Cinneadh
Mr. X and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-144489-T9K9C3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-144489-T9K9C3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Coillte was justified in refusing access to additional information under article 7(5) of the AIE Regulations on the grounds that no further information coming within the scope of the request is held by or for Coillte.
1. By decision of 8 August 2023, the Commissioner annulled Coillte’s decisions in a number of cases and directed Coillte to undertake a fresh decision-making process in respect of each request. This case was among those remitted to Coillte.
2. Coillte deemed the appellant’s request to have been received on 3 October 2023. The appellant sought access to:
“Information relating to felling licence application LM09-FL0055 to include inter alia;
• Map of the planned Harvest Route to the nearest Regional Road
• Date of Inspection by Environmental Officer prior to application submission
• Environmental Officers Comments on Water, Soil & Biodiversity
• Proportion of Site affected by Windblow
• Notifications / Consultations with local stakeholders
• An estimate of the expected residues and emissions (including carbon loss from soils)
• A description of the significant effects of the proposed activity on the environment;
• A description of the measures envisaged to prevent and/or reduce the effects
• An outline of the main alternatives studied by the applicant.”
3. Initially, by decision dated 2 November 2023, Coillte refused the request on the basis of article 7 (5); namely that it had been unable to locate any records relevant to the appellant’s request despite carrying out searches. It stated that:
“Your request seeks very specific categories of information relating to felling licence application LM09FL0055. As part of the searches and enquiries conducted to ascertain if this information exists, members of the AIE team held detailed discussions with the relevant Resource Manager, who inputs directly into the felling licence application process for BAU 3, which covers the geographical area of LM09.
Information relating to the categories of information sought by you would typically be recorded within a Natura Impact Statement (NIS) or an Appropriate Assessment Pre-Screening Report. The Resource Manager confirmed to the AIE team during these discussions that the felling licence application for LM09-FL0055 was rejected by the DAFM. As a consequence, there was no requirement to produce either an NIS or an Appropriate Assessment Pre-Screening Report for felling licence application LM09-FL0055. Therefore, the information sought by you does not exist.”
4. By email of 3 November 2023, the appellant requested an internal review of that decision specifying that:
“Information relating to this application would include the application itself and any other information that was produced relating to that application irrespective of its rejection by DAFM. The use of the term inter alia, indicates that the list of information is indicative of the information sought, not definitive or restrictive.”
5. An internal review decision was issued on 1 December 2023, varying the original decision. While Coillte granted access to certain information relevant to the appellant’s request, it refused access to further information under article 7(5) of the AIE Regulations. The appellant was provided with the felling licence application for Felling Licence LM09-FL0055 and the date the field inspection for this application was carried out. The decision-maker stated that Felling Licence LM09-FL0055 had been rejected by the Department. She set out details of searches carried out in relation to any further information in existence. She indicated that relevant databases were searched using reference number “LM09-FL0055” and stated that no further information relevant to the appellant’s request existed.
6. She noted that:
“The records typically created in relation to the topic may involve maps, inspection reports, Natura Impact Statements (NIS), harvest site plan (only developed in the year if operation), 5 Year Forest Plans, telephone conversations and/or email correspondence.”
7. Furthermore:
“The basis on which Coillte has concluded that some or all of the information sought does not exist is because the felling licence application for LM09-FL0055 was rejected by the DAFM. As a consequence, there was no requirement to produce either an NIS or an Appropriate Assessment Pre-Screening Report or other supporting documentation for felling licence application LM09-FL0055. Therefore, the information sought, by you, does not exist.”
8. The appellant appealed to my Office on 7 December 2023.
9. 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 the Coillte. 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’).
10. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
11. In accordance with article 12(5) of the AIE Regulations, my role is to review Coillte’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require Coillte to make available environmental information to the appellant.
12. The scope of this review is to determine whether Coillte was justified in refusing access to additional information under article 7(5) of the AIE regulations on the grounds that no further information coming within the scope of the request is held by or for Coillte.
13. In his application to this Office, the appellant stated that he was not satisfied that all information falling within the scope of his request has been provided.
14. He stated that any information on the refusal of felling licence application LM09-FL0055 by the Department of Agriculture, Forestry and Marine (“the Department”) would be related to the application and would fall within the scope of his request. Nothing was provided to him in this regard and no reason was provided for the refusal of the licence. He said that no information exists on the Forestry Licence Viewer (FLV) for this application.
15. Furthermore, he said with regard to the site inspection carried out by the Environmental Officer, no record of his or her comments on that inspection were provided. He stated the Officer was likely to have recorded information in relation to the inspection; this information would come within the scope of the request.
16. In addition to the detail contained in its decisions (see “Background” section above) on 29 February 2024, Coillte provided submissions to this Office regarding this appeal. It relied on Article 7 (5) in partly refusing the appellant’s request. It stated that the felling licence application LM09-FL0055 was rejected by the Department because the application was incomplete. A short time later, the application was resubmitted, containing required information, under felling licence application LM09-FL0056. Coillte stated that this felling licence contains “minimal differences to LM09-FL0055.” It stated that the details of the second licence application are available on the FLV and that the appellant should refer himself to that application. If, following perusal of the second licence application on the FLV, the appellant requires further information, he should then submit a new AIE request to Coillte in respect of the second licence application.
17. Coillte also stated that the information collected by the Environmental Officer following inspection of the site is reflected in the Harvest site plan map and referenced in the pre-screening report for LM09-FL0056 which is available on the FLV. Additionally, it stated that the “site assessment comments are recorded on the data collector application with associated mapped features and uploaded to Coillte’s information system.” The data collected was submitted for the second licence application; felling licence application LM09-FL0056.
18. Coillte maintains that it fulfilled its search obligations under the AIE regulations; the relevant Resource Manager carried out searches using Reference “LM09-FL0055” and searched within “DAFM FLV, Coillte Map Viewer, cloud-based storage and Office 365/emails, and by reference to direct telephone conversations/meetings with key staff/manager from the relevant business division. The Internal Review details the meetings which took place with the Subject Matter Experts.” Furthermore: “the Resource Manager confirmed that, after carrying out the searches as detailed, the environmental information does not exist. The Resource Manager, being the Subject Matter Expert involved in the process whereby felling licence application LM09-FL0055 was rejected by DAFM and shortly thereafter resubmitted under felling licence application LM09-FL0056, was in a position to confirm that the information does not exist and confirmed that the information on a felling licence application for the same holding is available to view on FLV under felling licence application LM09-FL0056.”
19. Coillte furnished further submissions to this Office on 9 October 2024 stating, amongst other matters, the following:
20. Further clarifications were sought from Coillte on 20 February 2025. Coillte’s response on 11 March 2025 can be broadly summarised as follows:
21. The subject matter experts consulted in relation to the request were:
1) Resource Manager BAU 3,
2) A member of the Central Resource Team, and
3) Felling Licence Manager.
22. Coilte said that the Subject Matter Experts identified are the Coillte personnel with extensive knowledge and involvement in the felling licence application process. They recall the circumstances whereby the Department informed Coillte, during an online call in May 2022, that the applications for 65 felling licences, submitted during 2021, including LM09-FL0055, had been rejected.
23. Coillte was instructed by the Department to submit new applications which included restocking details in each licence application that had not previously been provided.
24. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by, or, for them on request, subject only to the provisions of the AIE Regulations. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information, or any further environmental information, is held by or for the public authority concerned. It provides as follows:
“Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it.”
25. In cases where a public authority has effectively refused a request under article 7(5), this Office must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply. It is not normally this Office’s function to search for environmental information.
26. What will be considered reasonable will vary from case to case, but as a general guide, I set out below the type of information that my Office would generally expect to be set out in a decision where a public authority is relying on article 7(5) of the Regulations;
I. an outline of exactly which areas/units etc. of the organisation were searched for the information.
II. an explanation of how searches were carried out (i.e. manually, by computer, by name, by key words). Keywords should be recorded and provided in the decision as appropriate.
III. details of the individuals consulted in connection with the search.
IV. a description of the searches carried out to cover the possibility of misfiled/misplaced records.
V. details of guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of information requested in this case.
VI. the basis on which the public authority has concluded that it does not hold any information within the scope of the appellant’s request and that no such information is held by any other person or body on its behalf.
27. While Coillte have provided details of the searches carried out in relation to this request, it appears to me that this appeal turns on whether Coillte have interpreted the appellant’s request in an unduly narrow manner. As mentioned, the appellant’s request contained the following wording:
“Information relating to felling licence application LM09-FL0055 […]”. (emphasis added) As well as this, the list of items provided by the appellant in his request is clearly an indicative list and not the only pieces of information that he wishes to receive.
28. Taking the above into account, I consider that any information relation to the refusal of license application LM09-FL0055 by the Department would come within the scope of this request. While Coillte have subsequently stated that this refusal was verbally communicated to Coillte by the Department, this does not exclude the possibility that internal Coillte records exist in relation to the refusal and this matter should have been considered in the original and internal review decisions.
29. It is further my view that any information held in respect of licence application LM09-FL0056 is also information relating to licence application LM09-FL0055 and, accordingly, falls within the scope of the appellant’s request.
30. This information is clearly “connected to” license application LM09-FL0055 as both licence application LM09-FL0055 and LM09-FL0056 pertain to the exact same site; geographical area LM09. Coillte have stated that there are “minimal differences” between the two applications. When licence application LM09-FL0055 was rejected, an application in respect of the same site was resubmitted as licence application LM09-FL0056 to address a deficiency identified by the Department leading to the rejection of licence application LM09-FL0055. Data collected in respect of licence application LM09-FL0055 was used and submitted in respect of licence application LM09-FL0056; for example, as stated by Coillte, the Environmental Officer’s site inspection carried out on 8 April in respect of licence application LM09-FL0055 and any documentation produced in this regard was used as a basis for licence application LM09-FL0056.
31. Article 10 (4) of the AIE Regulations stipulates that: “the grounds for refusal of a request for environmental information shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.” In all the circumstances, I am of the view that information relating to felling licence application LM09-FL0055 includes records relating to licence application LM09-FL0056, given that the latter application is an iteration of rejected application LM09-FL0055. The public body is obliged under article 7(1) of the AIE Regulations “to make available to the applicant any environmental information, the subject of the request, held by, or for, the public authority.” I consider that if Coillte had taken a reasonably broad interpretation of the appellant’s request, it would have included these records in its original and internal review decision.
32. Coillte have stated that: “The records typically created in relation to the topic may involve maps, inspection reports, Natura Impact Statements (NIS), harvest site plan (only developed in the year if operation), 5 Year Forest Plans, telephone conversations and/or email correspondence.” While some of the information sought by the appellant may be available on the FLV in respect of licence application LM09-FL0056, all the information may not be available by viewing the FLV.
33. While it is open to the appellant to make a fresh application to the public body, this is likely to take further time and there is a duty under article 13 of the Regulations to make information available “as soon as possible”. The appellant was not made aware when Coillte made its original decision or during internal review stage that a second application (LM09-FL0056) was made in respect of the same piece of land, due to the rejection of the first application (LM09-FL0055). Given that information held under LM09-FL0056 relates to application LM09-FL055, it is, in any event, within the scope of the appellant’s request.
34. From all the foregoing and having regard to the standard applied in article 7(5) of the AIE Regulations, I find that Coillte did not take all reasonable steps to search and locate information within the scope of the appellant’s request as no effort was made to retrieve information held by Coillte in respect of licence application LM09-FL0056, an application which contained information relating to application LM09-FL0055. Only “LM09-FL0055” was used as a search terms and this was not adequate in the circumstances.
35. Accordingly, it is my view that the most appropriate course of action to take in this case is to remit the matter to Coillte for a fresh decision-making process to enable it to undertake searches for any information it may hold that may be relevant to the request and, thereafter, to issue a fresh internal review decision to the appellant in response to his request.
36. Having regard to the above, I cannot find that Coillte has taken adequate steps to identify and locate all relevant environmental information held by it. As such, I am unable to find that article 7(5) of the AIE Regulations can be relied upon by Coillte.
37. Accordingly, I annul Coillte’s decision in its entirety and direct it to consider the appellant’s request afresh and make a new internal review decision in accordance with the provisions of the AIE Regulations, and in particular the requirement to take adequate steps to identify and locate all environmental information held by it within the scope of 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