Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-138197-X1S6K2 & OCE-143453-T7Z3T0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified under the AIE Regulations in refusing the information sought.
04 April 2025
1. These cases relate to requests for environmental information relating to forestry. On examination of the casefiles these appeals have been identified as cases where the reasons provided in the decisions issued by the Department were not sufficient having regard to the AIE Regulations and Directive.
2. I am directed by the Commissioner for Environmental Information to carry out a review of these appeals under article 12(5) of the AIE Regulations. In carrying out my review, 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’).
3. In accordance with article 12(5) of the AIE Regulations, the role of this Office in each case is to review the Department’s internal review decision and to affirm, annul or vary it.
4. While I again acknowledge that the significant volume of AIE requests in relation to forestry issues presents a significant challenge to the Department, the Department must continue to be mindful of its duty to provide adequate reasons to requestors in first instance decisions where an AIE request is being refused. If adequate reasons were provided in the first instance decisions issued by the Department in these appeals, it may have avoided the need for appeal to this Office and reduced the administrative burden on both the staff of the Department and this Office. The Department must ensure that relevant units have the necessary resources to allow the Department to meet its statutory requirements with regard to AIE, and that all staff are aware of their responsibilities under the AIE Regulations, particularly with regard to the duty to give reasons for their decisions.
5. I continue to encourage the Department to be proactive in dissemination of frequently requested material through its open data portal in an effort to reduce requests and subsequent appeals. The ongoing cooperation of the staff within the AIE unit of the Department and this Office where decisions of the Department are appealed continues to be welcome.
6. In OCE-138197-X1S6K2 the Department combined 8 separate AIE requests made by the appellant into one request as follows;
AIE/23/241
1. All Information on all Alleged Illegal Felling Incidents reported during November 2022
2. All Information on all Alleged Illegal Felling Incidents investigated during November 2022 Records to also include a status update.
AIE/23/242
1. Correspondence between Niall Phelan & Ken Bucke (Forest Service) c. 19-1-21 related to Judicial Review 740/2018
2. A copy of an email from Ken Bucke (Forest Service) to colleagues 19-1-21 containing a link to an article in the Irish Times; including related correspondence
3. Any correspondence between DAFM and the FAC on the matter of Judicial Review 740/2018
4. Correspondence between FS and the EPA on the matter of Judicial Review 740/2018
5. Correspondence between FS and the EPA on the issue of waterbody status in 2021
6. All correspondence between Jean Hamilton (jean.hamilton@ftco.ie) and Kevin Collins (FS) during January 2021 7) All email correspondence with the subject including the topic “Q Values”
7. Correspondence between Ken Bucke and either Tanya Slattery, Alan Booth or Orla Fahy related to WFD issues during the period January –March 2021
8. All legal advice sought by DAFM relating to Judicial Review 740/2018
AIE/23/243
1. A copy of any Statement of Facts provided by the Forest Service to the Forestry Appeals Committee during January’23
2. Any related correspondence, internal or external.
AIE/23/244
1. Information on all Alleged Illegal Roads & Alleged Illegal Felling Incidents reported during January 2023
2. Information on all Alleged Illegal Roads & Alleged Illegal Felling Incidents investigated during January 2023 (To be clear I am seeking the records relating to the incidents in 1 & 2. Records to include a status update).
AIE/23/245
1. The date of all post licence inspections carried out in January’23 by the Forest Service of DAFM of the operations of Coillte felling licences.
2. All post licence inspection reports produced / completed in January’23 by the Forest Service of DAFM as a result of inspections carried out of the operations of Coillte felling licences. (This includes reports based on inspections that were carried out prior to January’23) The information to include any relevant correspondence and subsequent environmental information as a result of follow ups on the inspections, including surveys, analysis, etc.
AIE/23/247
1. The name of the certifying Inspector for all Forestry Licences issued during January 2023.
AIE/23/249
1. All information related to RUS CN87887 which does not appear on the FLV. To include; a) Application Notes b) iFORIS Notes c) Internal and External Correspondence (all media, including Text and WhatsApp Messages, Notes of Phone Calls, etc.)
2. All information related to a felling licence application at Tunnagh, Co. Sligo TFL00567220 which does not appear on the FLV. To include; a) Application Notes b) iFORIS Notes c) Internal and External Correspondence (all media, including Text and WhatsApp Messages, Notes of Phone Calls, etc.) d) Submissions or observations on the nature, extent and impacts of forestry in the area of Tunnagh (I am assured that information exists in this regard).
AIE/23/256
1. Post licence issue information in relation to an Amber infringement at GY24-FL0019. To include; a) Internal and External Correspondence (all media, including Text and WhatsApp Messages, Notes of Phone Calls, etc.) b) Photographs
2. Post licence issue information in relation to a Red infringement at GY10-FL0165. To include; a) Internal and External Correspondence (all media, including Text and WhatsApp Messages, Notes of Phone Calls, etc.) b) Photographs
3. Information relating to an AIF on lands adjoining GY10FL0165 confirmed in a letter from Coillte on 29-8-22
7. The Department informed the appellant that these AIE requests were being combined on temporal lines in order to alleviate the administrative burden on staff. The Department part granted the request, providing records in full for some elements of the 8 requests, providing redacted records for other parts, and refusing some parts of the 8 requests in full. The Department did not however, provide sufficient reasons to the appellant for the decision to make redactions in the released records, or for the decision to refuse records which were not released in full.
8. While I acknowledge it is possible in some instances to combine communications with regards to various AIE requests along thematic or temporal lines in an effort to reduce the administration burden on relevant staff, in the case of the 8 separate requests which are the subject of this appeal, it does not appear reasonable to combine the requests on the basis that they were all received by the Department within a certain timeframe. If the Department had decided to combine requests AIE/23/243, AIE/23/244, AIE/23/245 & AIE/23/247 which are all broadly related to forestry and relate to records created during January 2023, this may have been reasonable. It is my view that any exercise in combining requests in order to reduce related administration should ideally be carried out with cooperation between the parties, as the streamlining of the number of requests, and therefore the number of responses required, would ordinarily be mutually beneficial for the efficiency of the process. It does not appear that the combining of requests in this instance benefited the efficiency of the process.
9. Following a review of this casefile an investigator engaged with the Department, who have agreed to review the requests subject to this appeal. The Department should note that the appellant has informed this office that in relation to request AIE/23/243 he is satisfied with the information which has been released so no review of this request is necessary.
10. In appeal OCE-143453-T7Z3T0, the appellant requested;
1) The latest working draft version and the latest completed draft version of the SEA Environmental Report of Ireland's Forest Strategy Implementation Plan
2) Related correspondence to Item 1 between the Department and the Consultants producing the Report
3) The latest working draft version and the latest completed draft version of the Stage 1 AA Screening and Stage 2 AA Natura Impact Report (NIR) of Ireland's Forest Strategy Implementation Plan
4) Related correspondence to Item 3 between the Department and the Consultants producing the Report
11. The Department refused the request, relying on article 9(2)(a) of the AIE Regulations on the basis that the request was manifestly unreasonable having regard to the volume or range of information sought. The Department did not provide any reasoning whatsoever to the appellant for the decision, simply referring to article 9(2)(a) of the AIE Regulations without any further explanation. The Department did not provide any submissions or further details to this Office when offered the opportunity to do so. Following a review of the casefile an investigator engaged with the Department, who have agreed to review the decision.
12. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed, whether at internal review stage or through an appeal to this Office.
13. The judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 371 notes that “the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal”.
14. This view aligns with the decision of the Court of Justice of the EU in C-619/19 Land Baden Württemberg v DR. This decision contains some useful guidance in relation to the application of exceptions generally. The CJEU noted in particular, at paragraph 69 of its judgment: “As the Advocate General has observed in point 34 of his Opinion, [the] obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.”
15. It is clear from my review of the relevant decision-making records in each of these appeals that the Department’s decision-making process was not satisfactory having regard to the responsibilities placed on public authorities by the AIE Regulations, therefore it is not possible for the appellant to discern why his requests have been refused.
16. Given the circumstances of the appeals subject to this decision, I am satisfied that the most efficient way to deal with these appeals is to remit each case to the Department for review of the relevant decisions. While it would have been open to me to seek further submissions from the Department in respect of each appeal, I am satisfied that the AIE regime is best served by dealing with these cases in this manner. This decision therefore annuls the internal review decisions in each appeal and the Department should now issue a new internal review decision to the appellant in each case. The Department should include adequate reasoning to the appellant for its new internal review decision in each case.
17. Having carried out a review under article 12(5) of the AIE Regulations, I annual the decision of the Department in each appeal. The Department should now issue a new internal review decision in each case.
18. 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