Cinneadh
Mr F and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146038-D8F1N8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146038-D8F1N8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the charge proposed by Coillte is reasonable in line with article 15(1) of the AIE Regulations
1. On 14 November 2022, the appellant requested the following information from Coillte:
“an electronic copy of all Operational Monitoring Records for works in Coillte forests with the prefix GY during the months of February & March 2022. Please include details of the relevant licences.”
2. On 7 December 2022, Coillte replied to the appellant stating that it considered the request to be manifestly unreasonable citing article 9(2)(a) of the AIE Regulations. Coillte asked the appellant to refine the information request –“in order to proceed with this request, we would be grateful if you could refine it to a particular month – either February or March 2022.”
3. The appellant does not appear to have responded to this request for refinement from Coillte, and on 13 December 2022, Coillte issued its original decision for this request. Coillte’s decision was to refuse the request citing article 9(2)(a) of the AIE Regulations – that the request remains manifestly unreasonable having regard to the volume or range of information sought.
4. Later on 13 December 2022, the appellant requested an internal review of the decision. On 13 January 2023, Coillte issued its internal review affirming its original decision that the request was manifestly unreasonable in line with article 9(2)(a) of the AIE Regulations. It also set out the public interest test required under article 10(3) and 10(4) of the AIE Regulations in this regard.
5. The appellant appealed to this Office on 9 February 2023. This appeal was set up under case reference OCE-135305-W5Q4B2. The appeal was settled informally on 16 November 2023 – with Coillte agreeing to release the records at issue.
6. On 1 December 2023 Coillte emailed the appellant stating that a decision in relation to the appellant’s request for information would be forth coming. Coillte also set out the schedule of fees it was proposing to charge for AIE requests. The appellant responded to Coillte later on 1 December stating he does not“accept Coillte's Schedule of Charges as it does not accord with the findings and recommendation in ACCC/C/2017/147 para 86-89.”
7. Coillte issued its decision on 21 December 2023, where it granted release of 57 records relevant to the request, and proposed to charge a fee in line with article 15 of the AIE Regulations in relation to the same. It set out the calculation of the charge as follows:
“Search and retrieval time –12 hours @ €20ph (time spent locating relevant files/data sources and collating relevant documents contained on those files/data sources) €240
Compilation time –2 hours @ €20ph (time spent examining the documents, considering exemptions, completing redactions if required, and scheduling the records) €40
Total €280”
8. Coillte stated in the decision that“as a goodwill gesture we have applied a cap of €200 on the charges being applied which is set out in the attached invoice. Further, if you are the holder of a current medical card or are in receipt of social welfare benefit, Coillte may reduce the charge on production of evidence by you, e.g., if you forward a copy of your medical card” . It also added details on how to make payment, stated that payment will be required in advance of disclosure, and gave details on how to request an internal review of this decision.
9. The appellant responded to Coillte later on 21 December 2023 requesting an internal review and provided the following reasons:
“No schedule of records has been provided which leaves a requester in doubt as to precisely what they are being expected to pay for. The fees charged are unreasonable as Coillte is seeking to charge for activities which the ACCC has found are not eligible for charging. In the meantime can you please provide me with a full schedule of records.”
10. As the appellant had not received a response from Coillte within the timeframe required by the AIE Regulations, he appealed to this Office on 31 January 2024 on the basis of a deemed refusal. He said:“I wish to make an appeal under Article 12 (3) of the AIE Regulations based on Coillte's failure to issue a decision on my request for an internal review of request reference 20230235. This case was remitted on appeal under OCEI reference 135305. As such, I understand that no fee applies. No schedule of records has been provided despite a request for the same.”
11. On 13 February 2024, the internal review decision was issued to the appellant by Coillte. Coillte sent a copy of the internal review to this Office. This set out Coillte’s effective position:
“Article 15 of the AIE Regulations states the following:
“(1)(a) A public authority may charge a fee when it makes available environmental information in accordance with these Regulations (including when it makes such information available following an appeal to the Commissioner under article 12), provided that such fee shall be reasonable having regard to the Directive.”
Recital 18 of the Directive states:
“Public authorities should be able to make a charge for supplying environmental information but such a charge should be reasonable. This implies that, as a general rule, charges may not exceed actual costs of producing the material in question. Instances where advance payment will be required should be limited. In particular cases, where public authorities make available environmental information on a commercial basis, and where this is necessary in order to guarantee the continuation of collecting and publishing such information, a market-based charge is considered to be reasonable; an advance payment may be required. A schedule of charges should be published and made available to applicants together with information on the circumstances in which a charge may be levied or waived.”
This language is mirrored in Article 5 of the Directive, which states at sub-articles (2) and (3):
“2. Public authorities may make a charge for supplying any environmental information but such charge shall not exceed a reasonable amount.
3. Where charges are made, public authorities shall publish and make available to applicants a schedule of such charges as well as information on the circumstances in which a charge may be levied or waived.”
It is clear from the AIE Regulations and the Directive that Ms Byrne was acting wholly within her powers to levy the Charges on behalf of Coillte for the provision of environmental information falling within the Request.
Consideration of the Moldova Findings
You have requested that my internal review decision refers to the Moldova Findings. My role pursuant to Article 11 of the AIE Regulations is to review the substance of the Initial Decision and I am not obliged to consider any information that was not submitted in the Request or cited in the Initial Decision. Without prejudice to this position, I note the following points in relation to the Moldova Findings: The Moldova Findings relate to a communication from a non-governmental organisation to the Compliance Committee of the Aarhus Convention1 alleging that the Republic of Moldova had failed to comply with its obligations under the Aarhus Convention with respect to the regulatory framework for costs charged for environmental information. The costs charged in that matter were the equivalent of €35,700 at that time. The Charges relating to this matter (as defined above) are €280. As a goodwill gesture a cap of €200 was applied on the charges, which is set out in the invoice that issued with the Decision. The Moldova Findings also state that while there is a presumption that environmental information be provided free of charge under Article 4(8) of the Aarhus Convention, “…Parties may allow charges provided that they do not exceed a reasonable amount. The Convention safeguards this requirement by obliging public authorities to make available to applicants a schedule of charges that may be levied, indicating the circumstances in which they may be levied or waived and when the supply of information is conditional on the advance payment of such a charge.” A schedule of fees was provided to you with the Initial Decision.
For these reasons, I do not agree with your interpretation of the Moldova Findings, which allow for the imposition of reasonable fees in making environmental information available. The Charges are reasonable because they are not excessive, and they relate directly to the work involved in producing the environmental information.
Schedule of Records - In requesting an internal review, I have noted you commented as follows: “No schedule of records has been provided which leaves a requester in doubt as to precisely what they are being expected to pay for”. The provision of a Schedule of Records with a Decision, whilst good practice, is not obligatory. In any event, Coillte has prepared a Schedule of Records but it has not been furnished to you for two reasons, (i) because the nature of the records available to be furnished to you will be self-evident arising from the specific nature of your Request, i.e. they are 57 “Operational Monitoring Records for works in Coillte forests with the prefix GY during the months of February & March 2022” and (ii) because the creation of a Schedule of Records forms part of the work for which the charge of €200 applies and will only be furnished with the records upon receipt of payment of the charge.
For the reasons detailed in full above, I affirm the Initial Decision. Coillte will provide you with a total of 57 records, containing the information sought in the Request upon payment of the Charges.”
12. On 19 February 2024 the appellant emailed this Office stating he was making an appeal under Article 12 (3) of the AIE Regulations based on Coillte's effective position on AIE request 20230235 which was appealed under OCE-146038-D8F1N8.
13. On 19 February 2024 this Office informed the appellant it was accepting his appeal. On the same day this Office informed Coillte we had accepted the appellant’s appeal on the issue of fees, and invited it to make submissions.
14. 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 Coillte. 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’).
15. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
16. In its submission of 4 October 2024, Coillte raised a“preliminary objection” that new issues had been raised beyond the scope of the appeal. It said the raising of new issues by an appellant at this stage in a statutory appeal is“unusual and potentially prejudicial.”
17. The objection made by Coillte appears to be based on the fact that upon notification of the acceptance of the appeal to Coillte on 19 February 2024, this Office attached a copy of the appellant’s preliminary submission in relation to the deemed refusal, rather than in relation to the effective position. This appears to have caused some confusion and the correct preliminary submission should have been sent to Coillte. However, this occurred as Coillte did not issue its internal review decision to the appellant within the time line provided for in the AIE Regulations in the first instance, and I note that the effective position contains an apology in that regard.
18. Usually the practice of this Office would be that an appeal in relation to a deemed refusal would be closed under one case reference number once an effective position is issued by the public authority, and if the appellant appeals the effective position internal review issued by the public authority a new case would be set up under a separate reference number. In this case the appeal on the basis of the deemed refused had not yet been confirmed as accepted by this Office before the late internal review/effective position issued therefore the appeal on the basis of theeffective position (set out in paragraph 11 above) of Coillte continued under the same reference number OCE-146038-D8F1N8.
19. In the correspondence notifying Coillte that the appeal had been accepted by this Office on 19 February 2024, it did explicitly state the appeal was in relation to fees (ie the issue addressed in the effective position internal review letter that had been issued a few days earlier on 13 February 2024). Furthermore, an investigator from this Office responded to Coillte’s request for clarification that the appellant was appealing the fee proposed by Coillte on the basis that it is unreasonable, rather than on the basis of the deemed refusal.
20. On this basis I do not accept the preliminary objection made by Coillte here, and consider the scope of this appeal to relate to the reasonableness of the charge proposed by Coillte in relation to the information sought, rather than the deemed refusal.
21. From a fair procedures perspective, I am satisfied that all of the material facts in relation to this appeal have been brought to Coillte’s attention over the course of this appeal and it has had ample opportunity to address them and that no prejudice has occurred.
22. A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law at the time of this decision. This appeal was originally brought to this Office by the appellant as a deemed refusal as Coillte had not issued its internal review within the timeframe stipulated by the AIE Regulations. The appeal was accepted by the Commissioner only after the appellant had appealed the effective position of Coillte. Accordingly, I consider it appropriate to examine the reasonableness of the proposed fee, notwithstanding the fact that the appeal was originally brought to us by the appellant as a deemed refusal.
23. Even if I was to take a more restrictive approach, and find that the issue of the reasonableness of the fee and the cumulative impact of the fees, was outside the scope of the appeal, the appellant would simply need to make a new appeal for the information at issue explicitly mentioning the unreasonableness of the fee. This would simply create added work for this Office and therefore it is more efficient and appropriate for me to deal with the substantive issue of whether the fee proposed by Coillte for the information at issue is reasonable.
24. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority's internal review decisions and to affirm, annul or vary them. Article 11(5) of the regulations sets out that a reference to a request being refused, in whole or in part information includes a request that has not been dealt with in accordance with Articles 3, 4 or 5 of the AIE Directive, including the ground that the amount of the fee charged under article 15(1) is excessive.
25. In this appeal, Coillte has decided to grant the appellant’s request, subject to payment of a fee. The appellant submits that the fee in this case is not reasonable. As such the scope of my review in each case is confined to whether or not the request has been dealt with in accordance with Article 5(2) of the AIE Directive (implemented by article 15(1) of the AIE Regulations.)
26. Coillte wrote to this Office on 12 July 2024, identifying the appeal as one which may be suitable for informal resolution. Its reasoning was that the information requested in this appeal is similar to those requested in recent decisions issued by the Commissioner, where Coillte’s decision to charge a fee for the supply of information was affirmed. Coillte stated:“I confirm that on production of satisfactory proof of means the charge will be reduced to a rate of €6 per hour. The charge here is based on 12 hours work for production of 57 records so that would reduce the total from €200 (which the charge was capped at) to €72. I am open to further discussions if the Appellant is willing to engage in informal resolution. ”
27. An investigator from this Office put Coillte’s offer of an informal resolution (with payment of a 72EUR fee) to the appellant on 17 July 2024. The appellant rejected this offer. On 19 July 2024, Coillte responded to this Office stating it was willing to reduce the appellant’s charge to 60EUR on production of satisfactory evidence of means (as a gesture of goodwill). It also stated that it has amended its website to remove any ambiguity and that it now states the chargewill be reduced on production of evidence of means (as opposed to“may” ). Coillte also set out the steps it took to search and retrieve the information at issue, why it took 12 hours and why it believed 60EUR to be an objectively reasonable amount based on the work involved (one of the tests set out by the ECJ inEast Sussex to determine whether a charge for the supply of information is reasonable.)
28. The appellant again rejected Coillte’s offer to settle the appeal informally and reiterated the point he made in his earlier submission regarding the cumulative impact of the fees charged by Coillte being a deterrent. This Office informed Coillte of the appellant’s refusal to accept this further offer to settle informally, and put to Coillte the points he made in relation to the cumulative effect of the fees. An investigator from this Office also put a number of queries to Coillte for comment, regarding the reasonableness of the fee it was proposing.
29. Given that the further reduction to 60EUR offered by Coillte was, in my view, a discretionary offer in an effort to settle this matter, I will consider the reasonableness of the proposed charge of 72EUR in this decision which is in line with Coillte’s schedule of fees where the appellant produces appropriate evidence of their means. It is open to Coillte to offer further reductions on fees, if it wishes to do so in the circumstances of a particular case.
30. The appellant’s reasons for appealing the decision of Coillte to charge a fee for the supply of the information at issue can be summarised as follows:
The charges applied by Coillte are unreasonable and act as a deterrent to him accessing environmental information
The information requested is of a typewhich should be actively disseminated under Article 7 (2) (e) of the AIE Directive; “(e) data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment;” It would be contrary to the principles of the AIE Directive for a public authority to be permitted to charge for such information.
Coillte’s intention to charge for indirect costs associated with the supply of information is inconsistent with theFindings and recommendations of ACCC communication ACCC/C/2017/147 (paragraph 89).
Coillte should not be able to seek payment up front except in exceptional circumstances
Coillte are refusing to provide a schedule of records, and as they routinely apply a restrictive approach to the interpretation of his requests, he does not know what Coillte considers ORMs to include.
The cumulative impact of multiple fees will be a deterrent to him. His voluntary work is aligned with the principles of the Aarhus Convention and Coillte is adopting a position that is seeking to obstruct his work
31. In a later submission to this Office the appellant expanded on why he believes the cumulative impact of the fees should be taken into account. His main points can be summarised as follows:
Since the 29 May 2024 he has paid Coillte hundreds of Euro for environmental information. This is more than he can afford and the repeated charging of fees is effectively placing a cap on the amount of environmental information that he can access. This is unreasonable and contrary to the principles that underpin the Regulations/Directive.
He is a medical card holder and the reasonableness of the fee must be assessed in terms of the requesters capacity to pay.
The ECJ decision in East Sussex is unsound and deserving of challenge – it is not consistent with the position of the ACCC.
Coillte has no incentive to actively disseminate information when it can charge for the same information. Coillte has not actively disseminated any information that has reduced his need to make routine AIE requests, therefore it is trying to frustrate his access to environmental information.
He disagrees with the Commissioner’s previous comments that Coillte charging even where the fee does not justify the expense for processing the payment, is a matter for Coillte. The total cost of accessing information on Operational Monitoring Records across Coillte's estate would run to hundreds if not thousands of euro annually
32. Coillte clarified in submission to this Office that the search, retrieval and compilation of the requested records had been carried out (rather than estimated). Its explanation with regards how it calculated the charge proposed can be summarised as follows:
The search and retrieval work of the 57 records took 12 hours, and the compilation (involving applying exemptions and scheduling the records) work took 2 hours.
Coillte has carried out the work therefore this case does not involve an advance charge (which would be the case if the charge was based on an estimate of how long the work would take to complete).
Coillte attempted to explain apparent discrepancies raised by the appellant as follows – the invoice which issued to the appellant on 21 December 2023 does charge for compilation time stating“€20 per hour for search, retrieval, compilation and copying” , however the total of that invoice was capped at €200 and accordingly the time spent carrying out the overall work was stated on the invoice to be 10 hours in line with the capped total (rather than 12 hours for search and retrieval and 2 hours for compilation time)
The following is a breakdown of the work carried out in search and retrieval of the records identified as relevant to the appellant’s request:
With regards time it spent on applying exemptions, Coillte has pointed to previous decisions issued by the Commissioner where the decision to charge a fee for the supply of information was affirmed, and noted the calculations in those cases included time spent on applying exemptions.
33. Coillte position with regards the reasonableness of the charge proposed, and the appellant’s cumulative impact argument, can be summarised as follows:
The burden of demonstrating the unreasonableness of a charge with reference to his own financial capacity, rests with the appellant – and the appellant has not produced any evidence of his actual ability to pay the 72EUR charge
With regards the“objective element” of the ECJ’sEast Sussex test for reasonableness of a charge for supplying environmental information, Coillte says the average member of the public would consider that either €200 or €72 for 14 hours work and the release of a substantial body of environmental information to be objectively reasonable.
This“cumulative impact” argument runs contrary to the intent and purpose of the charging provision in the Directive which provides that public authorities ought to be able to charge for the provision of environmental information – the purpose of which is that the total financial burden of administering the AIE regime does not entirely fall upon public funds, but rather is shared and/or offset by the requestor.
As the purpose of the charging provisions is to offset the cost of releasing environmental information on the foot of an individual request, the assessment of the reasonableness of the costs should similarly be limited to the particular request.
The consideration of historic charges could create an inequitable outcome whereby serial AIE requestors, who disproportionally increase the burden on public funds for the administration of the AIE regime, would not be required to off-set any of the cost of their requests. Whereas first time requestors, who by comparison create significantly less of an administrative and financial burden relative to the serial requesters, would be disproportionately charged.
The obligation to consider the cumulative impact of previous charges would create an entirely unworkable charging system – for example consideration of whether there should be a temporal limit and how that would operate
The obligation to take into account the cumulative impact of previous AIE request charges would stray beyond Article 5(2) of the Directive
34. With regards Coillte’s current system for holding records of the type requested by the appellant in this case, it made the following points in submission to this office:
While the appellant regularly requests OMRs for forests in specific counties, such records are rarely requested by other persons under the AIE Regulations.
There is no legal or other onus to change its system of searching and retrieving this information to actively disseminating this type of information. The current system that is in place is sufficiently efficient, having regard to the nature of the information sought and the purpose of its collection. In this respect, the records reflect observations made and actions taken by foresters and are stored using an industry standard system, for the purpose of good forestry management is reasonable.
Investment in a parallel system geared towards active dissemination would require that the OMRs for all forests nationally to be copied, reviewed, redacted, uploaded to the parallel system, and disseminated as they are created. This would involve a significant and unjustifiable financial investment in the absence of any legal obligation.
Given that these records are created practically on a daily basis and because the most significant cost would relate to the review and redaction of the records, the costs would not merely be an upfront cost, but would be continual, requiring the permanent allocation of resources to such a task.
To invest in a parallel system for dissemination potentially for the entire country would be an unjustifiable use of funds that might be better spent on a myriad of other projects that are of wider public interest.
35. Article 5 of Directive 2003/4/EC provides:
“1. Access to any public registers or lists established and maintained as mentioned in Article 3(5) and examination in situ of the information requested shall be free of charge.
2. Public authorities may make a charge for supplying any environmental information but such charge shall not exceed a reasonable amount.
3. Where charges are made, public authorities shall publish and make available to applicants a schedule of such charges as well as information on the circumstances in which a charge may be levied or waived.”
36. Article 15(1) of the AIE Regulations broadly transposes article 5 of the Directive and provides as follows:
“15 (1) (a) A public authority may charge a fee when it makes available environmental information in accordance with these Regulations (including when it makes such information available following an appeal to the Commissioner under article 12), provided that such fee shall be reasonable having regard to the Directive.
(b) Notwithstanding sub-article (a), a public authority shall not charge a fee for access to any public registers or lists of environmental information pursuant to article 5(1)(d).
(c) Notwithstanding sub-article (a), a public authority shall not charge a fee for the examination in situ of information requested.
(d) Where an applicant examines information in situ and wishes to obtain copies of that information, a public authority may charge a fee, consistent with the list of fees specified under article 15(2) for the provision of such copies.”
37. The question to be addressed in this appeal is whether the fee of 72EUR, imposed by Coillte in this case, is reasonable as per the requirements of article 15(1) of the AIE Regulations. There is no definition in the Directive or the Regulations as to what a“reasonable” amount is. Therefore, it is necessary to rely on case law to determine what is meant by“reasonable” .
38. In his Opinion in Commission v Germany which concerned Directive 90/313/EEC (the predecessor of the current AIE Directive), Advocate General Fennelly considered that the notion of what is“reasonable” must be interpreted in light of the general scheme and purpose of the Directive. In light of this,“the question of whether the charges for the supply of information are ‘reasonable’ must be judged from the perspective of the member of the public requesting the information, rather than that of the public authority” (paragraph 23).
39. The Advocate General’s view was that, unlike most other categories of publicly held information, the likely cost will inevitably have a direct bearing on the extent to which the public will use the right of access. He considered that“requiring the individual seeker of information to bear what is effectively the entire cost of processing the request would amount to restricting the enjoyment of the right of access, in practice if not in law, to those who have a direct interest in the information, contrary to the clear exclusion of the need for such an interest” (paragraph 25).
40. He also noted that“since access to environmental information is in the public interest, it follows that public authorities, and, ultimately, the general public through the State budget, should bear that part of the burden of making this information available which is represented by the time and effort of public officials” (paragraph 24).
41. He was“of the opinion that Article 5 should be interpreted as allowing Member States to charge either a standard scale of fees, which need not be based directly on the direct costs, or a charge based directly on such costs” but that “in neither case may the fee or the charge exceed an amount which is equivalent to reasonable, direct costs, or be such as to permit the charging out of part of the cost and time of a public authority in performing a public duty” (paragraph 32).
42. In C-71/14 East Sussex County Council v Information Commissioner, the Court of Justice found that all of the factors on the basis of which the amount of the charge is calculated must relate to the actual costs of supplying the requested information. This may include the costs attributable to the time spent by the staff of the public authority concerned on answering an individual request for information, including the time spent on searching for the information and putting it in the form required.
43. The Court found that the expression“reasonable amount” in the AIE directive does not include any amount that may have a deterrent effect on persons wishing to obtain information or that may restrict their right of access to information. The Court found that“in order to assess whether a charge…has a deterrent effect, account must be taken both of the economic situation of the person requesting the information and of the public interest in the protection of the environment. That assessment cannot therefore relate solely to the person’s economic situation but must also be based on an objective analysis of the amount of the charge. To that extent, the charge must not exceed the financial capacity of the person concerned, nor in any event appear objectively unreasonable” (paragraph 43).
44. The appellant has stated that the Commissioner should take into account the“cumulative impact” of the fees that Coillte have charged him for AIE requests. He says he makes frequent requests under the AIE regime to Coillte, due to what he says is a failure by Coillte to actively disseminate information in line with their obligations under the AIE Directive.
45. The role of the Commissioner under article 12(5) of the AIE Regulations is to review the internal review decision made by a public authority in relation to a particular request, and to affirm, vary or annul that decision. I consider that the question before me is the reasonableness of the particular fee charged in this instance in relation to this particular request. In considering whether this fee is reasonable having regard to the AIE Directive (as required by article 15(1)(a) of the AIE Regulations), I do not consider that it would be appropriate for me to take into account charges in relation to previous AIE requests made by the appellant for information held by or for Coillte.
46. There is nothing in the AIE Regulations, AIE Directive or inEast Sussex (the leading ECJ authority on fees) that suggests that when considering the reasonableness of a fee, account can or should be taken of charges imposed in relation to previous AIE requests made by the appellant. Due to this, I consider that the reasonableness of each individual fee should be assessed on a case by case basis. The effect of this is that if an appellant makes multiple AIE requests to a public authority then in theory he may be charged multiple fees (as long as it is reasonable to do so on the facts of that particular case). This is similar to when an appellant brings an appeal to this Office – a set fee is charged, which does not vary based on how many other appeals may have been brought by the appellant to this Office.
47. However, while I do not consider it appropriate to consider the cumulative effect of charges in relation to previous AIE requests on the appellant - the ECJ inEast Sussex is quite clear that account should be taken of the economic situation as a whole of the requester when a public authority considers the reasonableness of a fee in relation to environmental information.
48. To determine whether the charge imposed by Coillte in this case has a deterrent effect on persons wishing to obtain the information or that may restrict their right of access to information, I first must take account of the economic situation of the requestor. Coillte, stated that the appellant should inform it if he was a current medical card holder or in receipt of social welfare benefit, in which case it may charge a reduced fee of 6EUR per hour. Coillte has now stated that it has amended its website to say it “will” provide a reduced fee in such circumstances. Coillte has stated that it is charging a reduced rate of 72 EUR on production of evidence by the appellant - I consider that in providing for such a reduced rate, Coillte has taken into account the economic situation of the requestor.
49. For the second limb of the test to determine whether the charge in this case has a deterrent effect, I need to consider the whether the charge is objectively reasonable.
50. Coillte has set out the basis on which the charge was calculated – the appellant was charged a fee of 20EUR per hour for 12 hours of search and retrieval work. Coillte’s position is that its current system is sufficiently efficient, having regard to the nature of the information sought and the purpose of its collection. It says the records reflect observations made and actions taken by foresters and are stored using an industry standard system, for the purpose of good forestry management. It is submitted taking 14 hours to search for, retrieve, copy and/or compile into a pdf document or excel spread sheet, and then review and redact 57 high level technical forestry documents using this system is an entirely reasonable timeframe.
51. It was unclear from Coillte’s initial correspondence whether the charge proposed was based on search and retrieval/compilation work it had carried out already, or whether it was based on an estimate. An investigator from this Office asked for clarification from Coillte, who stated that the search and retrieval work for the records at issue has been carried out. Coillte has set out what was involved in this work and how the 12 hour- time frame was arrived at in some level of detail (see paragraph 32 above)
52. Coillte also detailed how the time it took to then“compile” the information took 2 hours. It explained that compilation consisted of“time spent examining the documents, considering exemptions, completing redactions if required, and scheduling the records.” As Coillte is proposing to charge 72EUR (ie the calculation of the time spent on search and retrieval at a reduced rate of 6EUR per hour), the charge for this 2 hours spent on compilation is a total of 12EUR. While it is reasonable for a public authority to take into account time taken to schedule and compile the documents – I consider charges for time spent on application of exemptions set out in the AIE Regulations in order to withhold information, should be kept at a minimum. I say this because the application of exemptions can be subjective. However, given that the charge for this portion of the work is 12EUR, with a total proposed charge of 72EUR, I do not consider this to affect the reasonableness of the fee as a whole. Coillte should take note of this, and in future cases may wish to consider detailing the time spent on the consideration of exemptions and the completion of redactions separately to the time spent compiling the information sought.
53. Article 15(1) makes it clear that the question of what is a reasonable fee must be approached having regard to the requirements of the AIE Directive. Article 3(5) of the Directive requires Member States to ensure that“officials are required to support the public in seeking access to information” and that“the practical arrangements are defined for ensuring that the right of access to environmental information can be effectively exercised” . Article 7(1) seeks to ensure that public authorities are required“to organise the environmental information which is relevant to their functions and which is held by or for them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology, where available”. With this in mind, it is clear that AIE requests of a general nature often are of a kind that one would expect to either be proactively published by the public authority or organised and maintained by the public authority in a manner that enables its easy dissemination on request. In such circumstances I do not think it would be reasonable to allow a public authority to rely on its own failure to adequately organise its information to justify the imposition of a charge on the appellant in respect of work which arguably would not have been required had proper document management arrangements been in place.
54. Having said that, I am not persuaded the particular information request at issue in this appeal falls into the category described above, rather it appears to be quite far on the specific end of the spectrum– namely Operational Monitoring Records forworks in Coillte forests with the prefix GY during the months of February & March 2022 . As such I am not persuaded it is information that I would necessarily expect Coillte to be proactively publishing or hold in a way that enables easy dissemination. I consider that Coillte’s explanation as to why it holds the information sought in the manner that it does is reasonable in the circumstances. I also note that this Office has no jurisdiction to consider the general duties of a public authority in relation to environmental that arise under article 5 of the AIE Regulations, and I am restricted to considering this as an element of the reasonableness of the fee under article 15 of the AIE Regulations.
55. On balance I am satisfied with Coillte’s explanation of how it arrived at an estimated timeframe of 12 hours for the search and retrieval of the records at issue. The breakdown it has given in how it arrived at this timeframe, does not to my mind seem disproportionate or excessive. Furthermore, I would point out that the steps in the process detailed by Coillte for the search and retrieval of the information are of the type that this Office would expect to be undertaken in response to a request for environmental information.
56. This does not contradict or negate from my sentiments in previous decisions, as pointed out by the appellant in his submissions, that there is nothing to stop the public authority from publishing such information regularly, thereby avoiding the need to process AIE requests seeking such specific information. Indeed, greater proactive publication of environmental information is a significant tool in managing the number of AIE requests made on such matters.
57. I say this bearing in mind Coillte’s submission that setting up a process to allow regular active dissemination of records of the type requested by the appellant in this case would require an investment in a parallel system geared towards that specific purpose – and that this would require unjustified financial investment. It said“This would require that the Operation Monitoring records for all forests nationally to be copied, reviewed, redacted, uploaded to the parallel system, and disseminated as they are created. This would involve a significant and unjustifiable financial investment in the absence of any legal obligation. Furthermore, given that these records are created practically on a daily basis and because the most significant cost would relate to the review and redaction of the Records, the costs would not merely be an upfront cost, but would be continual, requiring the permanent allocation of resources to such a task. Furthermore, while the appellant does regularly request these records for forests in certain counties, they are not typically requested and have only been sought by a small number of other requesters for discrete areas/periods. As such to invest in a parallel system for dissemination potentially for the entire country would be an unjustifiable use of funds that might be better spent on a myriad of other projects that are of wider public interest.”
58. But overall I am not persuaded by the appellant’s argument, particularly bearing in mind the specific and detailed nature of his request, that the charges proposed by Coillte are as a result of failure to comply with its duties under the AIE Directive. I have seen no evidence that this is the case.
59. Turning to the issue of the fee itself, Advocate General Fennelly’s Opinion in case C-217/97 made it clear that overall reasonableness of a fee must be judged from the perspective of members of the public, not public authorities. I have found that the explanation by Coillte of how it arrived at 12 hours is satisfactory, as is the charge of 6EUR per hour based on the reduced rate applied. Drawing on my experience from my various statutory remits, I consider that the average member of the public would not necessarily find 72EUR to be an unreasonable sum of money in the context of the number of hours spent by the public authority processing this request and the volume of records it concerns.
60. Taking all of this into account, in the circumstances of this case I am not persuaded that the fee imposed by Coillte is unreasonable either subjectively or objectively – the test set out by the ECJ in East Sussex to determine whether the charge imposed has a deterrent effect on persons wishing to obtain the information or that may restrict their right of access to information. It follows that I find that Coillte is justified in charging a fee of 72EUR in this case.
61. I acknowledge that the appellant disagrees with the test set out by the ECJ inEast Sussex . He contends“I consider the decision in the East Sussex case to be unsound and deserving of challenge. It is certainly not consistent with the position of the ACCC. Access to Justice through the Courts would impose a whole new level of financial burden on me.”
62. By way of background, the ACCC was established under Article 15 of the Aarhus Convention and serves as a compliance mechanism whereby Parties to the Convention or members of the public may, for example, bring a concern regarding the implementation of the Convention to the Committee for consideration. It is a non-confrontational, non-judicial and consultative mechanism established to review compliance by Parties to the Convention. While it is useful to refer to, the question before me is whether the public authority in this appeal acted in accordance with article 5(2) of the Directive, and applied article 15(1) of the AIE Regulations correctly, and in deciding this I am bound by the relevant case law. I have set out above the ECJ in East Sussex clearly stated that charging for time spent on search and retrieval of records is permitted therefore I find that Coillte was entitled to take this into account when calculating the charge.
63. The appellant is of the opinion that as he makes frequent requests of this nature, Coillte is trying to deter him by charging a fee. This decision deals with the circumstances of this particular appeal only, and while I have found the fee proposed by Coillte is reasonable in this instance, I make no determination on whether fees charged in relation to any other AIE requests made by the appellant or any other requestor are justified. This is to be determined on a case by case basis, having regard to the particular merits of the appeal before me.
64. The appellant asserts that Coillte’s requirement for the charge to be paid in advance of the information being released is contrary to the Directive. Recital 18 of the AIE Directive clearly states that requests for the charge to be paid in advance of the information being released is allowed in limited circumstances. It does not say that public authorities are not allowed to do this, rather that there are limits to doing so. Coillte has clarified with this Office that it is not proposing an advanced payment in this case – it has stated that the search, retrieval and compilation of the information has already been carried out. Therefore, the argument regarding whether advanced payment is reasonable in this case is not relevant and I will not consider it for the purposes of this decision.
65. The appellant is unhappy that Coillte has not provided him with a schedule of records with its decision to charge him a fee. He says he should have the opportunity to examine the schedule of records in order for him to determine whether he should pay the charge proposed by Coillte to receive the information. While there is no obligation contained in the regulations to provide such a schedule, it is best practise to do so, and public authorities are encouraged to provide requestors with a schedule of records when processing AIE requests. There is also no obligation contained in the Regulations for public authorities to provide a schedule of records in advance of a fee being received by a public authority for the supply of environmental information.
66. I have found the charge proposed by Coillte in this case is reasonable, and that Coillte are not obliged to provide the appellant with a schedule of records in advance of the fee being paid. Coillte has informed the appellant that it has identified 57 records relevant to his request, and it is for the appellant to decide if he wants to pay the charge for the supply of those records. -If the appellant pays the charge proposed by Coillte, and subsequently is unhappy with the records for example if there is information missing which he believes should be there, he can make a new appeal to this Office if he chooses to do so.
67. Having carried out a review under article 12(5) of the AIE Regulations, I affirm Coillte’s decision to charge a fee for the supply of information in line with article 15(1) of the AIE Regulations.
68. 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