Decision
Ms W and Coillte
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-135471-L1L8F7
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-135471-L1L8F7
Published on
Whether Coillte was justified in refusing the appellant’s request on the basis that no relevant environmental information was held by or for it
1. On 21 November 2022, the appellant requested the following information;
‘For Co. Leitrim only and for the period from 1 January 2022 to the date of your reply to this AIE, the following records held by Coillte:
(1). all instructions from Coillte to any external consultants/companies in relation to surveys of the Marsh Fritillary butterfly
(2). all survey reports received by Coillte in relation to the Marsh Fritillary butterfly
(3). all records (either whole or part) relating to signs of breeding activity of the Marsh Fritillary butterfly
(4). all records (either whole or part) relating to sightings of the Marsh Fritillary butterfly.’
2. Coillte replied on 20 December 2022, refusing the request under Article 7(5) of the AIE regulations on the basis that no such records existed.
3. On the same day the appellant requested an internal review of this decision.
4. On 19 January 2023 Coillte affirmed its original decision.
5. The appellant appealed to my Office on 14 February 2023.
6. I am directed by the Commissioner for Environmental Information 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 Coillte. In addition, I have had regard to:
7. In accordance with article 12(5) of the AIE Regulations, the role of this Office 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, this Office will require the public authority to make available environmental information to the appellant.
8. This review is concerned with whether the Coillte was justified in refusing access to environmental information within the scope of the appellant’s request on the basis that no such information is held by or for it.
9. As a part of her request for an internal review to be carried out, the appellant asked that the internal reviewer provide the following information;
10. In its response to the request for internal review, Coillte outlined that it is not obliged under the AIE Regulations to respond to such interrogation or cross-examination, although on this occasion the internal reviewer did outline the steps taken to locate information that may have been relevant to the request, which is welcome.
11. Coillte are correct that there is no provision under the AIE Regulations which requires it, as a matter of course, to outline in detail the particular steps taken in carrying out the internal review. Coillte’s obligation under articles 7(4) and 11(4) of the AIE Regulations is to provide reasons for refusal both at decision and internal review stage. The level of detail provided must be in line with the general duty to give reasons as set out in cases such as Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90. It may be the case, particularly where article 7(5) is being relied upon, that detailed search information is appropriate. I will note that in my view, the time taken by the internal reviewer to complete each step taken to locate the requested information is not relevant to this particular appeal.
12. Notwithstanding the above, it is clear that enhanced co-operation is required between requesters and public authorities. This enhanced cooperation would result in requesters getting the required information in a more timely manner without the need for appeal to this Office, and in turn reduce the amount of resources used by public authorities in dealing with requests and subsequent appeals.
13. When considering an appeal where a public authority has effectively refused all or part of a request under article 7(5) of the AIE Regulations, this Office must be satisfied that adequate steps have been taken to identify and locate relevant records, having regard to the particular circumstances.
14. When determining whether the steps taken are adequate in the circumstances, the Commissioner considers that a standard of reasonableness must necessarily apply. Therefore, where appropriate during the course of investigations, public authorities are required to detail the steps taken to search for relevant records.
15. Coillte have outlined that in an effort to locate relevant records they undertook a physical search of all relevant areas of the organisation in which the records sought might be held, in addition to a search of the electronic databases and records held both on mainframe computers and individual staff computers. Coillte also conducted interviews with individual members of staff who may have dealt with such records and carried out detailed discussions with relevant records management staff. Despite all of this no relevant records were discovered.
16. During the course of the investigation Coillte were made aware of details of the appellant’s submission which contends that relevant records did exist, in particular a report dated October 2022 which was commissioned by Coillte and titled ‘Marsh Fritillary Survey of Proposed Forestry Site in Cleighran, Co. Leitrim.’
17. Coillte subsequently carried out further searches and informed this Office that it did commission a survey of the Marsh Fritillary butterfly from an external consultant relating to an afforestation application for a property in Co. Leitrim which came within scope of the appellant’s request.
18. Coillte submitted that it is standard procedure that all such work be commissioned through its ecology team and that when the original AIE request was received, that team confirmed they had no knowledge of any such surveys commissioned for Co. Leitrim. However, it transpired that a member of the forest acquisition team had commissioned the report arising from a further information request from the Department of Agriculture, Food & the Marine. This staff member was unaware of the necessity to co-ordinate such surveys through the ecology team and did not notify that team of his need to commission a survey and they were entirely unaware of same.
19. Coillte subsequently released this report and associated records and apologised to the appellant for the mistake. Coillte also took steps to ensure staff are aware of relevant internal procedures going forward in an effort to avoid similar mistakes in the future which is most welcome.
20. Given that the records which were released were only identified following Coillte being made aware of their existence due to the information contained in the appellant’s submission to this Office, I cannot be satisfied that adequate steps were taken in the initial searches carried out by Coillte to identify records within the scope of the appellant’s original request.
21. Notwithstanding that the above report has been released, the appellant maintains that further records relevant to her request are held by Coillte. She notes that her request related to all forestry sites in County Leitrim, and that if the above report was not located when her request was initially processed, it is possible that other information may also have been overlooked. I consider therefore that the most appropriate course of action is to remit this matter to Coillte so that further searches can be carried out through a fresh decision making process to identify and locate any further information which may be held by or for it, within the scope of the appellant’s request. If no additional information is retrieved as a result of those searches, Coillte should bear in mind its obligation to provide clear reasons for its decision, which in this case would involve setting out in a sufficient level of detail the steps taken to search for further information.
22. Having carried out a review under article 12(5) of the AIE Regulations, I annul Coillte’s decision in this case and direct it to undertake a fresh decision-making process.
23. 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