Cinneadh
Mr. X and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-161648-Y2G8P8 & OCE-161656-Q7T7Z1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-161648-Y2G8P8 & OCE-161656-Q7T7Z1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the appellant’s correspondence constituted a valid request for internal review under article 11 of the AIE Regulations and, if so, whether Coillte dealt with the requests concerned in accordance with the AIE Regulations
4 December 2025
1. This decision concerns two (2) appeals to this Office against Coillte regarding its failure to perform an internal review under article 11 of the AIE Regulations on two (2) requests submitted by the appellant under the AIE Regulations.
2. Details of the AIE requests are as follows:
(a) Request 1: AIE Request 20250107 (OCEI Appeal OCE-161648-Y2G8P8)
On 24 April 2025, the appellant requested access to information relating to Coillte’s engagement with Local Authorities. Following an agreed refinement of the request under article 7(8) of the AIE Regulations, Coillte advised the appellant on 13 May 2025 that it was relying on article 7(2)(b) of the Regulations to extend the timeframe for response to his request to allow for engagement with relevant staff. Coillte provided its original decision to the appellant on 9 July 2025, granting access to information, subject to payment of a charge under article 15(1) of the AIE Regulations.
(b) Request 2: AIE request 20250121 (OCEI Appeal OCE-161656-Q7T7Z1)
On 9 May 2025, the appellant requested access to information relating to exotic conifers self-seeding / invading areas within and external to the Coillte estate. On 5 June 2025, Coillte responded to the appellant advising that it was relying on article 7(2)(b) of the Regulations to extend the timeframe for response to his request to allow for engagement with relevant staff. Coillte provided its original decision to the appellant on 9 July 2025, granting access to information, subject to payment of a charge under article 15(1) of the AIE Regulations.
3. On 10 July 2025, the appellant submitted the following identical correspondence to Coillte, in respect of each of the decisions dated 9 July 2025.
“As Coillte is not required to make a charge for information under the Regulations can you please explain the reason for the application of a charge for the information requested in this case .
I am entitled to understand the reason for your decision and this includes the reason for application of any charges .
Coillte is required to maintain this information in order to comply with its FSC forestry certification .
I am of the view that the charge is being applied to act as a deterrent to my access to environmental information. That would be contrary to the provision of the Regulations. If you disagree with my contention then please provide your reasoning for applying the charges .
Failure to respond will be taken as an acknowledgement that the charges are being applied as a deterrent .
PLEASE FORWARD AS APPROPRIATE WITHIN YOUR PUBLIC AUTHORITY
If I do not receive a response before 4:59pm on Friday 11th July then please consider this to be a request for an internal review on the basis that the fees are being applied as a deterrent to my access to environmental information contrary to the Regulations .”
4. No response was received from Coillte and on 20 August 2025, the appellant submitted two (2) identical appeals to this Office under article 12(3) of the AIE Regulations based on Coillte's failure to issue internal review decisions in respect of AIE request 20250107 and AIE Request 20250121.
5. On 20 August 2025, in line with this Office’s standard procedures, Coillte was provided with a copy of the appellant’s statement(s) of appeal and requested to forward a copy of the relevant decision-making records. In response, in respect of each case, Coillte submitted:
“I attach an email that we received from Mr [X] on 10 July in the incorrect mailbox therefore, we did not flag this as a request for an internal review, and we did not receive any further correspondence from Mr [X] in this regard .”
6. On 21 August 2025, this Office initially proposed to reject the appeal(s) on the basis that same appeared premature where a valid internal request had not been made, such as is required to initiate a review under article 12(3) of the AIE Regulations.
7. The appellant queried this approach, stating as follows:
“I did request an internal review. It was made conditional on Coillte not issuing clarification to my email of the 10th July - Coillte did not provide that clarification, therefore my request for an internal review was issued at 17:00 on Friday 11th July .I allowed Coillte a week to respond. They did not respond …
The Commissioner has encouraged requesters to engage with public authorities .
It would be most unfair if the Commissioner is then going to penalise a requester for trying to engage whilst effectively rewarding the public authority for ignoring the requester .
It would send a message to requesters to take no chances and issue internal review requests and appeals without engagement to protect their statutory rights …”
8. On 22 August 2025, Coillte also provided a submission to this Office regarding “the validity of the purported internal review requests ”, including as follows:
“These submissions focus solely on the nature and validity of the requester’s communication, and not on the reasonableness of the charges applied. Coillte submits that the conditional language used by the requester in the emails dated 10 July 2025 did not constitute a clear or unequivocal request for internal review under Article 11(1) of the AIE Regulations .
The phrasing, “If I do not receive a response before 4:59pm on Friday 11th July then please consider this to be a request for an internal review …” places the burden of interpretation on the public authority and introduces ambiguity into what should be a straightforward procedural step. This conditional formulation fails to meet the standard of a valid internal review request, which should be explicit and unambiguous.
In light of the above, Coillte respectfully requests that the OCEI determine whether the communications received on 10 July 2025 constitute valid internal review requests under Article 11(1). Coillte submits that these communications do not meet the threshold and should not be treated as such. Clear and unequivocal requests for internal review are essential to ensuring procedural safeguards, without impinging upon the statutory rights of access.”
9. With both parties clearly seeking a determination in this matter, the appeals were formally accepted by this Office on 29 August 2025.
10. The appellant provided a submission on 2 September 2025 in support of his position. On 5 September 2025, the investigator assigned to this appeal wrote to Coillte, providing the content of the appellant’s submission and requesting any further comments by 19 September 2025. A final submission was received by Coillte on 16 September 2025.
11. I am directed by the Commissioner for Environmental Information to complete a review under article 12(5) of the Regulations. In doing so, I have had regard to the available decision-making records and all submission made by the parties. 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’).
12. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
Positions of the Parties
13. In its correspondence to this Office dated 22 August 2025, Coillte submitted that the appellant’s correspondence dated 10 July 2025 did not explicitly request an internal review. Coillte queried whether the communication meets the threshold of a valid internal review request under Article 11(1) of the AIE Regulations, setting out a number of “Legal and Procedural Concerns ” as follows:
Article 11(1) provides that a requester may seek an internal review of a decision where access has been refused. In both these cases access to the information sought was granted.
We acknowledge that the AIE Regulations do not prescribe a specific formula or exact wording for requesting an internal review under Article 11. However, the AIE Regulations plainly require that an applicant must “request ” a review, not merely contemplate or condition it. Coillte contends that conditional or equivocal wording falls short of triggering the statutory mechanism.
The conditional nature of the requester’s statement hinged on the absence of a response by a self-imposed deadline does not constitute a definitive or unequivocal request for internal review. It introduces ambiguity and places an undue procedural burden on the public authority to interpret intent rather than respond to a clear request.
Further, allowing ambiguous or conditional formulations, such as if X doesn’t happen, treat this as a review request would undermine the legal certainty and administrative clarity the AIE Regulations seek to ensure. In this case, because the language looks forward rather than definitively activates a right, Coillte’s position is that no valid internal review request was made.
We further note that, in a related context, Coillte’s refusal to process internal review requests absent essential identity information was accepted as valid by the High Court [2024] IEHC 28. This confirms that authorities may legitimately decline to act when fundamental procedural preconditions are not met, and that requests may be deemed invalid in such circumstances.
Framing a conditional statement as a request for an internal review also places an avoidable and unnecessary burden on staff within the OCEI, who are then required to investigate deemed refusals and open effective positions, work that could be entirely prevented if the requester made a clear or unequivocal request for internal reviews in accordance with Article 11(1) of the AIE Regulations.”
14. The appellant made a submission to this Office on 2 September 2025, as follows:
Coillte failed to issue a decision on my request for an internal review.
On this basis I am asking the Commissioner to annul the decision on the basis that Coillte failed to comply with the Regulations in addressing my request.
If the appeal is not handled this way I would like further opportunity to make submission as I cannot make submission on an internal review decision where none was issued.
I do contend that my internal review request was legitimately made. I do not see anything in the Regulations that prevents a requester from issuing a conditional request for an internal review where the factors affecting the conditionality are solely and totally in the hands of the public authority.
Coillte repeatedly fail to engage on AIE matters and I was merely saving work for myself by requesting an internal review conditional on the lack of a response to my effort to engage and seek clarification regarding the basis for the fee. I did not expect Coillte to respond as they never do, but I wanted to give them the opportunity to before seeking the internal review.
I should not be denied my statutory rights due the failure of a PA to engage and provide clarification.
Had Coillte responded I would (dependent on the response) have issued a new and unconditional request for an internal review.
15. As outlined above, the content of the appellant’s submission was shared with Coillte on 5 September 2025. At this time, the Investigator also requested clarification concerning what action, if any, was taken in response to the appellant’s correspondence to Coillte on 10 July 2025. On 16 September 2025, Coillte reverted as follows:
“…In relation to your query regarding the appellant’s correspondence dated 10 July 2025, I confirm that no action was taken by Coillte .As outlined in my letter dated 22 August 2025, we do not consider this correspondence to constitute a valid internal review request under Article 11(1) of the AIE Regulations .
It is important to note that, in both instances, the Appellant was granted access to the information requested .The information will be released upon payment of the reasonable charge applied, in accordance with Article 15(1) of the AIE Regulations .
We will continue to work with your Office to uphold the principles of transparency and accountability in environmental matters .”
16. I am satisfied that the scope of this appeal is limited to whether the content of the correspondence dated 10 July 2025, can be interpreted as a valid internal review request; notwithstanding which Coillte mailbox it was issued to. I am also satisfied that Coillte’s objection to the validity of this internal review request is as set out in its submission dated 22 August 2025 and is based on the “conditionality” element of the correspondence received from the appellant.
17. For the sake of clarity, in each of these cases, Coillte did not issue an internal review decision within the time period prescribed in the AIE Regulations and therefore, a ‘deemed refusal’ arose. In general, in cases where a deemed refusal arises, this Office requests that the public authority sets out its views, referred to as its ‘effective position’. In this instance, no effective positions were requested due to Coillte’s position that no valid internal review requests were made. Both parties have had the opportunity to make submissions, and I am satisfied that fair procedures have been complied with in this regard and that these appeals have been dealt with appropriately. This will, however, affect the manner in which I make my decision, which I will explain below.
18. In accordance with article 12(5) of the AIE Regulations, the role of the Commissioner is to review the public authority’s internal review decision and to affirm, annul or vary it.
19. This review is concerned with whether the appellant’s correspondence dated 10 July 2025 constituted a valid request for internal review under article 11 of the AIE Regulations and, if so, whether Coillte dealt with the requests concerned in accordance with the AIE Regulations.
20. Article 11 of the AIE Regulations sets out the procedure for an internal review where an appellant’s request has been refused by a public authority, in whole or in part. Article 11(1) provides: “Where the applicant’s request has been refused under article 7, in whole or in part, the applicant may, not later than one month following receipt of the decision of the public authority concerned, request the public authority to review the decision, in whole or in part.”
21. Coillte has pointed to the fact that the original decisions concerned granted access to information, subject to payment of a charge under article 15(1) of the AIE Regulations. However, as made clear by Faherty J in [2023] IECA 68 (see paragraph 58), even if the actions or omissions of a public authority do not constitute a refusal to provide the information sought, the appeal mechanism provided for in the AIE Regulations expressly contemplates an appeal to the Commissioner in such a scenario. It is for the requestor to decide whether they are satisfied with the response they receive. Article 11(5) of the AIE Regulations expressly provides: “In sub-article (1) and article 12(3)(a), the reference to a request refused in whole or in part includes a request that – (a) has been refused on the ground that the body or person concerned contends that the body or person is not a public authority within the meaning of these regulations, (b) has been inadequately answered, or (c) has otherwise not been dealt with in accordance with Article 3, 4 or 5 of the Directive (including the ground that the amount of the fee charged under article 15(1) is excessive.)” (emphasis added).
22. It is common ground in this case that the AIE Regulations neither prescribe nor preclude any specific wording for requesting an internal review under article 11 of the AIE Regulations. However, it is Coillte’s contention that “conditional or equivocal wording falls short of triggering the statutory mechanism”. The thrust of the appellant’s argument, on the other hand, is that it is reasonable for a requestor to use conditional language “where the factors affecting the conditionality are solely and totally in the hands of the public authority ”.
23. I have carefully considered the submissions provided by both parties in this matter.
24. I am particularly conscious of Coillte’s arguments that the phrasing of the appellant’s correspondence, “introduces ambiguity and places an undue procedural burden on the public authority to interpret intent rather than respond to a clear request ”. I do agree that clarity is important, given that a statutory request under article 11 of the AIE Regulations triggers the public authority’s obligation to follow the statutory process and associated timescales.
25. However, contrary to Coillte’s assertions, in my view, the appellant’s “intent” was quite clear in this instance, given that he stated – “…If I do not receive a response before 4:59pm on Friday 11th July then please consider this to be a request for an internal review …” (emphasis added).
26. Furthermore, in my view, it is open to a public authority to consider any written reply from a requestor expressing dissatisfaction with an authority's response to a valid request for information in accordance with the authority’s review procedure pursuant to article 11 of the AIE Regulations, even if the requestor does not make a “clear and unequivocal request for internal review ”, as Coillte suggests. In any event, in circumstances where such correspondence is received by it, it would be in the best interests of all parties for the public authority to acknowledge receipt of an internal review request or otherwise decline same, specifying the reasons for that decision.
27. I would also add that whilst it is legitimately open to a requestor to comment on an authority's response without requesting a review of the decision, requestors should bear in mind that dealing with “conditional ” requests is likely to be problematic for any public authority and indeed, as Coillte suggests, also places an additional administrative burden on this Office. As such, it is in everyone’s interests to keep such correspondence as clear as possible.
28. In conclusion, I consider that the appellant’s correspondence dated 10 July 2025 can be considered to meet the requirements of article 11(1) of the AIE Regulations in this instance. Consequently, I am not satisfied that Coillte dealt with the requests concerned in accordance with the AIE Regulations and therefore I will remit these appeals, and direct Coillte to conduct internal review processes on each in line with article 11 of the AIE Regulations.
29. I will note that I am making this decision based on the facts and circumstances that apply to these appeals, and this does mean that in any case where there is a “conditional ” element to an internal review request it will be sufficient to meet the requirements of article 11(1) of the Regulations.
30. As set out above, Coillte did not provide the appellant with an internal review decision on either request concerned, within the time period prescribed by the AIE Regulations. Due to this, deemed refusals arose on 11 August 2025.
31. Accordingly, having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the deemed refusals and direct Coillte to provide an internal review decision in respect of each request in line with article 11 of the AIE Regulations.
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.
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Julie O’Leary