Cinneadh
Mr. X and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-149203-J0T6L4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-149203-J0T6L4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Coillte was justified in refusing access to the requested information under article 7(5) of the AIE Regulations.
29 May 2025
1. On 19 February 2024 the appellant requested the following information:
“Information on all Forest Road Construction Works undertaken on Coillte property or by or for Coillte not on Coillte property during 2022 where the said works have been carried out without Coillte seeking development consent from the Forest Service of DAFM .
To clarify – the request is for newly constructed sections of road, features such as stacking areas, turning bays, loading bays, lay-byes, etc. or extensions to existing roads. The information can be provided in the form of a list in Excel spreadsheet format including details of County, Townland, Forest Property, Compartment Number, length of the works, description of the type of works (new, extension, turning bay ).
Please interpret this request broadly and provide a Schedule of Records with your decision .”
2. Coillte delivered its original decision on 18 April 2024, refusing the request on the basis that it was unable to locate “a list ” relevant to the appellant’s request, having “taken all reasonable steps to locate the list sought ”. Coillte advised that “individual information or data items relating to forest road construction works do exist within the organisation ” but not in the format requested.
3. Coillte stated that in order to “organise the data in the requested format ” it would entail a significant time investment by a specialist roads engineer, which was estimated to take approximately 22 hours at a rate of €20 per hour. Coillte applied a discretionary reduction of 50% of the total fee, amounting to a reduced fee of €220.
4. The appellant sought an internal review of the decision on 18 April 2024 stating that he “did not request a list ” but that he had “requested information” and that he had “indicated that a list would be sufficient”.
5. Coillte issued its internal review decision on 22 May 2024 and advised that it affirmed all aspects of the original decision and adopted the “extensive reasoning therein ” and repeating that “a list containing the attributes set out in the Request does not exist .”
6. The appellant appealed to my Office on 24 May 2024.
7. I have now completed my 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 to correspondence between Coillte and the appellant as outlined above and to correspondence between my Office and both Coillte and the appellant on the matter. 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’).
8. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
9. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s decision and to affirm, annul or vary it. As such, this review is concerned with whether Coillte was justified in refusing access to the requested information under article 7(5) of the AIE Regulations.
The appellant
10. In his request for an internal review dated 18 April 2024, the appellant stated that “the information requested exists but has been refused under the Regulations ” but the Public Authority “is then trying to sell me the information outside of the Regulation process .”
11. In the appellant’s appeal to this office dated 22 May 2024 he made a number of points as follows:
I. Coillte had “misinterpreted ” his request and his “request was not for a list ” but “information on Forest road works that have been carried out without Coillte seeking development consent ”. He also stated that that in his request he “indicated that the information ‘can be provided in the form of a list’ but that is not definitively stated as the format in which I want to receive the information. It was presented as an option .”
II. The appellant also observed that the Internal Review decision maker was satisfied to “accept that no information exists based on internal consultation and without carrying out any searches .” He pointed out that the Internal Review decision maker “indicated what search terms would have been used if searches had been conducted .” The appellant described this as a “hypothetical position ”.
III. The appellant also argued that “even if I had expressly requested the information in list form (which I maintain that I have not) Coillte were not restricted to providing the information in the form of a list. Coillte could have provided the information itself – which is what was actually requested .” He went on to argue that his request is “clearly and precisely framed to elicit information on Forest Road Construction Works undertaken on Coillte property or by or for Coillte not on Coillte property during 2022 where the said works have been carried out without Coillte seeking development consent from the Forest Service of DAFM .” (appellants emphasis)
IV. The appellant stated that Coillte is taking an “excessively narrow and unjustified interpretation ” of his request.
V. He also criticises Coillte for seeking clarification of his request after they had issued an Internal review decision, which he stated is “not the correct time ” to be seeking clarification regarding the scope of a request. The appellant further submitted that his request is “specifically framed with a clearly defined subject and timeframe .”
VI. The appellant further argued that Coillte had acknowledged that the information request “exists ” but have “applied an interpretation that has permitted them to refuse my request- unjustifiably ” in his view. He also argued that “Irrespective of the interpretation Coillte has not correctly applied the Regulations in respect of Article 7(3). Even if they thought that I was seeking list, Coillte should have considered whether access to the information sought could have been provided in a different format .”
12. In relation to the question of fees, the appellant stated as follows:
“Article 15 applies to information provided under the Regulations but Coillte has refused my request on the basis that the information requested does not exist. I see no provision in the Regulations for Coillte to act in this manner. Any information provided and any fee charged would be done so outside of the scope of the Regulations and outside of any statutory protection for me .
I would have to pay for information without knowing precisely what I would be provided with and with no avenue for recourse should I be dissatisfied .”
13. The appellant concluded his submissions by stating that Coillte failed to correctly address his request under the Regulation and that “aside from failing to address my request properly I contend that Coillte is seeking to diminish my statutory rights by trying to act outside of the Regulations in charging me for environmental information which is not being provided under the Regulations.” He also stated that “it is clear from Coillte’s position that information failing within the scope of my request exist, but the request has been refused under Article 7 (5) ”
14. In its original decision dated 19 February 2024, Coillte refused the request, pursuant to article 7(5) of the regulations on the basis it has been “unable to locate ‘a list ’ relevant” to the request, “having taken all reasonable steps to locate the list sought …”
15. With a view to outlining the steps taken to locate the information sought, Coillte stated as follows:
“Upon receipt of your Request the AIE Team assigned it to the Coillte’s Engineering Process Manager, who is the relevant subject matter expert. The Engineering Process Team, which is managed by the Engineering Process Manager, is responsible for planning all forest road construction works, whether those works require development consent from DAFM or not. On that basis, they are the relevant specialist team who would be responsible for creating and/or maintaining a list (if such a list existed) of all Forest Road Construction Works undertaken during a particular time, whether requiring development consent or not .
Following a detailed discussion with the Engineering Process Manager, he confirmed to the AIE Team that a “list ” containing the attributes set out in the Request does not exist, has never existed and is not held by or for Coillte.
16. Coillte went on to say that:
“The Engineering Process Manager has informed the AIE Team that individual information or data items relating to forest road construction works do exist within the organisation, stored across files and systems within the Engineering Process Team and other information across files and systems held by each of the six Business Area Units in Ireland. This information relates to the operational works associated with forest road construction and may include one or more of the attributes sought by you in your Request, such as County, Townland, Forest Property, Compartment Number. However, for the sake of absolute clarity, we confirm that the list you have sought, with each of the attributes noted, does not exist in any format. In addition, we confirm that there is no single file, system or dataset that contains each of the various attributes sought by you, by which Coillte could reasonably easily “create” such a list in order to satisfy your Request .”
17. With specific reference to article 5(1)(b) of the AIE Regulations, namely the requirement that public authorities “make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible by information technology or by other electronic means ,” Coillte stated that the “list ” sought by the appellant “is not information that would be considered reasonable for the purpose of responding to the Request or to meet Coillte's general obligations under Article 5(1)(b) ” and that “Coillte could not be expected under either the AIE Regulations or the AIE directive to organise or collate this particular information in any other way, to create lists containing summaries of the information as Coillte could not reasonably anticipate that all information related to this topic might be requested under the AIE regime .” Coillte also argued that there is currently no business need to create such a list for operational purposes.
18. Coillte also submitted that while information regarding the addition of these features to existing roads does exist, “organising the data in the requested format would entail a significant time investment by a specialist roads engineer within the Engineering Process Team ” and it estimated that the task of organizing the data in the requested format, would consume approximately 22 hours of the Engineering Process Manager's time, in addition to the work already undertaken for this request.
19. Coillte stated that the Engineering Process Manager believe it reasonable for Coillte to offer to provide the appellant with a “newly created list ” containing different attributes from his request, to “partially satisfy ” his AIE request, at a discounted fee of €220.
20. In Coillte’s Internal Review decision dated 20 May 2024, Coillte affirmed the original decision and as stated above, “adopted the extensive reasoning therein ” and that the decision letter which issued on 18 April 2024, should be read into the Internal review decision.
21. Coillte also stated that “This type of information would be searched for on the; cloud-based storage and Office 365/emails, and Coillte’s Land Resource Management tool. Arising from consultations with subject matter experts, I was satisfied to accept that the information requested does not exist and consequently, it was not considered necessary or reasonable to carry out a key word search; however, if such a search had been necessitated the following search terms would have been most relevant: “Property ” and “Road Number .”
22. With specific reference to this request, the Internal review decision maker stated that detailed discussions were held:
(i) with the Coillte’s Engineering Process Manager, who is the relevant subject matter expert. The Engineering Process Team, which is managed by the Engineering Process Manager, is responsible for planning all forest road construction works, whether those works require development consent from DAFM or not.
(ii) As part of the internal review, I held a meeting with Coillte’s Engineering Process Manager, on 13 May 2024.
23. Following these “detailed enquires ” it was confirmed that “a list containing the attributes set out in the Request does not exist, has never existed and is not held by or for Coillte .” Coillte went on to say “without prejudice ” to the position set out above, the Engineering Process manager advised that “individual information or data items relating to forest road construction works do exist within the organisation, some of which such information or data items are stored across files and systems within the Engineering Process Team and other information is stored across files and systems held by each of the six Business Area Units in Ireland ” however “the list ” sought with “each of the attributes notes, does not exist in any format .”
24. Coillte reiterated its proposal to generate a “newly created list ” containing certain attributes from the Request, in partial satisfaction of the request, subject to a payment of a reduced fee.
25. Following correspondence from this Office dated 17 April 2025 (detailed below), Coillte on 09 May 2025 stated that “without prejudice to Coillte’s refusal, I confirm that you can remit the request the subject of this appeal to us to reconsider.”
26. 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 to the provisions of the AIE Regulations. Accordingly, if a public authority wishes to refuse access to environmental information held by or for it, it must do so under an exemption provided for in the AIE Regulations.
27. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned. 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.
28. The appellant’s position is that Coillte's refusal to make available the requested information based on article 7(5) of the AIE Regulations, whilst, at the same time admitting that information exists, is not justified. He also argues that Coillte should not have limited/restricted his request to “list” format.
29. In correspondence from this Office dated 17 April 2025, the investigator advised Coillte that:
I. Having reviewed the appellant’s original request, internal review request together with submissions, it is my view that the appellant has not confined his appeal to a “list ” format. The language used in the original request is “The information can be provided in the form of a list …” In his request for an internal review, he states “I did not request a list, I requested information. I indicated that a list would be sufficient .”
II. “In any event, my initial view is that in circumstances where Coillte holds relevant information, this information request should not have been refused on the basis of article 7(5) of the AIE regulations as the Commissioner's position is that the AIE Regime is information based and not record based .”
30. In reply to the correspondence outlined above, Coillte on 09 May 2025, did not provide substantive submissions, however stated “without prejudice to Coillte’s refusal, I confirm that you can remit the request the subject of this appeal to us to reconsider .” As such, I will proceed to a formal binding decision.
31. Whilst it is acknowledged that Coillte identified steps taken to locate the relevant information sought at both the original decision and internal review stage, in my view, Coillte has not interpreted the appellant’s request reasonably, and the impact of its interpretation is to inappropriately find that that information requested does not exist.
32. It is my view that the information clearly exists, as Coillte has stated “…that individual information or data items relating to forest road construction works do exist within the organisation …” It is not appropriate to rely on article 7 (5) of the AIE Regulations to refuse the information requested, in circumstances where information relevant to the request is held by the public authority.
33. It is also my view that it is apparent from a review of the appellant’s original request, internal review request together with submissions (provided to Coillte) that he had specified the information sought “can ” be provided in “list ” format. A plain reding of his request reveals this was a suggestion rather than a specification. The appellant also confirmed this position in his internal review request by stating “I did not request a list, I requested information. I indicated that a list would be sufficient .”
34. Despite the appellant clarifying that the information was not required in “list ” format, Coillte continued to interpret his request as confining the information sought to list format. This, in my view was not an appropriate or reasonable position to have taken or interpretation of the appellant’s request. Having regard to the above, I am unable to find that article 7 (5) of the AIE Regulations can be relied upon by Coillte.
35. I acknowledge that Coillte in its correspondence to this Office dated 09 May 2025 agreed that the matter could be remitted to Coillte for re-consideration.
36. In light of my view as set out above, I do not consider it appropriate to address the question of the alternative proposal put forward by Coillte regarding the compilation of an alternative “list ” subject to a payment.
37. I have decided that the most appropriate course of action to take in this case is to annul Coillte’s decision and require it to provide the appellant with a new internal review decision under article 11 of the AIE Regulations. While it would be open to me to require Coillte to now identify information within the scope of the request and provide submissions on whether or not that information should be released, I consider it would be more efficient for this to be done through the carrying out of a new internal review decision-making process. In doing so, should Coillte wish to rely on any exemption provision provided for in article 8/9 of the AIE Regulations, it must fully set out its reasons for reaching its conclusions as well as, where relevant, its considerations of article 10 of the AIE Regulations, including paragraphs (3), (4), and
(5). It will be open to the appellant to appeal again to this Office should he remain unsatisfied with the outcome of this new internal review.
38. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby annul Coillte’s decision under article 7(5) of the Regulations and direct it to provide the appellant with a new internal review decision.
39. 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
Commissioner for Environmental Information