Cinneadh
Mr. X & Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146340-R6W5V7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146340-R6W5V7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Coillte was justified, under article 7(5) and 9(2)(b) of the AIE Regulations, in refusing access to information.
24 June 2025
1. On 16 November 2023, the appellant requested the following information:
“All information in relation to Coillte's interest in lands referred to in an email between [two identified individuals] c. March 2022 to include, but not restricted to
A) Correspondence / Discussions (Internal and External); to include text messages (especially those referred to in the email).
B) Maps, including drafts (including draft BioMaps)
C) Meetings including meetings with DAFM.”
2. On 29 November 2023, Coillte applied an extension under article 7(2)(b) of the AIE Regulations.
3. The original decision was made by Coillte on 15 January 2024. At that time, Coillte stated that there was a process of engagement underway between Coillte and external third parties in relation to lands at Crummagh, Kilconnell, Co Galway and that the information requested related to this ongoing and incomplete process; access was, therefore, refused under article 5 (1)(c) of the AIE Regulations. Additionally, the request was refused under article 9(2)(c) on the basis that it concerned material in the course of completion, unfinished documents or data. It was estimated that, in accordance with article 10(6) of the AIE Regulations, subject to any changes that might occur, the estimated time needed for completion was approximately 12 months.
4. On 15 January 2024, the appellant requested an internal review of the decision. An internal review decision affirming the original decision was issued on 9 February 2024, reiterating that articles 5 (1)(c) and 9 (2)(c) of the AIE Regulations applied. It stated that as the process of engagement was, at that stage, incomplete, the release of the information requested could have an adverse effect on the outcome and access to the records sought was refused.
5. The appellant appealed to my Office and provided submissions on 13 February 2024. He stated that Coillte failed to demonstrate that the exception under Article 9 (2)(c) of the AIE Regulations applied to any of the information requested. He said that Coillte failed to provide him with a schedule of records which he requested. He said that a schedule would have made it easy for him to identify records which, by their very nature, must be complete. He argued that information on meetings held and correspondence that has been sent and received cannot be classified as information in the course of completion. Furthermore, he said that, in any event, Coillte had failed to apply article 10 of the AIE Regulations.
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 by 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’).
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 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.
9. In its original and internal review decisions, Coillte referred to article 5(1)(c) as a basis for refusing the appellant request. Article 5 of the AIE Regulations and Article 7 of the AIE Directive place duties on public authorities to actively disseminate environmental information. It is not within my powers under article 12 of the AIE Regulations to examine the implementation of those provisions by public authorities. However, those duties may be relevant considerations in interpreting the AIE Regulations and performing my functions. Furthermore, in every case, regard should be had to the purpose of the AIE Regime, as reflected in Recital 1 of the Preamble to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment.” While it does not appear that Coillte continues to rely on article 5 as a basis for refusing access, for the sake of completeness, I find that reliance on article 5 is not appropriate in refusing access to information, given that article places a duty on public authorities to actively disseminate environmental information.
10. As outlined above, in its original and internal review decisions, Coillte also refused access to the information sought under article 9(2)(c) of the AIE Regulations. During the course of this review, Coillte provided submissions dated 22 May 2024 to this Office. While it referred to the basis for the internal review decision as being under article 9(2)(c) of the AIE Regulations, it stated that its position is now that it holds no information coming within the scope of the appellant’s request. This is because the appellant had framed the request as a request for information on matters concerning an “interest in lands”. On further consideration, Coillte’s interpretation of the request is “in respect of an actual legal interest in such lands, a legal interest capable of being identified and defined.” On that interpretation, Coillte now relies on article 7(5) of the AIE Regulations in refusing the request; as at the date of the request, Coillte did not have any legal interest in the lands referred to.
11. In the circumstances, I will consider article 7(5) of the AIE Regulations as the basis on which Coillte is refusing access to the information sought. Coillte also referred to article 9(2)(b) of the AIE Regulations and I will consider its application in the present case.
12. In summary, the scope of this review is to determine whether Coillte was justified in refusing access to information under articles 7(5) and 9(2)(b) of the AIE Regulations.
13. In relation to the appellant’s comment that Coillte failed to provide a schedule of records when requested, while there is no requirement under the AIE Regulations for public authorities to provide requesters with a schedule of information / records relevant to a request, this Office considers that, in order to help ensure that adequate reasons for decisions are given, it is generally best practice to do so.
Article 7(5) of the AIE Regulations
Coillte’s interpretation of the appellant’s request
14. As noted above, in its submissions to this Office, Coillte stated that its position is now that it holds no information coming within the scope of the appellant’s request; Coillte interpreted the request as relating strictly to a legal interest in land only and it relies on article 7(5) of the AIE Regulations in refusing the request as, although it had, at one stage, an interest in procuring the relevant lands, it did not have any legal interest in the lands referred to at the time of the request.
15. In relation to searches carried out, Coillte stated that it consulted various subject matter experts and searches were carried out “on Coillte’s land acquisitions database, legal database, MS Outlook using keywords “Crummagh, Kilconnell”. Following these inquiries, Coillte determined that, as of the date of the request, Coillte had no legal interest of any kind in the relevant lands and, therefore, it does not hold any environmental information within the scope of the appellant’s request.
16. It stated that to conclude that it should interpret the request to include environmental information in relation to “any lands that Coillte may potentially be interested in acquiring is going far beyond the intention of the AIE Regulations, the AIE Directive and the Aarhus Convention. Disclosure of such information at this stage would adversely interfere with the land acquisition decision-making process of Coillte.”
Obligations under Article 7(5) and other relevant provisions
17. With regard to obligations on a public body under the AIE Regulations, Article 7(5) of the AIE Regulations 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”.
18. In cases where a public authority has 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.
19. Article 7(1) of the AIE Regulations obliges a public authority “notwithstanding any other statutory provision and subject only to these Regulations, make available to the applicant any environmental information, the subject of the request, held by, or for, the public authority.” Furthermore, 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.”
20. While Article 6(1)(d) specifies that a request for environmental information should state, in terms that are as specific as possible, the environmental information that is the subject of the request, the Regulations do not provide that, in such a request, words used in ordinary parlance must be interpreted in a strictly legal sense. In my view, this would, in fact, be contrary to the stated objectives of EU Directive 2003/4/EC. Recital 1 of the Directive specifies that “increased public access to environmental information” contributes to more effective participation by the public in environmental decision-making. If the public were required to formulate AIE requests using overly legalistic phraseology, or, were words used in requests to be interpreted solely in a rigidly legal sense, the aim of increasing public access to environmental information could be severely undermined.
21. Furthermore, the general tenor of the AIE Regulations is that access to information should be facilitated, where possible, in accordance with the Regulations. 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) specifies that “an objective of the AIE Regulations is, as stated in Article 1 of EU Directive 2003/4/EC, ‘to guarantee the right of access to environmental information held by or for public authorities...’. This places a general responsibility on public authorities to facilitate access to environmental information that people may wish to receive.” (paragraph 7.1)
22. Moreover, the Guidelines specify that “public authorities are reminded that the objective of the Regulations is to facilitate access to environmental information to the greatest possible extent, consistent with the provisions of the Regulations generally.” (paragraph 7.2)
23. The Guidelines set out that there is a presumption in favour of disclosure of information, in accordance with the Regulations: “In general, public authorities shall: consistent with other provisions of these Regulations, maintain a presumption in favour of the disclosure of environmental information, and seek to respond positively and promptly to requests.” (paragraph 7.3)
24. Consistent with the general obligation to disclose information as stated by the Guidelines, in accordance and subject to the provisions of the AIE Regulations, there is an obligation on a public authority under article 5(1) of the AIE Regulations to “inform the public of their rights under these Regulations and provide information and guidance on the exercise of those rights”.
25. The Guidelines state that a public authority in general shall “offer assistance to members of the public to enable them to formulate requests in accordance with Article 6 of the Regulations, with particular regard to individuals who may have literacy or other relevant difficulties or disabilities.” (paragraph 7.3).
26. The Guidelines set out that the public authority should, as far as possible aim to assist applicants:
“In cases where a request is formulated in too general a manner, public authorities must, within one month, inform the applicant accordingly and provide advice and assistance to the applicant in reformulating the request. The intention should be to assist the applicant as much as possible .” (point 9)
27. Coillte is obliged to facilitate the request where possible, subject to the Regulations. At no stage did the appellant indicate that he intended the word “interest” to be interpreted as meaning solely “legal interest” nor was this how the word was interpreted at original decision or internal review stage. Coillte did not, at either of these stages, raise any issue in relation to the phrasing of the request or seek to clarify with the appellant whether the word “interest” was intended in an ordinary, plain English sense or whether it was intended in a legal sense only.
28. From all of the foregoing, I find that Coillte adopted an overly narrow interpretation of the appellant’s request. I do not find that it is reasonable for Coillte to conclude that it does not hold any records within the scope of the appellant’s request having regard solely to a legalistic interpretation of the wording used in the request. I am not, therefore, in a position to find that it carried out all adequate searches required under article 7(5) of the AIE Regulations.
Article 9(2)(b) of the AIE Regulations
29. Coillte, in its submissions, stated that the appellant’s request was “too broad and non-specific” and “lacks the specificity required under article 9(2)(b). It also pointed to the fact that a staff member’s name was incorrectly spelled and the exact date of the email referred to in the request was not provided.
30. Coillte have not, however, provided evidence of compliance with article 7(8) of the AIE Regulations which, in circumstances where an applicant makes a request which is too general, public bodies are required to invite an applicant to make a more specific request and offer assistance to the applicant in preparation of such a request, as soon as possible and at the latest within one month of receipt of the request.
31. Furthermore, I would again refer to the Minister’s Guidance where it is set out that the public authority should assist the applicant as much as possible in formulating their request. In circumstances where an incorrect spelling of a staff member’s name was provided or absence of date of email created difficulty or confusion for Coillte, it would have been open to them to request that the appellant clarify any aspect or details of the request.
32. From the foregoing, in circumstances where there is no evidence of compliance with article 7(8), I find that Coillte cannot rely on article 9(2)(b) in refusing the request.
Conclusion
33. In conclusion, I am not in a position to find that Coillte has established that it can rely on either the provisions of article 9(2)(b) or 7(5) of the AIE Regulations in refusing the request.
34. With regard to article 7(5), Coillte has not established that took all reasonable steps to identify and locate the requested information relevant to the appellant’s request. In all the circumstances, Coillte took an overly narrow view of the scope of the appellant’s request.
35. In addition, insufficient evidence was submitted that the entirety of the appellant’s request was adequately considered. The request mentions, for example, text messages and maps that may exist within the scope of the request. Coillte indicated that searches were carried out on “Coillte’s land acquisitions database, legal database, MS Outlook.” It does not indicate that how searches were carried out to determine whether text messages or maps which might fall within the scope of the request exist.
36. Accordingly and from all of the foregoing, I annul Coillte decision and remit the matter to Coillte to carry out adequate searches to determine whether further information falling within the scope of the request exists.
37. Having carried out a review under article 12(5) of the AIE Regulations, I annul Coillte’s decision and remit the matter to Coillte to carry out adequate searches under article 7(5) in respect of any information that may fall within the scope of the appellant’s 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