Decision
Mr. X and Coillte
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-130555-Z5P6H0, OCE-129582-B4H2C0 & OCE-150125-C4K4K5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-130555-Z5P6H0, OCE-129582-B4H2C0 & OCE-150125-C4K4K5
Published on
1. This decision relates to three appeals received by this Office on 17 October 2022 (Appeal A), 10 October 2022 (Appeal B) and 27 June 2024 (Appeal C).
2. On 15 August 2022 the appellant submitted a request to Coillte for:
3. On 14 September 2022 Coillte issued its original decision wherein it stated that having, “considered the volume of records which are relevant to your request, it is my opinion that your request remains manifestly unreasonable. Following receipt and examination of your request, I have decided to refuse it under Article 9(2)(a) of the AIE Regulations”.
4. On 15 September 2022 the appellant submitted a request for an internal review of Coilltes decision.
5. In its internal review decision, issued on 14 October 2022, Coillte affirmed its position and stated that, “complying with the request would overwhelm the AIE Team if it were to act on the request alone”.
6. On 3 August 2022 the appellant submitted a request to Coillte seeking information relating to the monitoring of ground conditions during rainfall for licences where harvesting has commenced/concluded during a set period. This information was to include:
7. On 2 September 2022 Coillte issued its original decision wherein it stated that having considered the volume of records relevant to the request the authority had decided to refuse the request as authority deemed the request to be manifestly unreasonable citing article 9(2)(a) of the AIE Regulations.
8. On 2 September 2022 the appellant requested an internal review of this decision.
9. The authority issued its internal review decision on 29 September 2022 wherein it affirmed its intention to refuse the request as manifestly unreasonable while also providing additional reasoning for its decision under article 10 of the AIE Regulations which require a public authority to consider the public interest served by the disclosure of the information on question.
10. On 22 March 2024 the appellant submitted a request to Coillte for:
11. On 22 May 2024 Coillte issued its original decision wherein it stated that it was refusing access to the information sought under article 9(2)(b) of the AIE Regulations which specifies that a public authority may refuse a request where the request remains formulated in too general a manner, taking into account article 7(8).
12. On 24 May 2024 the appellant submitted a request for an internal review of Coilltes decision.
13. In its internal review decision, issued on 24 June 2024, Coillte affirmed its position and stated that, “complying with this Request within the timeframe permitted by the AIE Regulations, would involve Coillte in disproportionate cost and effort and would obstruct and significantly interfere with the normal course of Coillte’s activities”.
14. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations.
15. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
16. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
17. The scope of my review in these appeals is whether Coillte was justified in refusing the information requested under article 9(2)(a) and/or 9(2)(b) of the AIE Regulations.
18. As a result of the ongoing review of appeals before this Office, and the engagement in this process by Coillte, the authority has agreed to reconsider its position on both Appeal A and Appeal B following a request from this Office to do as such. Given the length of time which has passed since these two appeals were submitted to this Office, it is appropriate, given the extra resources now allocated to requests under the AIE regime by the authority, to provide Coillte with the opportunity to re-examine these appeals. With regards to Appeal C the authority has, after a review of its submissions to this office, identified this request as suitable for remittal in order to correct an error in its original decision making. In adopting this approach to the appeals under this decision it is hoped that a more timely conclusion will be achieved, for all parties concerned, than were a full investigation to take place into each appeal by this Office at this point. It will be open to the appellant to appeal again to this Office following the issuing of a new internal review decision, should he wish to do so.
19. In order to facilitate a speedy resolution in these appeals the investigator did not deem it necessary to seek final submissions or clarification on a small number of issues with the appellant or public authority.
20. As such, what follows will not be an in-depth examination of these appeals but will rather provide a brief overview of the relevant article while highlighting what I consider to be important aspects of these appeals which may be useful for the authority to consider in this or future similar appeals.
21. Article 9(2)(a) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. This provision seeks to transpose Article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and, in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.
22. Article 9(2)(a) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
23. In respect of a request which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, it is important to note that both article 7(2)(b) of the AIE Regulations and Article 3 (2)(b) of the AIE Directive specifically envisage that public authorities will deal with the voluminous or complex request, albeit in a longer time frame. The fact that a request is detailed does not mean that it is necessarily unreasonable.
24. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, it is necessary to examine whether responding to the request would involve the public authority in disproportionate cost or effort, or would obstruct or significantly interfere with the normal course of its activities. The findings of the Court of Justice of the European Union (CJEU) in T-2/03 Verein für Konsumenteninformation v Commission, at paragraphs 101-115, suggest that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request. If a public authority wishes to rely on the manifestly unreasonable nature of a request to refuse all or part of that request, it should be in a position to clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.
25. Having examined the appeals in question I note that in Appeal A, the authority has calculated that it would take 35 hours to examine and collate the information in answer to the appellant`s request. In Appeal B, the authority has estimated that a search and examination of the material in question would amount to approximately 50 hours with a large number of staff involved in the retrieval, examination, cross referencing and verification of this information. Having reviewed the records associated with these appeals, I am not satisfied that sufficient detail has been provided as to how these time periods were calculated and how the time would be broken down between the different tasks required in responding to the response. As set out above, the burden in on the public authority to demonstrate the unreasonableness of the task entailed by the request, and this requires the public authority to provide a satisfactory level of detail regarding the time it would take to process the request. This detail should include how many staff members would be required, what steps would be involved in answering the request and how much time would be spent on each of these tasks.
26. I note that in one of the appeals considered above the authority has not considered applying the one-month extension available to them under the AIE Regulations. As grounds for refusal of information by public authorities under article 9 are discretionary in nature I would urge authorities to use these grounds sparingly and to utilise provisions such as the one-month extension period to provide the maximum amount of information possible to appellants in answer to their requests.
27. In addition to availing of extended periods of time for the examination and dissemination of relevant environmental information within the AIE Regulations, it is open to the public authorities to engage with appellants outside of the AIE Regulations to provide environmental information in an agreed timeframe.
28. Article 9(2)(b) of the AIE Regulations and article 4(1)(c) of the AIE Directive respectively require that article 7(8) of the AIE Regulations and article 3(3) of the AIE Directive be taken into account. Article 7(8) of the AIE Regulations provides that where a request is made by the applicant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request, invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request. Article 3(3) of the AIE Directive provides that if a request is formulated in too general a manner, the public authority shall as soon as possible, and at the latest within one month, ask the applicant to specify the request and shall assist the applicant in doing so e.g. by providing information on the use of public registers.
29. As noted above, in its review of appeals before this Office, the authority in question has recognised that it had failed to provide the appellant with an opportunity to refine his request in accordance with article 7(8) of the AIE Regulations. Having consulted internally with staff knowledgeable in the subject matter in question Coillte deemed it appropriate to seek a remittal of this appeal back to the authority from this Office so that a fresh decision making process can be carried out on this case.
30. This approach by Coillte to actively seek remittals of appeals, where obvious errors in the original decision making process become evident, is welcomed by this Office.
31. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul Coilltes decisions to refuse access to information relating to the appeals as referenced above under article 9(2)(a) and/or 9(2)(b) of the AIE Regulations. Coillte should now provide the appellant with a new internal review decision.
32. 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