Decision
Mr F and Coillte
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144200-P5J0S4
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144200-P5J0S4
Published on
21 February 2025
1. The appellant made the following (reformulated) request to Coillte on 27 September 2023.
“a) Information on all sites on which Coillte has engaged (formally or informally) external Registered Foresters to identify land with a view to purchase for afforestation.
“b) Information on all sites on which Coillte has engaged external Registered Foresters to carry out the Form 1 application process on lands where Coillte has an interest in the subsequent purchase of the lands.
“c) Information on the rationale for using third party foresters to carry out the work in (a) and (b) above on behalf of Coillte.”
2. Coillte issued its original decision on 26 October 2023. In relation to points a) and b) of the request, it stated it had “a list that contains information relating to these elements of the request”, which it would grant access to, “subject to payment of applicable charges” set out further in the letter. This charge, based on €20 per hour for search, retrieval, compilation and copying, “as detailed on [Coillte’s] website”, was €40, consisting of 1.5 hours of time spent locating relevant files/data sources and collating relevant documents contained on those files/data sources (at a cost of €30) and 0.5 hours of time spent examining the documents, considering exemptions, completing redactions if required, and scheduling the records (at a cost of €10). The letter set out the several methods of payment possible and stipulated that payment must be made prior to release of the information within a timeframe of 30 days. It further stated that, upon production by the appellant of a medical card or proof of a social welfare payment, “Coillte may reduce the charge”. It cited article 15 of the AIE Regulations as allowing a public authority to charge a reasonable fee for the cost of supplying environmental information and applied a charge on that basis. In respect of point c) of the request, it stated that it had been unable to locate any records relevant to it, having taken all reasonable steps to locate the requested information and establish whether it existed. For this reason, it refused this part of the request under article 7(5) of the AIE Regulations, giving some detail in regard to the searches made for the information.
3. The appellant requested an internal review from Coillte on 27 October 2023, on the basis that Coillte’s schedule of fees is not reasonable, that the meaning of “compilation” in the decision was unclear, that it was inconceivable that Coillte would engage third party foresters for the purchase of land and to carry out a “Form 1 application process” and that adequate steps had not been taken to identify information that fell within the scope of his request.
4. On 23 November 2023, Coillte issued its internal review decision, affirming the original decision. In respect of parts a) and b) of the request, it reiterated the point that the information it held would be released to the appellant upon payment of the requested fee. In respect of part c) of the request, it expressed uncertainty as to the meaning of the phrase “information on the rationale” used in the request but satisfaction that all reasonable steps had been taken to locate any such information and confirming that no material records existed with this information.
5. The appellant appealed to this Office, and made a preliminary submission, on 28 November 2023.
6. I am directed by the Commissioner 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:
• 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); and
• the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
• decisions by the European Court of Justice in case C-71/14, East Sussex County Council v Information Commissioner [East Sussex]; case C-217/97, Commission of the European Communities v Federal Republic of Germany [Commission v Germany, including the Opinion of Advocate General Fennelly]; and C-216/05, Commission of the European Communities v Ireland [Commission v Ireland].
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. 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. The scope of my review in this appeal is twofold, as follows.
9. In respect of parts a) and b) of the request, Coillte has identified material relevant to the request but has stipulated a requirement for payment of a fee before its release. Article 11(5) of the AIE Regulations sets out that a reference in the article to a request being refused, in whole or in part, 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. The appellant contends that the stipulated fee is not reasonable.
10. In respect of part c) of the request, Coillte maintains that it holds no information that is relevant to it and has refused it on this basis arising from article 7(5) of the AIE Regulations.
11. Accordingly, the scope of my review is confined (i) to whether or not parts a) and b) of the request have been dealt with in accordance with article 5(2) of the AIE Directive (implemented by article 15(1) of the AIE Regulations); and (ii) to whether Coillte was justified in refusing part c) of the request under article 7(5) of the AIE Regulations.
The Position of the Parties – the Appellant
Parts a) and b) of the Request including the matter of the charging of a fee by Coillte
12. In his internal review request of 27 October 2023 and in submissions to this Office made with his appeal, the appellant responded to Coillte’s requirement of payment of a fee prior to releasing information pertinent to these parts of his request by stating that the schedule of fees provided to him in Coillte’s initial decision is not consistent with findings and recommendations of the Aarhus Convention Compliance Committee (ACCC) and, as a consequence, are not reasonable. Specifically, he refers to paragraph 89 of the findings and recommendations of the ACCC, adopted on 25 July 2021, which textually provides as follows:
“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). Lastly, any charge must not have a deterrent effect on persons wishing to obtain information, effectively restricting their right of access to information.”
13. The appellant maintains that, even if the Commissioner should consider that fees do apply, the language of the AIE Regulations gives to understand that only in exceptional circumstances can a public authority seek payment upfront.
14. He notes also that the Commissioner has taken a view on the matter of fees, his own view being that a decision by the European Court of Justice in Case C-71/14, East Sussex County Council v Information Commissioner, relating to charges required by a public body, is a bad decision and needs to be challenged as it is fundamentally in conflict with the principles of the Aarhus Convention. I elaborate on this case at paragraphs 37, 50 and 51 below.
15. In respect of the substantive response of Coillte to the appellant’s request for information at parts a) and b) of his request, he maintains that its decision to offer him only a list of sites does not correspond to “the full extent of what was requested” which was “more broadly framed.” His appeal to this Office submits that the “information indicated to be provided is a diminished version of what was requested. Not all information requested has been provided.”
Part c) of the Request and the matter of no information held by Coillte
16. In his internal review request, the appellant submitted that the information sought in this part of the request, though falling within scope, had not been identified. He expressed dissatisfaction that steps had not been taken to identify the requested information.
17. In his appeal, the appellant postulates that the reason why no information pertaining to this part of his request has been identified is because no searches were carried out. He finds it difficult to believe that no records of the decision by Coillte to use third parties to carry out work indicated in parts a) and b) of the request could be identified. He does admit, however, that his premise is speculative in nature.
18. In submissions to this Office, the appellant draws attention to the fact that in its internal review decision, Coillte states that “documents in relation to [the] Request do not exist in Coillte.” He notes that his request is for information and not specifically ‘documents’ and that information can exist in forms other than in documents. He makes further allusion to the fact that the statement does not address the possibility that the information may be held on behalf of Coillte, or for it, by a third party, alluding to the fact that environmental information held for, or on behalf of a public authority by another is also subject to the mandate at article 7(1) of the AIE Regulations of being made available upon request. I shall comment on these points at paragraphs 69 and 70 below.
The Position of the Parties – Coillte
Parts a) and b) of the request including the matter of charging a fee
I Adequacy of the information to be provided
19. The matter of the adequacy of the information that Coillte indicated it was willing to release to the appellant in respect of parts a) and b) of his request (upon payment of a fee) arose only in his appeal to this Office, that is, it was not raised in his internal review request to Coillte. The matter was conveyed by this Office to Coillte for comment. Accordingly, Coillte’s response to his assertion that the information it had identified consisted only of a list of sites, which did not correspond to “the full extent of what was requested”, that the “information indicated to be provided is a diminished version of what was requested and that “[n]ot all information requested has been provided”, was made in submissions to this Office.
20. That response was that the assertion of the appellant was an inappropriate use of the appeals system under the AIE Regulations “as it does not allow for an objective consideration of the key matter at issue, being the adequacy of the environmental information [to be] provided.” Coillte maintains that any challenge to the adequacy of the information that it had identified in respect of these parts of the appellant’s request could not be made until the information had been released and examined and considered by the appellant.
II The matter of charging a fee
21. Coillte submits that its initial decision-maker was acting wholly within her powers to levy charges for the provision of environmental information falling within the request, for the reasons given in the following paragraphs and that it was entitled to charge for the search, retrieval and compilation of information the subject of parts a) and b) of the request.
22. In both its internal review decision and submissions to this Office, Coillte refers to article 15(1)(a) of the AIE Regulations, which provides that a public authority may charge a fee for the provision of environmental information, provided such fee is reasonable having regard to the AIE Directive.
23. In further support of its charge, Coillte refers to Recital 18 of the Directive, which provides, inter alia, that a reasonable charge may not exceed the actual costs of producing information to be provided, that an advance payment may be required of requesters and that a schedule of charges should be published and made available to them together with information pertaining to the circumstances in which a charge may be levied or waived.
24. Coillte goes on to seek reliance on article 5 of the Directive which essentially mirrors the content of Recital 18, given in the paragraph above.
25. While noting that its internal review decision is a review of its initial decision only, and is not a response to information that was not submitted in the request for information, Coillte makes reference to the appellant’s allusion in his internal review request to the findings of the Aarhus Convention Compliance Committee (ACCC) on the matter of charging. As noted at paragraph 12, these findings relate to a case concerning compliance with the Aarhus Convention by the Republic of Moldova, denominated the “Moldova Findings” by Coillte.
26. The case relates to the Convention’s framework for costs charged for environmental information by public authorities. While the findings state that there is a presumption that such information be provided free of charge, Coillte refers to article 4(8) of the Convention, which states that public authorities “may allow charges provided they do not exceed a reasonable amount”, that this requirement is safeguarded by the Convention “by obliging public authorities to make available to applicants a schedule of charges that may be levied, indicating the circumstances in which they may be levied or waived and when the supply of information is conditional on the advance payment of such a charge.”
27. Coillte maintains that its charge is reasonable, as it is not excessive, relates directly to the work involved in producing the environmental information and is broken down in a simple schedule.
28. By way of contrast to the reasonableness of its charge in this case, Coillte alludes to a previous decision of the Commissioner, Open Focus and Sligo County Council, in which it was held that a fee charged by a public authority was not in compliance with article 15 of the AIE Regulations, as the public authority had not made available to the public details of its charges, how they were calculated and the circumstances in which they would be waived. Coillte maintains that its transparency in light of the exigencies of the AIE Regulations supports its argument that its charge is reasonable, noting that its charging rates are consistent and available on its website and that two hours of work is a reasonable amount of time for the work expended on examining the documents in this case and on considering exemptions, completing redactions if required and scheduling the records.
29. In its submissions to this Office, Coillte makes reference to the finding in European Court of Justice case East Sussex [Case C-71/14], that all factors upon which the amount of a charge is calculated must relate to the actual costs of supplying the requested information. Coillte is satisfied that the charge in this case was correctly calculated and applied based on the actual time spent by its staff on the request. Coillte notes the Court’s finding in that case 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 and that assessing a charge in this light requires an assessment of the economic situation of the requester and of the objective analysis of the amount of the charge. Coillte submits that the charge in this case cannot reasonably be assessed as having a deterrent effect given the level of the charge and the express offer to reduce the charge having regard to the appellant’s means, which would have resulted in a reduction of the charge.
The Charging of a fee by Coillte
30. Article 5 of Directive 2003/4/EC 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.”
31. 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.”
32. The question to be addressed here is whether the fee of €40, imposed by Coillte in this case, was reasonable in the context of the requirements of article 15(1) of the AIE Regulations.
33. In his Opinion in Commission v Germany 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 the information are ‘reasonable’ must be judged from the perspective of the member of the public requesting the information, rather than from that of the public authority” (paragraph 23).
34. The Advocate General’s view was that, unlike most other categories of publicly held information, the likely cost will inevitably have a direct bearing on the extent to which the public will use the right of access. He considered that “requiring the individual seeker of information to bear what is effectively the entire cost of processing his request would amount to restricting the enjoyment of the right of access, in practice if not in law, to those who have a direct interest in the information, contrary to the clear exclusion of the need for such an interest” (paragraph 25).
35. He also noted that “[s]ince access to environmental information is in the public interest, it follows that the public authorities, and, ultimately, the general public through the State budget, should bear that part of the burden of making this information available which is represented by the time and effort of public officials” (paragraph 24).
36. He was “of the opinion that Article 5 [of the AIE Directive] should be interpreted as allowing the Member States to charge either a standard scale of fees, which need not be based directly on the direct costs, or a charge based directly on such costs” but that “in neither case may the fee or the charge exceed an amount which is equivalent to reasonable, direct costs, or be such as to permit the charging out of part of the cost and time of a public authority in performing a public duty” (paragraph 32).
37. In Case 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. 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. Coillte is satisfied, expressed in submissions to this Office, that the charge in this case was correctly calculated and applied based on the actual time spent by its staff on the request.
38. The Court 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.” Coillte cites with approval the Court’s dictum in this case that a “charge must not exceed the financial capacity of the person concerned, nor…appear objectively unreasonable” (paragraph 43). Coillte submits, in its submissions to this Office, that the charge in this case cannot reasonably be assessed as having a deterrent effect given the level of the charge and the express offer to reduce the charge having regard to the appellant’s means, which would have resulted in a reduction of the charge. For this reason, its view is that the charge was not unreasonable.
39. To determine whether the charge imposed by Coillte in this case has a deterrent effect on the person wishing to obtain the information or that may restrict his access to information, I first must take account of the economic situation of the requestor. Coillte, in its original decision letter, suggested that if the appellant was a medical card holder or was in receipt of social welfare benefit, “it may reduce the charge on production of evidence”. I consider that in providing for such a reduced rate, Coillte is taking into account the economic situation of the requestor.
40. As noted in the appellant’s appeal to this Office, he is a medical card holder. However, in its submissions to this Office, Coillte maintains that the appellant did not engage with Coillte on this issue which would likely have led to a significant reduction in the fee proposed.
41. There is an argument that Coillte may be aware that the appellant is a medical card holder and should have automatically proceeded to calculate the charge at the reduced rate which, according to Coillte’s website is €6 per hour or €12 for two hours of work. However, the circumstances of an individual can change over time, and I am not of the view that Coillte acted unfairly in requesting engagement from the appellant on this point before the reduced fee was considered. In circumstances where Coillte has made it clear that the appellant may be entitled to a reduced rate, yet the appellant has not engaged on that issue, I find it difficult to accept that Coillte has not taken account the appellant’s economic circumstances. It is unfortunate the appellant has not engaged with Coillte on this point.
42. 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 charge is objectively reasonable. The appellant asserts that Coillte’s schedule of fees is not reasonable as they are inconsistent with the findings and recommendations of the ACCC.
43. Coillte has set out the basis on which the charge was calculated. The appellant was charged a fee of €20 per hour for two hours of work, subject to a reduction. Coillte has set out what was involved in this work and how the two-hour time frame was arrived at in some level of detail. In its submissions to this Office it noted that it had consulted further with the relevant subject matter experts, the initial decision-maker and the AIE team to confirm the tasks carried out in satisfying parts a) and b) of the request, as follows:
“a. Engagement with senior members of Coillte, who are the subject matter experts, for instruction;
b. Retrieval of the information likely falling within the request from Coillte’s database;
c. Review of that information to ensure it adequately satisfied the request;
d. Review to consider any necessary redactions;
e. Consideration of any applicable exemptions under the AIE Regulations;
f. Compiling the information in anticipation of disclosure.”
44. It is Coillte’s position that the charge is reasonable considering the actions taken, described above, in search, retrieval and collation; that the AIE team have been reasonable in its calculation of time applied to the actions; and is satisfied that it worked as efficiently as possible to respond to the request. It maintains that its position in regard to the reasonableness of the charge is supported by the fact that it is transparent regarding its charges under the AIE Regulations and was clear in all communications with the appellant as to the extent of the charges and the calculation of same.
45. The appellant asserts that the ability of a public authority to charge a fee for time spent in search and retrieval “acts as a disincentive to organise its information for ease of dissemination.”
46. Coillte’s view on this matter, however, is that the “information referable to part a) and part b) of the Request is not environmental information that Coillte could reasonably be expected to publish … There was a need to carry out work to satisfy part a) and part b) of the Request … the imposition of [the] charge does not in any way diminish Coillte’s commitment to ensuring active dissemination of key environmental information.”
47. I have considered the specific nature of the information sought at parts a) and b) of the request, as well as the submissions of the parties to this appeal., I am not persuaded that the information requested is information that Coillte could be expected to proactively publish or hold in a way that enables easy dissemination. It follows that the timeframe of two 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 am of the view 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.
48. I will however note that the decision letter provided by Coillte describes the 0.5 hours of compilation time as “time spent examining the documents, considering exemptions, completing redactions if required, and scheduling the records”. Having reviewed the information that Coillte intends to release to the appellant in this case, it does not appear to me that any exemptions were considered relevant, and no redactions were applied. However, I still consider that 30 minutes of compilation time was reasonable in the circumstances of this case, having regard to the information to be released. Coillte should ensure that its decision letters contain an accurate reflection of the work carried out in each individual case. Coillte should also note that in general, I do not consider it reasonable to charge a requester for any significant amount of time spent by a public authority applying exemptions to information that it does not intend to release.
49. Turning to the issue of the fee itself, Advocate General Fennelly’s Opinion in Commissioner v Germany made it clear that overall reasonableness of a fee must be judged from the perspective of members of the public, not of public authorities. Drawing on my experience from my various statutory remits, I consider that the average member of the public would not necessarily find €40 to be an unreasonable sum of money in the context of the 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 €50. Needless to say, if I find that a fee of €40 is reasonable in the circumstances, equally I find that a fee reduction that is available to the appellant should he wish to take up the offer is also objectively reasonable.
50. While not appropriate to make a direct comparison, it is also worth considering that the fees in dispute in Case C-71/14, East Sussex County Council v Information Commissioner, for the supply of information relating to property charges (a total charge of approximately €23) and in the analogous case of C-216/05, Commission v Ireland, concerning fees for participation in the environmental impact assessment procedure (€20 in procedures before local authorities and €45 in procedures before An Bord Pleanála), were not dissimilar to the fee at issue in this appeal. I am mindful that the aforementioned cases were all unique in their circumstances, pertain to periods in the past and that account naturally should be taken of the fact that currency values can fluctuate over time due to a variety of factors.
51. Taking all of the above into account, in the circumstances of this case I am not persuaded that the fee imposed by Coillte is unreasonable either subjectively or objectively. In other words, it satisfies the test set out by East Sussex to determine whether a charge imposed has a deterrent effect on persons wishing to obtain the information or that may restrict their right of access to information. It follows that I find that Coillte was justified in charging a fee of €40 in this case.
52. One further point I must consider is the matter raised by Coillte in its submissions to this Office of a previous decision of mine in case OCE-110723- R2S7B8 , an appeal in which I found against the public authority, but for reasons that do not apply in this case, namely failure to set out the basis on which the charge was calculated and failure of consistency between original and internal review decisions in regard to the basis of the charge. For its part, Coillte submits that it has clearly set out, in its email acknowledging the appellant’s request and the invoice supplied to him with the original decision, the basis of the charge. it adds that the basis of the charge is also available to the public at large on its website. It notes, further, that it has been consistent in documenting the work undertaken by its employees in its original and internal review decisions. I agree that the circumstances in that previous decision do not obtain in this appeal and that the basis of Coillte’s charge has been consistent throughout.
53. For the reasons I have set out in detail above, I do not consider the fee imposed by Coillte in this case to be unreasonable and do not consider it to be a deterrent. I further note that Coillte has confirmed to this Office that if, subsequent to this decision, the appellant provides it with a copy of his medical card, it will provide the information requested at a reduced hourly rate.
54. The appellant asserts in submissions that there is no mechanism to challenge the cumulative impact of charges applied by a public authority for search and retrieval, and that, therefore, “prohibitive expense [for requesters] is not precluded”.” He states that the East Sussex decision effectively caps the cumulative amount of environmental information that an individual can source based on their means and alleges that Coillte is acting in this way to suppress the dissemination of environmental information. This decision deals with the circumstances of this particular appeal only, and while I have found the fee proposed by Coillte to be reasonable in this instance, I make no determination on whether fees charged in relation to any other AIE requests made by the appellant or any other requestor are justified.
55. The role of the Commissioner under article 12(5) of the AIE Regulations is to review the internal review decision made by a public authority in relation to a particular request, and to affirm, vary or annul that decision. I consider that the question before me is the reasonableness of the particular fee charged in this instance in relation to this particular request. In considering whether this fee is reasonable having regard to the AIE Directive (as required by article 15(1)(a) of the AIE Regulations), I do not consider that it would be appropriate for me to take into account charges in relation to previous AIE requests made by the appellant for information held by or for Coillte.
56. There is nothing in the AIE Regulations, or AIE Directive or in East Sussex (the leading ECJ authority on fees) that suggests that when considering the reasonableness of a fee, account can or should be taken of charges imposed in relation to previous AIE requests made by the appellant. Due to this, I consider that the reasonableness of each individual fee should be assessed on a case by case basis.
57. However, while I do not consider it appropriate to consider the cumulative effect of charges in relation to previous AIE requests on the appellant - the ECJ in East Sussex is quite clear that account should be taken of the economic situation as a whole of the requester when a public authority considers the reasonableness of a fee in relation to environmental information. I have established above that Coillte has done that in this case.
58. Finally, the appellant asserts that Coillte’s requirement for the charge to be paid in advance of the information being released is contrary to the Directive. Recital 18 of the Directive clearly states that requests for the charge to be paid in advance of the information being released is allowed in limited circumstances. It clearly does not say that public authorities are not allowed to do this, rather that there are limits to doing so.
59. Recital 18 of the Directive (which is non-binding but gives insight into the intentions of the 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.”
60. I have found that the charge proposed by Coillte in this case (€40 with the likelihood of a reduction if the appellant provides Coillte with a copy of his medical card) to be reasonable. With this in mind and looking at the facts before me, I see no reason why the requirement of an advance payment in this case should be contrary to the provisions of the Directive, which is Coillte’s position in this appeal. The appellant is of the view that “only in exceptional circumstances can a public authority seek payment up front.” It is important to note that 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. 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. While this decision deals with the imposition of a fee in this appeal only, nonetheless Coillte should bear in mind when processing future AIE requests, that recital 18 of the Directive states that instances where advance payment will be required should be limited. Again, this of course will be decided by me on a case by case basis having regard to the AIE Directive and the merits of each individual appeal.
61. A final point that I wish to address is the appellant’s assertion that, as he has not been provided with a schedule of records by which to judge the nature of the information to be provided to him. I note firstly that while the creation of a schedule of records can be considered best practise, it is not a requirement under the AIE Regulations or Directive. Secondly, it should be remembered that the ability of a public authority to charge a fee is for the carrying out of work, for example in search, retrieval and compilation, in response to a request, prior to providing information. This is the reason for a charge. A charge is not, as the appellant seems to suggest, a charge for the information itself, rather it is for all the work that has been done by a public authority to be able to furnish the information to a requester. For this reason, I respectfully disagree with the appellant’s assertion in this matter.
Adequacy of the Information to be provided
62. At paragraphs 15, 19 and 20 above, I have noted the position of the parties in respect of the adequacy of the information to be provided by Coillte to the appellant (upon payment of a fee) in respect of parts a) and b) of his request. While the appellant regards the information to be provided as “only a list of sites” which in his view constitutes “a diminished version of what was requested” and that “[n]ot all information requested has been provided”, Coillte maintains that any challenge to the adequacy of the information that it has identified in respect of these parts of the request cannot be made until the information has been released and examined and considered by the appellant.
63. I note from the original decision letter that the appellant was informed that the information to be provided consists of “a list that contains information relating to these elements of the Request” [emphasis added]. Given that the appellant has not yet had sight of the information to be provided, and the issue in this appeal relates to the fee charged by Coillte, I consider that I cannot make a finding as to the adequacy or otherwise of the information to be provided at this point. If the appellant is not satisfied with the information provided, it will be open to him to appeal again to this Office, or indeed to make a further, more specific request to Coillte. I note that article 12(4)(b) of the AIE Regulations allows the Commissioner to extend the time for making an appeal where in the circumstances of a particular case it is reasonable to do so.
Adequate searches for information by Coillte
64. As Coillte has refused information sought in part c) of the appellant’s request on the basis that it does not exist following a search exercise carried out by the public authority, it is necessary for me to consider whether Coillte has complied with articles 7(1) and 7(5) of the AIE Regulations. Cumulatively, these articles require public authorities to make available to requesters any environmental information relevant to their requests and, should they not hold such information, to inform requesters of this fact as soon as possible. In cases where public authorities assert that requested information does not exist or is not held by them, in ordinary course a prerequisite to show compliance with these articles is that they carry out, and demonstrate they have carried out, adequate searches for the requested information.
65. As stated above, the appellant has speculated that the reason no information associated with this part of his request has been identified is because no searches were carried out by Coillte, expressing dissatisfaction that steps had not been taken to identify the requested information.
66. In both its original and internal review decisions, Coillte has explained the methodology it employed to search for the requested information. In its original decision letter to the appellant, the decision-maker stated as follows:
“I am satisfied that I took adequate steps to try to identify and locate relevant environmental information. On 03.10.2023 and 09.10.2023, a member of the AIE Team held calls with subject matter experts to discuss the Request and ascertain what information exists. It was confirmed to the AIE Team during those discussions that information relating to the rationale for using third party foresters to carry out work related to Points A and B of the Request does not exist.”
67. In its internal review decision, it explained that information of the type requested “might be contained within a strategic document, memo, telephone conversations and/or within email correspondence. This type of information would be searched for on the; cloud-based storage and Office 365/emails, and by reference to direct telephone conversations/meetings with key staff/manager from the relevant business division.” It went on to state that there was no necessity to conduct searches in this instance on its system as it had been confirmed by senior subject matter experts in Coillte that this information does not exist. It was these parties, it asserted, who made the decisions to engage third party foresters to carry out this work on Coillte’s behalf and, as they had confirmed their satisfaction that no such records exist, there was no requirement “to carry out system searches or keyword searches.”
68. It went on to submit that:
“In this instance, as noted, in order to determine if any material records relevant to the Request exist, detailed discussions were held with two subject matter experts, on two separate occasions, who are responsible for land acquisition for the purpose of afforestation in Coillte to ascertain if this information exists:
“(i) On 3 October 2023, and 9 October 2023, a member of the AIE Team held calls with the Commercial Director and the Property Sales Team Leader to discuss the Request and ascertain what information exists. It was confirmed to the AIE Team during those discussions that information relating to the rationale for using third party foresters to carry out work related to Points A and B of the Request does not exist. (ii) A subsequent meeting was held with the Commercial Director and the Property Sales Team Leader on the 13 November 2023.
“Following these detailed enquiries and discussions with the relevant subject matter experts, I am satisfied to confirm that documents in relation to your Request do not exist in Coillte.
“Insofar as providing information to inform you generally on the “rationale” for using third party foresters, Coillte has had ongoing engagement with Forestry Management Companies (“FMCs”) to provide support for Coillte’s ambition to increase afforestation and acquire immature forests. The use of FMCs is to complement the existing acquisition function within Coillte to buy and sell land for the company.”
69. The investigator assigned to this appeal sought further submissions from Coillte with a view to ascertaining whether, in spite of Coillte’s position that it did not hold any information relevant to part c) of the request, there was a possibility that it was held “for” the public authority, or on behalf of it by a third party, given that article 7(5) of the AIE regulations provides for release of environmental information held “by, or for, [a] public authority.” The response from Coillte confirmed that this was not the case, stating that it is “a notional concept that a document would exist that would include a rationale for a practice that has been followed by an organisation for many years.” It otherwise relied on its internal review decision and submissions to this Office as adequate reasoning and context to justify its reliance on article 7(5) in this instance.
70. I have given consideration to the appellant’s allusion to Coillte’s statement in its internal review decision that “documents in relation to [the] Request do not exist in Coillte” and to the possibility that information in other formats may exist which have not been identified by the public authority. However, in its original decision and internal review decision letters, as well as in its submissions to this Office, Coillte has variously referred to the fact of its not having being able to identify “records” relevant to part c) of the request, which illustrates to my mind that its reference to “documents” in the quote above was not an exclusionary device to thwart the appellant’s request. I am satisfied based on the submissions made by Coillte that Coillte has not been able to identify relevant information as it does not exist in any material form, documentary or otherwise.
71. I take the opportunity to note that, though public authorities, perhaps in a majority of cases, are required to carry out adequate and thorough searches in order to identify information relevant to a request, I am of the view, in certain instances, that it is reasonable to rely on the knowledge of officers of a public authority, especially when they are specialists in a particular field or are denominated senior subject-matter experts, as in this case, if they consider that information relating to a request or an element of a request does not exist. In these circumstances the carrying out of searches would be a redundant exercise and would not be a good use of public resources. This is because if such specialists or senior subject-matter experts, who have intimate knowledge of the field in which they work on a daily basis, as appears to be the case in this instance, affirm that no information of the type requested exists, then to require a public authority in such circumstances to conduct a needless search would be tantamount to requiring it to direct resources to a meaningless and futile task. The search undertaken by Coillte in this case was by way of consulting with the experts in the field who would know through intimate knowledge of the subject of the request that no relevant information exists. In my view, it is not unreasonable for Coillte to expect this knowledge to be held by such experts. I acknowledge that this situation may arise rarely, but nevertheless I find in this case that it does.
72. All the above considered, I am satisfied that Coillte carried out all searches for information requested at part c) of the request that could be reasonably expected and have thus complied with, and is rightfully entitled to rely on article 7(5) of the AIE regulations to refuse this part of the request on the basis that no information is held by, or for it that falls within its scope.
73. Having carried out a review under article 12(5) of the AIE Regulations, I affirm Coillte’s decision to charge a fee in line with its schedule of fees under article 15(1) and to refuse part c) of the request under article 7(5) of the AIE Regulations. I note that Coillte has confirmed that should the appellant now provide Coillte with a copy of his medical card, the fee charged will be reduced appropriately. Coillte and the appellant should liaise directly on the matter of the appellant proceeding with parts a) and b) of the request.
74. 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