Ms X and Coillte

Background
Scope of the Review
Preliminary Matters
Analysis and Findings
Decision
Right of Appeal

Whether Coillte was justified, under article 9(2)(a) of the AIE Regulations, in refusing access to information coming within the scope of 19 requests submitted by the appellant.

Background

1. This case has its background in 19 separate communications submitted by the appellant to Coillte seeking access to information under the AIE Regulations. The details of the 19 requests and the reference numbers used by this Office, the appellant, and Coillte are set out in Appendix 1. For the purposes of this decision I will refer to the 19 requests as Requests 1-19. The 19 requests were submitted between 26 November 2021 and 8 January 2022, as follows:

• 26 November 2021 – Requests 1 and 2 (two requests)

• 30 November 2021 – Requests 3 and 4 (two requests)

• 7 December 2021 – Requests 5, 6, 7, 8, 9, 10, 11, 12, and 13 (nine requests)

• 9 December 2021 – Request 14 (one request) submitted

• 16 December 2021 – Requests 15, 16, 17, and 18 (four requests)

• 8 January 2021 – Request 19 (one request)

2. On 16 December 2021, Coillte sent separate emails to the appellant regarding six of the requests (Requests 3, 4, 6, 7, 12, and 14), informing her that, due to the complexity of the information requested, it required an extension in accordance with article 7(2)(b) of the AIE Regulations in order to make its decision. It specified that responses would issue not later than 29 January 2022 (Requests 3 and 4), 6 February 2022 (Requests 6, 7, 12), and 8 February 2022 (Request 14).

3. On 21 December 2021, Coillte wrote to the appellant, noting that she had made 23 separate requests between 17 November 2021 and 16 December 2021. Coillte explained that it had responded to three of those requests; however, regarding the remainder of the requests, it noted that “[i]t is not reasonable or possible for Coillte to entertain and process all these requests, even within the extended period of two months allowed for in cases of manageable but voluminous cases seeking a complex range of information. This is so, both generally and particularly at the present time, where dealing with the requests would also cause considerable difficulty for affected staff given year-end objectives/deadlines, as well as Christmas leave.” Coillte referred to article 9(2)(a) of the AIE Regulations, which provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. It indicated that it was of the view that the remainder of the requests would be refused on that basis and, accordingly, it was proposing to assist the appellant in avoiding a refusal by suggesting that she refine the aggregate scope of her remaining requests.

4. The appellant responded on the same day, indicating her position that Coillte should not conflate her individual requests and refining Request 1 (limiting it to the information sought at part 1) and Request 2 (limiting it to the information sought at parts 1 and 2). The appellant informed this Office that on 27 December 2021 that she notified Coillte that she did not wish to reformulate her other requests, however she was agreeable to a one month extension in respect of them.

5. On 13 January 2022, Coillte issued its original decision, noting that it was in respect of 21 requests submitted by the appellant, including Requests 1 to 19 (although it stated that Request 2 had not been refined and included incorrect dates for Request 1, 2 and 14). Coillte refused access to all of the information sought in full under article 9(2)(a) of the AIE Regulations. On 21 January 2022, the appellant sought an internal review and made submissions in respect of each of the requests. In doing so, she asked that each request be considered on its own merits and not in combination.

6. On 18 February 2022, Coillte issued its internal review decision, affirming its original decision under article 9(2)(a) of the AIE Regulations in respect of all 21 requests concerned. The general thrust of its position was that, due to the cumulative nature of the requests, the overall time and resources required to comply would impose a heavy burden on Coillte and unreasonably and disproportionately divert it from and disrupt it in performing its core functions, including its commercial activities. In support of its position, Coillte made a number of comments, including those summarised below:

• Coillte explained that the requests had been refused “due to their cumulatively unreasonable voluminousness and range.” It stated that the fact that so many requests were submitted within a short period of time increased the administrative burden on Coillte in responding to the requests within the timeframes specified in the AIE Regulations. It noted that if the requests had been staggered and spaced out to a greater degree, this may have facilitated Coillte in responding to the requests.

• Coillte stated that it would take over 125 hours to locate, identify and copy relevant records and involve approximately 12 members of staff across at least ten divisions. It indicated that while it may take less time to comply with some of the requests, others would take over 30 hours. It also indicated that the total estimate did not include the estimated time required for several very complex requests, which would take at least 14 hours each. It further stated that to gather the information relevant to the request dated 8 January 2022, would take a number of days.

• Coillte stated that while article 7(2)(b) of the AIE Regulations allows public authorities to extend the timeframe for response to two months due to the volume or complexity of the information requested. It pointed out that there is no provision to extend the timeframe further. It contended that the resources required to comply with the requests, ten of which were received on one day, would place an extraordinarily heavy burden on Coillte.

• Coillte outlined its understanding that the appellant had reformulated only three of the requests and noted its view that this did not have a significant and/or sufficient impact on the volume and range of information sought or the burden and cost, which it considered to be disproportionate. It outlined that the task required to be carried out to comply with the requests remained complex and voluminous.

• Coillte stated that it did not consider the information sought to be of a kind which one would expect to be organised by Coillte in a manner that enables its easy dissemination. It noted that this is because the requests “are particularly bespoke, and it requires an unrealistic level of prescience and/or specificity for Coillte to identify and disseminate same as a matter of course.”

• Coillte stated that it had considered whether the public interest in disclosure of the information outweighed the interest served by refusal. It outlined that it considered that public interests served by disclosure would be openness and transparency and by refusal would be avoiding the necessity to divert staff away from their normal activities, thereby causing substantial and unreasonable disruption to that work, and the efficient and effective performance of Coillte.

7. On 9 March 2022, the appellant submitted, and paid the required fees for, 19 separate appeals to my Office in respect of Requests 1 to 19. On 15 March 2022, she made further submissions on each separate appeal. In doing so, she included her view that the AIE Regulations do not allow for the aggregation of separate and unrelated requests for the purposes of determining refusal under article 9(2)(a) and her position on Coillte’s duties under article 5 of the AIE Regulations.

8. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the 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:

• 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).

9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.

Scope of the Review

10. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.

11. The scope of this review is concerned solely with whether Coillte was justified, under the provisions of the AIE Regulations, in refusing access to information coming within the scope of 19 requests submitted by the appellant.

Preliminary Matters

12. I consider that the scheme of the AIE Regulations, and of the AIE Directive upon which the AIE Regulations are based, makes it clear that there is a presumption in favour of release of environmental information.

13. A review by my Office is considered to be de novo, which means that it is based on the circumstances and the law at the time of my decision.

14. As noted above, the appellant submitted, and paid the required fees for, 19 separate appeals to my Office. In the circumstances of these appeals, where the public authority issued a single decision on all 19 requests at issue, and where the grounds for refusal are not directly related to the content of particular records, I have decided that a composite decision is appropriate.

15. Where a request has been reformulated, the date of receipt of that request is the date on which the request was reformulated.

16. Article 5 of the AIE Regulations and Article 7 of the AIE Directive place duties on public authorities to actively disseminate environmental information. It is not within my powers to examine the implementation of those provisions by public authorities. However, I would note that the exemption in article 9(2)(a) of the AIE Regulations is not intended to endorse any failure by a public authority to comply with its duties of dissemination of environmental under article 5 of the AIE Regulations and Article 7 of the AIE Directive. Furthermore, in every case, regard should be had to the purpose of the AIE Regime, as reflected in Recital 1 of the Preamble to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment.”

17. In its decisions and submissions to my Office, Coillte noted that it was established pursuant to the Forestry Act 1988 (as amended) to carry out the business of forestry and related activities on a commercial basis. Coillte stated that in exercise of those functions it sells land for a range of uses such as renewable energy, infrastructure, community projects, and commercial developments. Coillte outlined that it operates in a highly competitive forestry and timber supply market. Coillte stated that, accordingly, while it has a statutory remit it also operates under significant commercial pressures. I accept that the significant increase in the level of AIE activity over the past year has presented challenges for a number of public authorities, including Coillte. However, the fact remains that the administration of the AIE Regulations is a statutory obligation which should be afforded as much weight as any other statutory obligation or the carrying out of other operational or commercial functions.

Analysis and Findings

18. Article 9(2)(a) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. This provision seeks to transpose Article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and, in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.

19. Article 9(2)(a) of the AIE Regulations must be read alongside article 10 of the AIE Regulations, which provides for certain limitations on the ability of a public authority to refuse environmental information. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal and article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.

20. In this case, Coillte considered 21 requests submitted by the appellant, including the 19 requests at issue here, together. It then refused access to all of the information sought under article 9(2)(a) of the AIE Regulations. Coillte informed this Office that it concluded that a total of 21 of the appellant’s requests, when considered in the round, were manifestly unreasonable. It also outlined that the primary reason for reaching this conclusion “was due to the cumulatively unreasonable voluminousness and range of the requests received”. It further stated that because the requests were submitted within a short period of time, this increased the administrative burden on Coillte in responding to the requests within the timeframes provided for in the AIE Regulations.

21. The AIE Regulations do not provide a definition for what constitutes a request. A request for environmental information under the AIE Regulations must therefore be viewed in light of the Aarhus Convention and is best described as the occurrence of a member of the public seeking information from a public authority. In cases such as this, where the appellant sent multiple communications to Coillte, the practical implication is that some of these separate communications may reasonably be considered to constitute a single request, or a smaller number of requests. This could be done by combining communications on thematic or temporal lines. It is my view that this exercise ideally should 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.

22. The appellant submitted the requests to Coillte over a short period of time, indeed a number of them were submitted on the same day and 18 of them were submitted within 20 days.

23. Whether dealing with 21 separate requests, or a smaller number of multi-part requests, it is incumbent upon Coillte to ensure that it complies with each of the requirements of the AIE Regulations. It is clear that the volume of information requested by the appellant represented a challenge for Coillte. It is important to note that both article 7(2)(b) of the AIE Regulations and Article 3(2)(b) of the AIE Directive specifically envisage that public authorities will deal with voluminous or complex requests, albeit in a longer timeframe.

24. Crucially in this case, there was no reference to any analysis that Coillte had carried out under article 10(5) of the AIE Regulations on whether or not parts of the request could be separated out in order to provide a response to those parts. From my review of the requests, it appears to me that some of the requested information is of a kind that I would expect to be readily available to Coillte for provision to the public, particularly given its obligation under article 5(1)(b) of the AIE Regulations to maintain environmental information in a manner that is readily reproducible and accessible. For example, parts of the appellant’s communications ask for specific maps showing Coillte lands, or copies of audit reports, which are types of records that are routinely requested and provided under the AIE Regulations, and should not, in themselves, place an undue burden on Coillte. Moreover, where a request, or part thereof, involves a query about the basis for published information, such as from an annual report, there is a reasonable expectation that the background statistics or rationale for that published information would be available to Coillte.

25. In its internal review decision and its submissions to this Office, Coillte indicated that some of the requests could be processed in less time than others. However, it decided not to process these parts and instead decided to refuse all parts of all communications under article 9(2)(a) of the AIE Regulations. Article 10(5) of the AIE Regulations requires that, in circumstances where some of the requested information is subject to an exception, Coillte must still consider whether parts of the request can be answered. This includes where Coillte is relying on article 9(2)(a) of the AIE Regulations in stating that parts of the request(s) are manifestly unreasonable.

26. As a consequence, Coillte has not justified its decision to refuse access to the information sought in the 19 appeals at issue, under article 9(2)(a) of the AIE Regulations. I consider that the most appropriate course of action is to annul the decision of Coillte in respect of the 19 appeals and direct it to undertake a fresh decision-making process in respect of each. In processing the requests afresh, Coillte should have full regard to the provisions of the AIE Regulations and should seek to work with the appellant to combine the requests, where appropriate. Given comments made by Coillte in its internal review decision regarding some of the information sought, I would note that generally, prior to considering whether article 8 or 9 of the AIE Regulations applies, a public authority should assess whether the information sought is held by or for them. As Coillte ought to be aware, article 7(5) is the relevant provision to consider when the question arises as to whether requested environmental information is held by or for a public authority, however if a public authority wishes to rely on article 7(5) of the AIE Regulations in refusing access, it must set out its reasons for doing so.

Decision

27. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul Coillte’s decision under article 9(2)(a) of the AIE Regulations to refuse access to information coming within the scope of 19 requests submitted by the appellant. I direct Coillte to process the 19 requests afresh.

Right of Appeal

28. 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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Ger Deering

Commissioner for Environmental Information