Decision
Mr F and Coillte
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-137677-B8T7J9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-137677-B8T7J9
Published on
Whether the request has been dealt with in accordance with Article 5(2) of the AIE Directive (transposed by article 15(1) of the AIE Regulations)
19 June 2024
1. On 1 February 2023, the appellant requested the following information from Coillte:
“…an electronic copy of all Operational Monitoring Records for works in Coillte forests with the prefix CN during the month of January 2023. Please include details of the relevant licences. I wish to receive the information in electronic format”.
2. Coillte issued its original decision to the appellant on 28 February 2023. It said:
“I have identified six records which are relevant to your request. I am granting access to these records, subject to payment of applicable charges. Please refer to the attached Schedule of Records for a summary of these records.
Charges – article 15 of the AIE Regulations allows a public authority to charge a reasonable fee for the cost of supplying environmental information. We have decided that a charge will apply to your AIE request. As detailed on our website, the charge is based on a rate of EUR20 per hour for search, retrieval, compilation and copying. We have completed our review of your AIE request and have compiled the information that we hold related to your request. We have calculated that completing your AIE request took one hour and therefore a charge of will be applied to your AIE request. This assessment can be broken down as follows.
Search and retrieval time – 2.0 hours @ €20ph (time spent locating relevant files/data sources and collating relevant documents contained on those files/data sources) €40 Compilation time – 0.5 hours @ €20ph (time spent examining the documents, considering exemptions, completing redactions if required, and scheduling the records) €10
Total €50
…. If you are concerned about the charge sought, assistance can be provided by the AIE Team to give you the option of refining your request, with a consequent reduction in the charge payable. If you are the holder of a current medical card or are in receipt of social welfare benefit, Coillte may reduce the charge on production of evidence by you, e.g., if you forward a copy of your medical card.”
3. The appellant requested an internal review from Coillte on 1 March 2023. He said:
“I wish to request an internal review of this request. The decision letter indicates six records, the schedule indicates five. I do not accept that it would take a competent member of staff using an efficient data management system 2 hours to locate 5 or 6 records. Therefore the charges applied are unreasonable. The information requested should be retrievable in seconds using the relevant filters in an efficient data storage system.”
4. The internal review was issued by Coillte on 29 March 2023. It affirmed the original decision and addressed the reasonableness of the fee. It said:
“The information requested by you exists across many platforms and divisions within the organisation. Much time, consideration and resources have been employed to develop these systems for maximum outputs and results. The AIE Directive does not mandate any particular system of information storage/organisation in Coillte. The public interest is the central focus of the Directive. In any case, Coillte organises its information in a manner which facilitates the efficient completion of its day-today functions. Such functions, elaboration on which is publicly available on our website, serve the public interest in a manner the Directive is designed to protect. At times, this systemic organisation of information may be incompatible with its easy and immediate dissemination. In such instances a reasonable fee may be charged for its identification and release. Coillte is assured that such an approach facilitates the protection of the public interest insofar as is practicable, by enabling both efficient storage of information, and its dissemination to the public.”
In its internal review Coillte also addressed the basis on which the charge was calculated.
“It was based on: search and retrieval time; time spent locating relevant files/data sources; collating relevant documents contained on those files/data sources; examining the documents, considering exemptions, and scheduling the records. I am satisfied that the time spent on the Request as set out in the Decision has been accurately recorded, the work involved clearly set out, the fees calculated in a transparent manner and the subsequent charge correctly applied. In being strictly limited to reimbursement for man-hours spent on the request, I am satisfied that the charge is reasonable.”
5. Coillte in its internal review also reiterated that assistance was offered to the appellant to refine the AIE request, and that reductions were available for medical card holders, upon production of evidence. Coillte noted that the appellant had not engaged with it on either of these points.
6. The appellant appealed to this Office on 21 April 2023.
7. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and Coillte. I have also examined the contents of the records at issue. 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’).
• The decisions of the Courts of Justice of the European Union in C-71/14 East Sussex County Council v Information Commissioner, and C-217/97 Commission v Germany
8. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. In accordance with article 12(5) of the AIE Regulations, the role of this office is to review the public authority's internal review decisions and to affirm, annul or vary them. Article 11(5) of the regulations sets out that a reference to a request being refused, in whole or in part information includes a request that has not been dealt with in accordance with Articles 3, 4 or 5 of the AIE Directive, (including the ground that the amount of the fee charged under article 15(1) is excessive.)
10. In this appeal, Coillte has decided to grant the appellant’s request, subject to payment of a fee. The appellant submits that the fee in this case is not reasonable. As such the scope of my review in this case is confined to whether or not the request has been dealt with in accordance with Article 5(2) of the AIE Directive and article 15(1) of the AIE Regulations.
Submissions
11. The appellant, in submission to us on 21 April 2023, said the fee proposed by Coillte was unreasonable. In particular, he said that Coillte has not explained how the information requested “exists across many platforms and divisions within the organisation”, and that if this was not the case then the fee cannot be said to be reasonable. He stated that the information requested is of a type that should be actively disseminated by Coillte (Article 7 of the AIE Directive) therefore it is unreasonable to charge a fee. He specifically pointed to article 7(2) of the AIE Directive which states: “The information to be made available and disseminated shall be updated as appropriate and shall include at least:…(e) data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment;” The appellant says the information requested falls into this category.
12. The appellant stated that Coillte is obliged to organise the information that it holds in a form or manner that facilitates ready reproduction and accessibility to the public, and the length of time Coillte states it took to process the request suggests Coillte does not have its Operational Monitoring Information maintained in a manner that is consistent with the Directive and the Regulations. He says it is unreasonable for a public authority to base its charges on the time that it takes to locate and retrieve information that is organised in a manner that then public authority itself admits is not compatible with easy dissemination. He contends that Coillte is seeking to apply charges to act as a deterrent to him accessing environmental information.
13. Coillte made the following points in submission to this Office on 2 November 2023:
“ 5. Having spoken with the initial decision-maker and the AIE team, I am satisfied that this work was completed at all stages at the appropriate level of expertise.
6. In his referral for internal review, the Appellant asserts that he does “not accept that it would take a competent member of staff using an efficient data management system 2 hours to locate 5 or 6 records” and furthermore asserts that “the information requested should be retrievable in seconds using the relevant filters in an efficient data storage system”. However, there is no correlation between the number of records identified and the amount of time required to complete searches to the extent required by the AIE Regulations. The records must be retrieved from an independent database, exported to Excel to disseminate, checked on a separate database to determine if the site is active and then further cross checked in a third database to add the Felling License to the record.
7. I am satisfied that Coillte worked as efficiently as possible to respond to the request and provided the Appellant with a detailed schedule of the time involved. I am further satisfied that the time spent on the Request, as set out in the Initial Decision has been accurately recorded, the work involved clearly set out, the fees calculated in a transparent manner and the subsequent charge correctly applied.
8. I refer to the decision of the Court of Justice of the European Union in East Sussex County Council v Information Commissioner (East Sussex), in which the Court found that all of the factors, on the basis of which the amount of the charge is calculated, must relate to the actual costs of supplying the requested information. This may include the costs attributable to the time spent by the staff of the public authority concerned on answering an individual request for information, including the time spent on searching for the information and putting it in the form required. In the context of this request the basis upon which the charge was calculated was clearly explained to the Appellant on acknowledging the request and in the Initial Decision. I now reiterate, in the context of the East Sussex case, that I am satisfied that the charges were correctly calculated and applied based on the actual time spent by Coillte staff on the Request.
9. In addition, the Court in the East Sussex case, found that the expression “reasonable amount” in the AIE Directive does not include any amount that may have a deterrent effect on persons wishing to obtain information or that may restrict their right of access to information. The Court stated: “In order to assess whether a charge … has a deterrent effect, account must be taken both of the economic situation of the person requesting the information and of the public interest in protection of the environment. That assessment cannot therefore relate solely to the person’s economic situation, but must also be based on an objective analysis of the amount of the charge. To that extent, the charge must not exceed the financial capacity of the person concerned, nor in any event appear objectively unreasonable.” The charges applied by Coillte for the purpose of this request cannot reasonably be assessed as having a deterrent effect given the level of the charges and the fact that Coillte, in the Initial Decision, informed the Appellant of additional reductions available for medical card holders or those in receipt of social welfare, upon production of evidence. The Appellant did not engage with Coillte in that regard.
10. The East Sussex case was cited with approval in the decision of your office in the matter of Ms M and Department of Agriculture, Food and the Marine (Ms M). In Ms M, the Commissioner ultimately found against the public authority and held that the charge applied was unreasonable in the circumstances. However, the decision in Ms M should not apply in the current circumstances for the following reasons: a. In Ms M, the Department failed to set out the basis on which the charge was calculated, despite being explicitly asked to do so by the assigned investigator. In the present circumstances, the basis was clearly set out in Coillte’s email acknowledging the Request and in the schedule of costs supplied to the Appellant in the Initial Decision. It is also available to the public at large on Coillte’s website. b. In Ms M, the public authority referred to work involved in “search, retrieval and copying of information” in the initial decision but the internal review referred only to work completed in relation to redaction. In the present circumstances, Coillte has been consistent in documenting the work undertaken by its employees within the Initial Decision and the Internal Review Decision.
11. I also refer to the case of Open Focus and Sligo County Council, in which it was held: “My conclusion is that the Council's imposition of a fee in this case is not in compliance with the requirements of article 15 of the Regulations. This is because the Council failed to make available to the public details of its charges, how they are calculated and the circumstances in which they will be waived.” Here, the public authority’s failure to publicise its charges was the crux of the decision to find against it. In contrast, Coillte is transparent regarding its charges under the AIE Regulations and was clear in all communication with the Appellant as to the extent of the charges and the calculation of same as outlined at para 4.9(a) and (b) above. This supports Coillte’s argument that the Charge was reasonable.
Conclusion
As noted throughout this submission, Coillte has at all times acted in accordance with its obligations under the AIE Regulations and the Directive. Coillte has granted the Request and will gladly make the Information available to the Appellant once he has paid the Charge.”
14. On 30 May 2024, the appellant made the following submission specifically in relation to the charge proposed by Coillte:
“The charging for search and retrieval time creates a perverse incentive (particularly for a public authority, like Coillte, which has a commercial remit) to not actively disseminate environmental information. Why disseminate at a cost to the authority when a charge can be applied to supply the information making the activity cost neutral or even profitable? Why organise environmental information for ease of dissemination if you can apply a charge to search and retrieve. The more that is charged for search and retrieval the more the public is likely to be dissuaded from seeking information.
The AIE Regulations state;
15. (1) (a) A public authority may charge a fee when it makes available environmental information in accordance with these Regulations (including when it makes such information available following an appeal to the Commissioner under article 12), provided that such fee shall be reasonable having regard to the Directive.
The public authority may charge a fee when it makes available environmental information. Where Coillte determines that a fee applies they do not release environmental information (and now will not even release a schedule of records) without a fee being paid first.
The Regulations indicate that the public authority can apply the charge when it makes the information available, not in advance of making the information available as Coillte is trying to do here. I am therefore of the view that Coillte is not applying the Regulations correctly in requiring payment in advance of releasing the requested information.
Preamble 18 of the AIE Directive states;
“Public authorities should be able to make a charge for supplying environmental information but such a charge should be reasonable. This implies that, as a general rule, charges may not exceed actual costs of producing the material in question. Instances where advance payment will be required should be limited. In particular cases, where public authorities make available environmental information on a commercial basis, and where this is necessary in order to guarantee the continuation of collecting and publishing such information, a market based charge is considered to be reasonable; an advance payment may be required.” This situation does not apply to my request.
My reading of the Regulations is that Coillte is permitted to apply a charge when it provides the information to me; not before it provides the information.
I make the comparison between a restaurant and McDonalds. In the former you order the food, receive your order and once you are satisfied you pay. In the latter you order and pay before you receive your order.
It is my view that, most probably the letter and definitely the spirit of, the AIE regime should reflect that of the restaurant.
There is a sound temporal basis for my position. The timing for making an appeal against an IR decision is based on the date on which the decision is issued, not the date on which the environmental information is released. Where payment is required up front the requester is discriminated against in terms of the amount of time available to appeal a decision once the information has been received. It can take a number of days for payments to process and if information needs to be posted that eats further in to the appeal window. There is therefore a two-tier approach to appeal times - 1) where information is released with the decision and 2) where information is only released on payment of a fee. The latter has a shorter and undetermined window. If the information is released on the day before the month appeal window is up the requester has just one day to consider making an appeal. This is a possibility if the payment must be made before the information is released. The Regulations are not structured to address such a (fundamentally unfair) situation and that is why I am of the view that the interpretation must be that the information must be released with the decision.
Coillte is withholding information in this case subsequent to the payment of a fee. A requester does not know;
1) Whether the information to be provided for a fee is the information sought until after a payment has been made. The requester does not get to see the goods before having to make a purchase. The requester is being asked to pay for a Pig-In-A-Poke. This is particularly the case with Coillte who impose their own (often restrictive) interpretation on AIE requests.
2) Whether the charge could be considered reasonable in advance of making payment. In McDonalds you have a very good idea what you are going to get for your money - less so in a restaurant.
The requester is being put on the back foot in having to then make an appeal to challenge the application of fees. This can result in a requester (possibly of limited means) being out of pocket for a significant period of time pending the hearing of an appeal. This could act as a deterrent to some members of the public in terms of seeking environmental information.
Fees are unreasonable
Notwithstanding the above, I wish to raise the Findings and recommendations of communication ACCC/C/2017/147 concerning compliance by the Republic of Moldova, Adopted by the Aarhus Convention Compliance Committee on 25 July 2021, notably paragraphs 85-89 which includes;
85. At the outset, the Committee recalls the importance of access to environmental information to achieve the objective set out in the preamble and article 1 of the Convention, that is to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being. The Committee also considers that the right of access to environmental information is a prerequisite to realize the duty recognized by the Convention on every person, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations
86. Article 4(8) of the Convention provides that public authorities may charge for supplying information, under the condition that any such charge does not exceed a reasonable amount. Given the importance of the right of access to environmental information to achieve the objective of the Convention and also the wording of article 4(8), it is clear to the Committee that the presumption is that such information should be supplied free of charge, but Parties may allow charges provided that they do not exceed a reasonable amount.
87. The Committee further points out that the preamble to the Convention acknowledges that public authorities hold environmental information in the public interest. The Convention does not permit any charge to be levied for simply having access to information and any charges for supplying environmental information must be calculated while recognising and bearing in mind that such information is held in the public interest.
88. When determining whether the amount of any charge under article 4(8) is reasonable, account must be taken of the objective of access to environmental information as outlined above, the public interest in the protection of the environment, the recognition that public authorities hold environmental information in the public interest, the economic circumstances of the public in general and of the requester, and the justification given for the amount charged. It follows that any such charge should be duly explained, reasoned and justified and must not appear unreasonable to the public.
89. Moreover, the Committee underlines that any charges for supplying environmental information must be based on a transparent calculation and while they may include a contribution towards the material costs for supplying the environmental information, they must not include the cost of the initial production, collection or acquisition of the information itself or any other indirect cost. Thus, information held by public authorities should be provided for free or at no more than the reasonable material costs of supplying the requested information (e.g. postage or copying costs). Finally, any charge must not have a deterrent effect on persons wishing to obtain information, effectively restricting their right of access to information.
I contend that the fees applied by Coillte are unreasonable as they involve charging for indirect costs which the ACCC does not consider to fall within the scope of charging.
The AIE Regulations are a statutory responsibility of public authorities therefore it should be expected that at least a proportion of the time taken to process AIE requests should be absorbed as part of the general duties of the staff of the public authority. To seek to be reimbursed for the actual hours spent effectively means that Coillte is not treating the implementation of the Regulations as a statutory duty but as a self-funding activity. It could be argued that, if Coillte is over-estimating the time taken for the work and / or that the staff carrying out the work are paid less than €20 per hour, Coillte is turning a statutory duty in to a commercial activity. This is not reasonable. The regulations require the charging of fees to be reasonable having regard to the Directive.
That final caveat is highly significant – note Preamble 18 and paragraph 86 of ACCC communication ACCC/C/2017/147.
It is fundamentally unreasonable to permit a public authority to charge a requester for the time spent in complying with a statutory duty. It is my view that the application of (particularly excessive) charges by Coillte is intended to act as a disincentive to public access to environmental information.
Reduced Fees
Coillte’s schedule of fees states;
“If you are the holder of a current medical card or are in receipt of social welfare benefit, Coillte may reduce the charge on production of evidence by you, e.g., if you forward a copy of your medical card”.
Coillte only indicates that it ‘may’ reduce the charges, not that it will. This in itself could act as a deterrent to potential requesters.
Coillte routinely seeks advance payment; often without releasing a detailed a Schedule of Records.
Coillte has no commercial mandate for providing environmental information therefore does not fall within the ambit of circumstances where a market based charge is reasonable. Despite this Coillte is seeking to apply a market based charge in advance of release.
I did not pay the fee in this case and so do not have access to the environmental information.”
15. Article 5 of the AIE Directive provides:
“1. Access to any public registers or lists established and maintained as mentioned in Article 3(5) and examination in situ of the information requested shall be free of charge.
2. Public authorities may make a charge for supplying any environmental information but such charge shall not exceed a reasonable amount.
3. Where charges are made, public authorities shall publish and make available to applicants a schedule of such charges as well as information on the circumstances in which a charge may be levied or waived.”
16. Article 15(1) of the AIE Regulations broadly transposes article 5 of the Directive and provides as follows:
“15 (1) (a) A public authority may charge a fee when it makes available environmental information in accordance with these Regulations (including when it makes such information available following an appeal to the Commissioner under article 12), provided that such fee shall be reasonable having regard to the Directive.
(b) Notwithstanding sub-article (a), a public authority shall not charge a fee for access to any public registers or lists of environmental information pursuant to article 5(1)(d).
(c) Notwithstanding sub-article (a), a public authority shall not charge a fee for the examination in situ of information requested.
(d) Where an applicant examines information in situ and wishes to obtain copies of that information, a public authority may charge a fee, consistent with the list of fees specified under article 15(2) for the provision of such copies.”
17. The Directive makes it clear that public authorities are entitled to charge a fee for the supply of environmental information provided the fee does not exceed a reasonable amount. Article 5(2) is transposed into national law by article 15(1)(a) of the Regulations which provides that public authorities are entitled to charge a fee so long as the fee is reasonable. The question to be addressed in this appeal is whether the fee of 50EUR, imposed by Coillte in this case for the supply of information, is reasonable as per the requirements of article 5(2) of the Directive transposed by article 15(1) of the AIE Regulations. Neither the Directive nor the Regulations define what is “reasonable” in this context, therefore to determine what is meant by “reasonable” I have had regard to the relevant case law. The question of what is reasonable in this context will also encompass the question of what a public authority is and is not permitted to charge for when supplying information.
18. In its original decision and internal review Coillte set out the basis on which it calculated the 50EUR fee. This calculation included the time it spent on search and retrieval of the relevant records. It stated:
“Search and retrieval time – 2.0 hours @ €20ph (time spent locating relevant files/data sources and collating relevant documents contained on those files/data sources) €40 Compilation time – 0.5 hours @ €20ph (time spent examining the documents, considering exemptions, completing redactions if required, and scheduling the records) €10
Total €50”
19. In C-71/14 East Sussex County Council v Information Commissioner, the Court of Justice found that all of the factors on the basis of which the amount of the charge is calculated must relate to the actual costs of supplying the requested information. The Court found that this may include the costs attributable to the time spent by the staff of the public authority concerned on answering an individual request for information, including the time spent on searching for the information and putting it in the form required.
“the costs of ‘supplying’ environmental information which may be charged under Article 5(2) of Directive 2003/4 encompass not only postal and photocopying costs but also the costs attributable to the time spent by the staff of the public authority concerned on answering an individual request for information, which includes the time spent on searching for the information and putting it in the form required.” (paragraph 39)
20. The appellant does not think it is reasonable for Coillte to charge for search and retrieval time and he says it “creates a perverse incentive (particularly for a public authority, like Coillte, which has a commercial remit) to not actively disseminate environmental information.” To this end he has referenced the findings and recommendations of communication ACCC/C/2017/147 concerning compliance by the Republic of Moldova, adopted by the Aarhus Convention Compliance Committee on 25 July 2021 which stated that charges “must not include the cost of the collection or acquisition of the information itself or any other indirect cost.” The appellant states “I contend that the fees applied by Coillte are unreasonable as they involve charging for indirect costs which the ACCC does not consider to fall within the scope of charging.”
21. By way of background, the ACCC was established under Article 15 of the Aarhus Convention and serves as a compliance mechanism whereby Parties to the Convention or members of the public may, for example, bring a concern regarding the implementation of the Convention to the Committee for consideration. It is a non-confrontational, non-judicial and consultative mechanism established to review compliance by Parties to the Convention. While it is useful to refer to, the question before me is whether the public authority in this appeal acted in accordance with article 5(2) of the Directive, and applied article 15(1) of the AIE Regulations correctly, and in deciding this I am bound by the relevant case law. As I have set out above the ECJ in East Sussex clearly stated that charging for time spent on search and retrieval of records is permitted therefore I find that Coillte was entitled to take this into account when calculating the charge.
22. The appellant asserts that Coillte’s failure to organise its information efficiently has resulted in an excessive amount of time to process his request. He said in submission to this Office:
“Coillte is obliged to organise the information that it holds in a form or manner that facilitates ready reproduction and accessibility to the public. If Coillte cannot locate the six Operational Monitoring Records relating to is Forests in County Cavan for the month of January 2023 in less than 2 hours then I would suggest that Coillte does not have its Operational Monitoring Information maintained in a manner that is consistent with the Directive and the Regulations.”
23. Article 15(1) makes it clear that the question of what is a reasonable fee must be approached having regard to the requirements of the AIE Directive. Article 3(5) of the Directive requires Member States to ensure that “officials are required to support the public in seeking access to information” and that “the practical arrangements are defined for ensuring that the right of access to environmental information can be effectively exercised”. Article 7(1) seeks to ensure that public authorities are required “to organise the environmental information which is relevant to their functions and which is held by or for them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology, where available”.
24. With articles 7(1) and 3(5) of the Directive in mind, it is clear that AIE requests of a general nature often are of a kind that one would expect to either be proactively published by the public authority or organised and maintained by the public authority in a manner that enables its easy dissemination on request. In such circumstances I do not think it would be reasonable to allow a public authority to rely on its own failure to adequately organise its information to justify the imposition of a charge on the appellant in respect of work which arguably would not have been required had proper document management arrangements been in place.
25. The Advocate General in East Sussex clarified that when calculating a fee for the supply of information, a public authority cannot pass on the costs of a failure to comply with other parts of the Directive to requestor:
“Moreover, an authority may not rely on its failure to comply with its obligations under, for example, Articles 3 and 7 of Directive 2003/4 in order to justify charging an applicant under Article 5(2) because, for example, it is holding information as raw data and has not yet organised that information (as required) in a manner that renders access possible.”
26. I consider the information at issue here, namely Operational Monitoring Records for works in Coillte forests with the prefix CN during the month of January 2023, to be quite far on the specific end of the spectrum. I am not persuaded it is information that I would necessarily expect Coillte to be proactively publishing or hold in a way that enables easy dissemination. Having said that, I must stress that there is nothing to stop the public authority from publishing such information regularly, thereby avoiding the need to process AIE Requests seeking such specific information. Indeed, greater proactive publication of environmental information is a significant tool in managing the number of AIE requests made on such matters, and ultimately would reduce the number of appeals to this Office. I am mindful that the role of this Office under article 12(5), is to review the internal review of the public authority with a view to affirming, varying or annulling the decision. It is not the Commissioner’s role to direct public authorities to organise their files in a way which facilitates active dissemination – rather this obligation falls under the general duties of a public authority (article 5 of the AIE Regulations). But as East Sussex makes it clear that public authorities cannot pass its failure to comply with its obligations under, for example, Articles 3 and 7 of the AIE Directive, in order to justify charging an applicant, it is something I have had to consider carefully when deciding on the reasonableness of the fee set out by Coillte in this case. It follows that I am not persuaded that Coillte when calculating its charge in this case was trying to justify any failure to comply with its obligations under the AIE Directive.
27. As I have set out above, Coillte was entitled to factor in search and retrieval costs (which it did), and I do not consider that in setting the charge it is trying to justify any failure to comply with its obligations under the AIE Directive. The next step is to determine whether the charge amount itself set by Coillte exceeds a reasonable amount. East Sussex found that the expression “reasonable amount” in the AIE Directive does not include any amount that may have a deterrent effect on persons wishing to obtain information or that may restrict their right of access to information. The Court found that “in order to assess whether a charge…has a deterrent effect, account must be taken both of the economic situation of the person requesting the information and of the public interest in the protection of the environment. That assessment cannot therefore relate solely to the person’s economic situation but must also be based on an objective analysis of the amount of the charge. To that extent, the charge must not exceed the financial capacity of the person concerned, nor in any event appear objectively unreasonable” (paragraph 43).
28. To determine whether the charge imposed by Coillte in this case has a deterrent effect on the appellant or restricts his right of access to information, account must be taken of his economic situation. Coillte, in both its original decision and internal review, stated that it may reduce the charge if the appellant produces evidence that he is a medical card holder or in receipt of social welfare benefit. The appellant in this appeal is a medical card holder. Additionally, I note that on its website under its published schedule of fees Coillte says it may charge a reduced fee of 6EUR per hour having regard to the means of the applicant. Based on the information Coillte has provided regarding the length of time it took to process this request (2.5 hours), this would amount to a charge of 15EUR for the information requested by the appellant. I consider that in providing for such a reduced rate, Coillte have endeavoured to take into account the economic situation of the requestor.
29. The appellant has so far failed to engage with Coillte on this issue of a reduced rate, which would likely have led to a significant reduction in the fee proposed based on the fact that he is a medical card holder. The appellant said in his submissions to this Office that Coillte merely said it “may” reduce the fees on production of a medical card, not that it “will”, and that this could act as a deterrent to requesters. It is unclear why Coillte has used the word “may” and I agree wording such as that on the OCEI website might be more appropriate: “….If you have a medical card - or you are the dependent of someone who holds a medical card - the cost is €15.” But in circumstances where Coillte invited the appellant to engage on the point of whether he had any concerns about the affordability of the charge, and made it clear that he may be entitled to a reduced rate in the original decision, internal review and on its website, I find that Coillte did have regard to the appellant’s economic circumstances - as East Sussex requires it to do. It is unfortunate the appellant has not engaged with Coillte on this point.
30. For the second limb of the test to determine whether the charge in this case has a deterrent effect, I need to consider whether the amount charged is objectively reasonable. Coillte has set out the basis on which the charge was calculated – the appellant was charged a fee of 20EUR per hour for 2.5 hours of work. Coillte has set out what was involved in this work and how the 2.5 hour time frame was arrived at in some level of detail. I consider the timeframe of 2.5 hours as set out by Coillte for processing this information request, bearing in mind the breakdown it has given in how it arrived at this timeframe, does not to my mind seem disproportionate or excessive. Furthermore, I would point out that the steps in the process detailed by Coillte are of the type that this Office would expect to be undertaken in response to a request for environmental information.
31. In his Opinion in Commission v Germany C-217/97 which concerned Directive 90/313/EEC (the predecessor of the current AIE Directive), Advocate General Fennelly considered that the notion of what is “reasonable” must be interpreted in light of the general scheme and purpose of the Directive. In light of this, “the question of whether the charges for the supply of information are ‘reasonable’ must be judged from the perspective of the member of the public requesting the information, rather than that of the public authority” (paragraph 23).
32. Drawing on this Office’s experience and the Commissioner’s various statutory remits, I consider that the average member of the public would not necessarily find 50EUR to be an unreasonable sum of money in the circumstances of the case, including the time spent by Coillte in processing the request and in the context of other comparable expenses that members of the public incur on a daily basis. For example, an appeal to this Office in the absence of a medical card or other such mitigating factor incurs a charge of 50EUR. Equally, I find that a fee of 6EUR per hour (so 15EUR in total) which is likely to be available to the appellant, being the holder of a medical card, is also objectively reasonable.
33. While not appropriate to make a direct comparison, it is also worth considering that the fees in dispute in East Sussex for the supply of information relating to property charges (a total charge of approximately 23EUR) and in the analogous case of C-216/05 Commission v Ireland, concerning fees for participation in the environmental impact assessment procedure (20EUR in procedures before local authorities and 45EUR in procedures before An Bord Pleanála), were not too dissimilar to the fee at issue in this appeal. I am mindful that the aforementioned cases were all unique in their circumstances, were some years ago now, and account naturally should be taken of the fact that currency values can fluctuate over time due to a variety of factors.
34. The test set out by East Sussex also explains that when assessing the reasonableness of the charge “account must be taken… of the public interest in the protection of the environment”. Coillte has provided this Office with the records at issue, and I have considered the public interest in the protection of the environment of the information within the records. In general, if there is a high public interest, this may call into doubt the reasonableness of the charge. But in the circumstances of this case I do not consider the public interest in the information at issue – “Operational Monitoring Records for works in Coillte forests with the prefix CN during the month of January 2023” - renders the fee proposed by Coillte unreasonable.
35. For the reasons I have set out, in the circumstances of this case I am not persuaded that the fee imposed by Coillte is unreasonable either subjectively or objectively – the test set out by East Sussex to determine whether the charge imposed has a deterrent effect on persons wishing to obtain the information. It follows that I find that the fee of 50EUR is reasonable and Coillte has acted in accordance with article 5(2) of the AIE Directive and article 15(1) of the AIE Regulations.
36. The appellant is unhappy that Coillte is requiring payment before it will release the records. Coillte has already carried out the work of identifying and collating the relevant records which are ready to be released to the appellant upon payment of the fee – and it has sent a schedule of records to the appellant. I have found the fee in this case is reasonable and Coillte’s position that upon receipt of payment it will release the information does not seem to be contrary to the Regulations. What Coillte has offered in this case is to supply the records to the appellant once payment is received. It is not requiring advance payment before it carries out the work of processing the request, which is what I consider the reference to advance payment in the AIE directive to refer to. If the appellant is unhappy with the information for whatever reason once it is released, he has the option to bring an appeal to this Office.
37. Having carried out a review under article 12(5) of the AIE Regulations, I affirm Coillte’s decision to charge a fee of 50EUR under article 15(1). Coillte and the appellant should liaise directly on whether the appellant would like to proceed with the request.
38. 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