From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-137746-Y2T9P1 OCE-133531-W6J3W9 OCE-136015-F9G6K6 OCE-137276-K5Q0H9 OCE-137281-K9J1X9 OCE-138537-F2P0Z7 OCE-137560-L5D6H9 OCE-137649-S0S2Z0 OCE-143825-K2D2Z4 OCE-141423-P1J1J6 OCE-141456-X5V0Q5 OCE-138357-W8G8R8
Published on
Whether Coillte holds information relevant to each request and whether Coillte was justified in withholding information from the appellant
28 March 2024
1. In a number of recent decisions issued in the past 12 months by the Commissioner for Environmental Information, it has been outlined how the sharp increase in the number of appeals to this Office has resulted in increased timeframes for the issuing of decisions. This increase has been seen across the broad spectrum of topics which this Office deals with but in particular requests for information on issues around forestry operations have seen a significant increase. This increase has resulted in a significant challenge to our goal of dealing with appeals in a timely and efficient manner. To address this challenge we are currently reviewing our procedures for investigating appeals to ensure we operate as efficiently as possible
2. The increase in requests for information experienced by those public authorities whose daily operations impact the environment directly has also impacted the ability of these authorities to process these requests in a timely manner.
3. As the state body directly responsible for managing the national forest estate Coillte in particular has seen a dramatic rise in the number of requests for information on the environment under the AIE Regulations it has received. In recent months’ additional staff have been allocated by Coillte to deal with the increased demands on its resources in this area which is a welcomed development by this Office. It is the recommendation of this office that both requestors and Coillte engage fully to achieve satisfactory outcomes for requests under the AIE Regulations.
4. The need for increased cooperation between all parties involved in the AIE process becomes all the more evident where batch decisions, involving more than one appeal, is issued by this Office on a specific topic or article of the AIE Regulations. These batch decisions place an increased burden on the public authority in question due to the number of appeals remitted under one decision and the need for the public authority to process each appeal within the allowable timeframe as set out under the AIE Regulations.
5. The 12 appeals at issue here were each the subject of a decision by Coillte on requests submitted primarily in 2023 with a small number also related to requests submitted in 2022. Each relates to a request for environmental information relating to the primary operation of Coillte (i.e. forestry). This Office is dealing with a significant backlog of cases, and due to this we have been unable to deal with these cases until this point. These cases were identified by this Office as part a review of our current case load to identify instances where an informal solution may be found and information could be released without the need for a formal decision. Given the passage of time and improvements in the search abilities of Coillte, it is the hope of this Office that information relevant to each individual case can be identified and released to the appellant where appropriate. Where no new information is released to the appellant, Coillte must succinctly set out to the appellant how it conducted the search process in response to their request as provided for under the AIE Regulations.
6. I am directed by the Commissioner for Environmental Information to carry out a review of these appeals under article 12(5) of the AIE Regulations. In so doing, I have had regard to the submissions made by the parties to each appeal. In addition, I have had regard to:
a. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
b. 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
c. the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
7. In accordance with article 12(5) of the AIE Regulations, the role of this Office in each of these appeals is to review Coillte`s internal review decision and to affirm, annul or vary it.
8. While I will not comment on each individual case under this Decision, the common thread which all cases share, as outlined by Coillte in both its internal review stage and in its submissions to this Office, is the relevance of the requested environmental information in each appeal to the authority’s participation in an audit process which was being carried out at the time of the appeal requests.
9. Having examined the appeals in question I note that Coillte has broadly refused the information requested under a number of articles, mainly (but not restricted to) article 9(1)(b), 9(2)(c) and 8(a)(iv). These provisions allow for a public authority to refuse access to environmental information on the basis of the impact of its release on the course of justice, where material is in the course of completion and where release of information would adversely impact on the confidentiality of proceedings of the public authority.
10. In its submissions to this Office, on a number of the appeals included in this decision, Coillte also stated that the audit in question was expected to conclude, “by the end of January 2024 at which time the information sought by the appellant may be released”.
11. It is the opinion of this Office that Coillte has failed to provide adequate reasoning as to how the release of the requested information in these appeals may negatively impact its involvement in the aforementioned audit process and to justify this with regard to the provisions of the AIE Regulations. With reference to Coillte`s refusal to release a number of documents where it considers those documents to be in the course of completion, and given the passage of time since these decisions were made, it appears that many of these records may now be complete and therefore available for release.
12. The duty to give reasons, for the refusal of requests, in the decisions of Coillte arises not only by virtue of the AIE Regulations and Directive, is recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed.
13. Following this Office’s initial examination of the case files, in each instance it appeared certain that following a full investigation of all of the circumstances of the appeal that the decisions of Coillte would be annulled and the request remitted. As many of the records in question contain third party information, where the third parties have not been consulted in relation to its release, this Office does not deem it appropriate to direct the release of this information.
14. Having reached this preliminary conclusion, this Office’s investigator contacted Coillte to explore if an informal decision could be reached to facilitate a review of these cases by the authority. In an effort to bring these cases to a timely conclusion Coillte has agreed to re-examine each case, without prejudice to its previous decision making process, within this Decision to bring them to a satisfactory conclusion preferably with an informal resolution where appropriate. As with previous batch decisions, this Office is cognisant of the additional workload placed on Coillte by this approach and appreciates Coillte for agreeing to review these cases in this manner.
15. While I understand this outcome may be frustrating to the appellants, a full investigation in each of the appeals, including the probable need to engage with relevant third parties, would result in further delays to the appellants receiving relevant information where appropriate. I am satisfied that given the passage of time, and the other factors set out above, the most appropriate outcome having regard to the aims of the AIE regime is to enable Coillte to review these requests.
16. I therefore annul the internal review decisions in each of these appeals. Accordingly, Coillte should carry out a fresh decision making process in respect of each of the requests. I do so on the basis that carrying out full reviews of these cases where Coillte would, in effect, be making first instance decisions, would take more time than it will take for the authority to review the requests and issue, where necessary, new internal review decisions. Should the appellant be unhappy with the outcome of Coillte’s review of these requests, he will have the option of a new appeal to my Office.
17. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby annul the internal review decision of Coillte in each of these appeals. Coillte should now carry out a fresh internal review process in respect of each request.
18. 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