A copy of all Board meeting minutes discussing the project.”
3. On 16 November 2018, Coillte informed the appellant that it considered the request to have been made in too general a manner and invited the appellant to make a more specific request. In particular, it invited clarification of the scope of what it called “requests numbered 1, 2, 3 and 4”, which I will refer to as parts 1, 2, 3 and 4 of the AIE request. The appellant replied on the same day, offering the following modified version of the request:
1. A copy of the cost benefit analysis (or other economic analysis if this exists) used to underpin the Cullenagh Co. Laois wind farm project.
2. Removed.
3. A copy of the business case for the Cullenagh wind farm project, Co. Laois. (In the instance that there are differing versions, I am requesting that all versions are supplied.)
4. All documentation that was submitted to Coillte Board regarding the Cullenagh wind farm project, Co. Laois.
5. A copy of the decision of the Board to proceed with the project.
6. A copy of all Board meeting minutes discussing the project.”
4. In respect of part 3 of the request, the appellant clarified that a business case “is usually the key document of record that integrates all of the various elements required to support a decision on the merits of a proposal and is expected to include: Objectives, Scope, Feasibility, Options Appraisal (Economic / Financial / Risk Analysis), planning and design issues and a final recommendation”. In the remainder of this decision, I refer to this modified request as the “request”.
5. On 11 December 2018, Coillte notified the appellant of its decision to refuse access to the information requested. Parts 1, 3, 4 and 6 of the request were refused on the basis that the information was not environmental information, within the meaning of article 3(1) of the AIE Regulations. Part 5 of the request was refused on the basis that no decision had been taken by the board to proceed with the project. In addition, Coillte stated that:
a) Parts 1 and 3 of the request may be refused on the basis that it comprises information in the course of completion (article 9(2)(c)) and that disclosure of the information, once completed, would adversely affect commercial or industrial confidentiality (article 9(1)(c)).
b) Parts 4 and 6 of the request may be refused on the basis that disclosure of the information would adversely affect commercial or industrial confidentiality (article 9(1)(c))
6. On 10 January 2019, the appellant requested an internal review of Coillte’s decision, including submissions as to why the decision was incorrect. No response was received to the request for an internal review.
7. The appellant brought an appeal to this Office on 23 February 2019.
8. This Office sought and received written submissions from the appellant and from Coillte during the investigation of the appeal. Coillte clarified and revised its position during the course of the investigation. In summary, Coillte’s effective decision to refuse access was as follows:
a) It did not hold any information in respect of parts 1, 3 and 5 of the request. While its initial decision related to 5 identified records falling within the scope of parts 4 and 6 of the request, it had identified 11 additional records also falling within the scope of parts 4 and 6 of the request which had not been considered as part of that decision. (Those additional records were not provided to this Office during the first appeal.)
b) The information requested in all parts of the request “could, in principle, contain” environmental information.
c) In respect of parts 4 and 6 of the request, the exceptions in articles 8(a)(iv) and/or 9(1)(c) applied.
d) In respect of part 6 of the request, the exceptions in article 9(2)(d) also applied.
9. On 22 November 2019, my predecessor reached a decision on the appeal, which is available here. In summary, he found that:
a) Coillte held information falling within parts 3 and 5 of the request (business case information and interim decision(s) to proceed with stages of the project, respectively);
b) Coillte did not hold information falling within part 1 of the request (cost benefit analysis);
c) The information falling within the scope of parts 3 to 6 of the request and contained in the 5 records provided to this Office is environmental information;
d) Information in record 5 relating to other projects was out of scope of the request; and
e) In respect of part 6 of the request, article 9(2)(d) did not apply. I accepted that the information in record 5 could concern internal communications, but I was not satisfied that the information was of the type intended to be provided for under that provision or that the public interest in refusal would outweigh the public interest in disclosure
10. My predecessor did not make a finding in respect of articles 8(a)(iv) or 9(1)(c), as there was uncertainty around Coillte’s treatment of the request, Coillte acknowledged holding 11 additional records which it had not yet considered, and it would be preferable for the necessary weighing of competing interests in relation to the information to be done in respect of all of the information considered together.
11. He noted that, in the absence of an appeal to the High Court and if the appellant wished Coillte to proceed, Coillte should regard itself as having received an AIE request on the date when the appellants make that wish known, asking for:
a) All environmental information in documentation that was submitted to Coillte’s Board regarding the Cullenagh wind farm project, Co. Laois up to 12 November 2018.
b) All decisions of the Board to proceed with any stage of the project (including interim decisions) up to 12 November 2018.
c) All of the information in the 11 documents recently located by Coillte, in so far as those documents were held by Coillte on 12 November 2018.
12. On 20 January 2020, the appellant confirmed that it would like Coillte to proceed to consider the remitted request.
13. On 20 February 2020, Coillte refused access to information held in 17 documents. Coillte confirmed that total of 12 (rather than 11) additional documents were located by Coillte during the course of the investigation of the first appeal, but the number was incorrectly stated to the investigator due to inadvertent error on Coillte’s part. In its decision, Coillte described the documents as follows:
“The requested records comprise:
(a) Board minutes or extracts thereof relating to the Project; and
(b) decision items submitted to Coillte’s Board relating to the Project. These records contain details on Coillte’s overall development strategy, commercial risk management approaches and wider business strategic considerations for projects generally, including the Project. For example, the possibility of a joint venture incorporation and proposed mutual shareholder rights, outlines Coillte’s interpretations of identified business risks as a result of certain external factors unrelated to the Project, estimations of costs and legal and commercial advices obtained from third party advisors. They also contain details or reflect considerations of other matters in the context of the Project.
These matters include, among other things, the implications of certain court proceedings and anticipated related legal costs.
Some of these records also detail interim business decisions made by Coillte’s board regarding the Project. However, some of these interim decisions were conditional upon other outcomes/events occurring that have not yet transpired. Other interim decisions have not been executed given the impact of certain external factors, such as judicial review challenges taken by People Over Wind, causing delays in the Project.”
14. Coillte’s grounds for the refusal decision were, in summary:
a) Article 8(a)(iv): Coillte must refuse a request where disclosure of the information requested would adversely affect the confidentiality of proceedings of public authorities, where such confidentiality is protected by law, including exempt records under the Freedom of Information Act 2014 (the FOI Act). In particular:
(i) If information about the proceedings of public authorities is capable of being protected under the FOI Act, Coillte must not release this information under the AIE Regulations. This applies even where Coillte is an exempt body under the FOI Act. Disclosure of the information would adversely affect the confidentiality of information that is exempt under sections 30(1)(a), (b) and (c) and 31(1)(a) of the FOI Act.
(ii) Under section 33 of the Forestry Act 1988, Coillte is prohibited from disclosing confidential information obtained by it while performing its duties unless duly authorised to do so. “Confidential” is defined as meaning that which is expressed to be confidential either as regards particular information or as regards information of a particular class or description. Many of the requested records have been expressed to be confidential by or for the Board.
(iii) The balance of legitimate public interests does not weigh in favour of disclosure of the requested records.
b) Article 9(1)(c): Coillte may refuse a request where disclosure of the information requested would adversely affect commercial or industrial confidentiality provided for in Irish or EU law to protect legitimate economic interests. The confidentiality of information provided for in national or Community law can include exemptions under the FOI Act. Disclosure of the information would adversely affect the confidentiality of information that is exempt under sections 30(1)(a), (b) and (c) and 31(1)(a) of the FOI Act. In addition, release of the requested records would adversely affect commercial or industrial confidentiality provided for in sections 35(1) and 36(1) of the FOI Act. The balance of legitimate public interests does not weigh in favour of disclosure of the requested records.
c) Article 9(2)(d) (in the alternative to the exceptions above): Coillte may refuse to make environmental information available where the request concerns internal communications, taking into account the public interest served by the disclosure. The requested records comprise internal communications of Coillte and its Board. Article 9(2)(d) applies to all records other than record 5 (in respect of the Commissioner previously found that article 9(2)(d) did not apply) on the ground that they contain and/or reflect strategic considerations of a confidential and commercially sensitive nature relating to the development phase of the project or other projects. In addition, some of these records reflect interim decisions that were conditional upon other outcomes/events that have not yet transpired, or decisions that have not been executed given the impact of certain external factors and/or delays in the project. The balance of legitimate public interests does not weigh in favour of disclosure of the requested records.
15. On 26 February 2020, the appellant requested an internal review.
16. On 26 March 2020, Coillte affirmed its decision to refuse the remitted request.
17. On 27 April 2020, the appellant brought an appeal to this Office. Although the appeal was brought outside the time set out in article 12(4)(a) of the AIE Regulations, in light of submissions made by the appellant my predecessor exercised the power under article 12(4)(b) of the AIE Regulations to extend the time for initiating an appeal.
18. This Office sought and received written submissions from the appellant and from Coillte during the investigation of the appeal. By agreement with the investigator, Coillte’s submissions focused on the proper interpretation of article 8(a)(iv) of the AIE Regulations.
19. On 20 July 2021, the investigator informed the parties of my predecessor’s intention to refer a question of law arising in this appeal to the High Court for determination under article 12(9)(a) of the AIE Regulations and invited the parties to make any submissions that they may wish me to take into account on the wording of that question.
20. On 23 August 2021, Coillte made submissions to this Office on the procedure for referral and on the questions to be referred to the High Court. The appellant did not make any submissions.
21. As indicated to above, the Commissioner for Environmental Information has a power under article 12(9)(a) of the AIE Regulations to refer any question of law arising in an appeal to the High Court for determination. In November 2021, my predecessor used this power to refer a question to the High Court, seeking the High Court’s guidance on the interpretation of articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, to the extent they involved an interplay with the Freedom of Information Act 2014 ( Notice of Motion and Grounding Affidavit ) . Accordingly, it was not possible to progress this case until the Court provided its legal guidance. As such, this appeal was placed on hold pending the receipt of the Court’s decision. The High Court issued its judgment on 28 April 2023 and it is available at [2023 IEHC 227].
22. In this judgment, the High Court stated at paragraph 111:
“The FOI Act only protects the confidentiality of proceedings of public bodies where records sought to be disclosed are found to be exempt within the meaning of the FOI Act. Records are only exempt where the public body seeking to withhold access is a body subject to the FOI Act, as defined by section 6 of the FOI Act, and where (if applicable), both limbs of the test for exemption are met: the records come within an exemption protecting the confidentiality of proceedings of public bodies and the public interest does not warrant disclosure. As Coillte is an “exempt agency” under the Act, the confidentiality protection under the FOI Act identified in Regulation 8(a)(iv) is not available to Coillte.”
23. It is the view of the Commissioner that it follows from the above that it is not open to Coillte to rely on the provisions of the FOI Act when seeking to apply article 8(a)(iv) or any of the other exemptions in the AIE Regulations to information sought in an AIE request.
24. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between Coillte and the appellant, as outlined above, and to correspondence between this Office and both Coillte and the appellant on the matter. I have also considered the decision of the High Court referred to above. 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);
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the Aarhus Guide)
25. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
26. 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.
27. The scope of this review is concerned with whether Coillte’s decision to refuse access to information identified as coming within the scope of the appellant’s request under articles 8(a)(iv), 9(1)(c), and 9(2)(d) of the AIE Regulations was justified.
28. A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of this decision.
29. Coillte is refusing access to the information at issue contained in all 17 records identified under articles 8(a)(iv) and 9(1)(c), and, in all the records apart from record 5, under 9(2)(d) of the AIE Regulations. These provisions must all be read alongside article 10 of the AIE Regulations.
30. Following the judgment of the High Court on 28 April 2023 referred to above and the reactivation of the appeal with this Office, Coillte was invited to make updated submissions to this Office. It took some time for this Office to receive any response from Coillte, which contributed to the regrettable delay in progressing this appeal. I wish to note that in future, where there are repeated delays in responding to requests for submissions, this Office will consider simply proceeding to a final decision where appropriate.
31. In light of subsequent discussion between Coillte and this Office and given the findings of the High Court, I have decided that the most appropriate course of action to take in this case is to annul Coillte’s decision and direct it to carry out a fresh internal review decision making processing respect of the information at issue. I understand that this will be frustrating for the appellant as it causes further delay in resolving this appeal and I wish to apologise for this. This delay was caused in part by the large backlog of cases that this Office is dealing with, and we are taking steps to ensure that this backlog is dealt with in the coming months. However, on the whole, I consider that the most efficient way of progressing this appeal at this point is to now require Coillte to carry out this new internal review process within a defined time period, and that the AIE regime as a whole is best served by this outcome. It will be open to the appellant to appeal again to this Office should it remain unsatisfied with the outcome of this new internal review.
32. As indicated, I am directing Coillte to provide the appellant with a new internal review decision under article 11 of the AIE Regulations. For the sake of completeness, I wish to note that Coillte asked this Office if the matter could be remitted to original decision stage, rather than internal review decision stage, which Coillte referred to as a “carrying out [of] an analysis of the February 2020 decision making process.” I wish to emphasise that in carrying out its fresh internal review decision making process, Coillte can decide to affirm, annul, or vary its decision dated 20 February 2020.
33. Furthermore, I note that in my decision in case OCE-143997-R9Q9V8 dated 29 February 2024, I explained this Office’s current approach to the remittal of cases. Article 12(3) of the AIE Regulations allows for a decision made by a public authority under article 11 of the AIE Regulations (i.e. an internal review decision) to be appealed to my Office. Article 12(5) of the AIE Regulations provides that I may review the decision of the public authority and affirm, vary or annul the decision concerned, specifying the reasons for my decision. I therefore consider that where I annul a decision of a public authority, this only has the effect of annulling the internal review decision, not the original decision. Accordingly, I can only remit this matter to internal review decision stage and the next step is for Coillte to carry out a fresh internal review decision making process. In doing so, should Coillte wish to rely on any exemption provision provided for in article 8/9 of the AIE Regulations, it must fully set out its reasons for reaching its conclusions as well as, where relevant, its considerations of article 10 of the AIE Regulations, including paragraphs (3), (4), and (5).The appellant will have a right of appeal to this Office if it is not satisfied with Coillte’s new internal review decision.
34. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul Coillte’s decision to refuse access to the information at issue. I direct Coillte to carry out a fresh internal review decision-making process in respect of the information at issue.
35. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information