Cinneadh
Mr. X and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150213-X7V5R2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150213-X7V5R2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
1. This decision relates to a previous decision of this Office dated 13 December 2023, which concerned eight requests. For ease of reference, I have set out in the table below the eight requests, including the previous reference numbers used by Coillte and the Commissioner, as well as how those requests were referred to in the decision dated 13 December 2023. For the purposes of this decision I will refer to the requests as A-H, as described below.
| Appellant Reference | Coillte (previous reference) | OCEI (previous reference) | Request (as referred to in decision 13 December 2023) | Coillte (new Reference) |
| Kiltyfeenaghty Road Upgrade | 20220011 | OCE-121815-Y1T4M6 | Request A | 20240088 |
| Road Upgrades Staks 21 | 20220012 | OCE-122151-X4W3C6; | Request B | 20240089 |
| Coillte Road Upgrades Slieve Aughty 20-21 | 20220014 | OCE-122362-R2X6T1 | Request E | 20240090 |
| Coillte Road Upgrades Slievefelim 20-21 | 20220019 | OCE-122369-Z6M8L3 | Request C | 20240091 |
| Coillte Road Upgrades Mullaghanish 20-21 | 20220023 | OCE-122373-C2W6G5 | Request D | 20240092 |
| Slieve Beagh Road Upgrades 20-21 | 20220027 | OCE-122354-F2H0W6 | Request F | 20240093 |
| Slieve Bloom Road Upgrade 21/2 | 20220156 | OCE-127475-L1H4H2 | Request G | 20240094 |
| Coillte Slieve Blooms Road Upgrades (3) | 20220238 | OCE-129543-Y6M3K5 | Request H |
2. The specific detail of each request is set out in the Appendix to the decision dated 13 December 2023 and is also set out in the Appendix to this decision. However, briefly, I wish to note that requests B to H each had a part (a) to (j), which concerned the following:
(a) Forest Area reference
(b) CN reference number (where applicable)
(c) Felling licence number of area served by the road (where applicable)
(d) Location of upgrade (map)*
(e) Length of upgrade
(f) Date/s of upgrade works
(g) Source of road materials
(h) AA Reports
(i) NIS (if applicable)
(j) Records of any consultations including public consultation
3. Request A was slightly different, having a part (a) to (g): (a) Works specification, (b) Env Assessments incl AA Screening, (c) Date of works, (d) All consultations with local land owners, (e) Permissions sought and received, (f) Details of Rights of Way, (g) Correspondence.
4. In the decision dated 13 December 2023, I annulled Coillte’s previous decisions relating to requests A to F and parts (c), (d), and (g) of request G under article 9(2)(a) of the AIE Regulations and directed it to undertake a fresh decision-making process in respect of same. I affirmed Coillte’s decision to refuse access to information relating to part (e) of request H under article 7(5) of the AIE Regulations.
5. Following significant delay, Coillte issued its new internal review decision on 14 June 2024, stating that it had decided to “grant partial access to the information sought subject to payment of applicable charges…” I have summarised Coillte’s decision below:
• Coillte stated that it was giving access to certain information under article 7(3)(a)(ii) in another form/manner, as follows:
o Request A – part (h) via landdirect.ie (presumably the reference to part (h) is actually part (f) as there was no part (h)).
o Requests B to G – part (c) (felling licence number of area served by the road (where applicable) and part (d) (location of upgrade (map)), via the Coillte Web Viewer
• Coillte, stated that it was refusing access to certain information under article 7(5) of the AIE Regulations, as follows: Request A – parts (a), (b), (c), (d), (e), and (g)
• Coillte stated that it was granting access to certain information, as follows:
o Requests B to G parts (a) (Forest Area Reference), (b) (CN reference number, where applicable), (e) (length of upgrade), (h) (AA Reports), (i) (NIS Reports, if applicable), and (j) (records of any consultations, including public consultation) of those requests (however, in doing so it noted that only parts (c), (d), and (g) of Request G were relevant to the decision dated 13 December 2023). It commented “I am granting access to this information where it exists subject to payment of applicable charges…The information will be provided to you in a list of areas and time periods set out in each Request following completion of the required work…”
o Coillte also stated, seemingly, in relation to part (e) “the exact location of the works carried out (and subsequent length of the works) does not exist. The length of the forest road segment where works took place will be provided.”
o Coillte also stated in relation to part (f) (date/s of upgrade works) “…please note that we are unable to confirm the actual dates of works. Information relating to this element of the Request is generated in the first instance by external third parties, being the relevant contract staff who completed the works. A summary of all works carried out each month is submitted to Coillte by contract staff for payment purposes. On that basis, the most accurate information we have relating to dates of works is confirmation of the month works were paid for, in most cases this will align to when the works took place. Details in relation to the relevant month and year will be provided in the list to be created.”
• Coilllte made no detailed reference to part (g) of requests B to G.
• Coillte stated the seven separate remitted requests (A-G) effectively constitute a single request.
• Coillte stated that charges will apply. Coillte stated that the charge was €1240 (based on 62 hours of work at €20 per hour), which it reduced to €620 (subsequently reduced to €186 due to Medical Card).
6. The appellant submitted an appeal to this Office on 2 July 2024 and his submissions of that date were provided to Coillte on 24 July 2024.
7. On 23 October 2024, Coillte informed this Office that its position regarding the information that it had intended to grant access to had changed and it was now refusing access under article 9(2)(a) of the AIE Regulations.
8. I have carried out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between Coillte and the appellant, as outlined above, and to correspondence between this Office and both Coillte and the appellant. 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.
10. In accordance with article 12(5) of the AIE Regulations, the role of this Office 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, the Commissioner will require the public authority to make available environmental information to the appellant.
11. As noted, this case relates to my decision dated 13 December 2023. The scope of that decision concerned whether Coillte was justified in its decisions to refuse access to information relating to requests A to F and parts (c), (d), and (g) of request G under article 9(2)(a) of the AIE Regulations, and in its decision to refuse access to information relating to part (e) of request H under article 7(5) of the AIE Regulations. I annulled Coillte’s decisions relating to requests A to F and parts (c), (d), and (g) of request G under article 9(2)(a) of the AIE Regulations and directed to undertake a fresh decision-making process in respect of same. I affirmed Coillte’s decision to refuse access to information relating to part (e) of request H under article 7(5) of the AIE Regulations.
12. While this appeal concerns Coillte’s new internal review decision dated 14 June 2024, it is also limited by what was at issue in the decision dated 13 December 2023. I note that the appellant referenced request H in his statement of appeal. However, given my previous decision dated 13 December 2023, it is my current view that this review does not concern request H or parts of request parts (a), (b), (e), (h), (i), and (j) of request G. This appeal is confined to matters concerning requests A to F and parts (c), (d), and (g) of request G.
13. I also note that in his submissions to this Office dated 24 July 2024, among other things, the appellant disputed the manner, the amount of work and time involved in processing as indicated by Coillte, the searches carried out regarding request A, the intended creation of a list for parts of requests B to G, and that further information other than that identified for release for requests B to G should exist.
14. As noted, on 23 October 2024, Coillte informed this Office that its position regarding the information that it had intended to grant access to had changed and it was now refusing access under article 9(2)(a) of the AIE Regulations.
15. In order to progress this matter, I will focus on the 7(3)(a)(ii) and 9(2)(a) issues regarding requests B to G in this decision, along with article 7(5) for part (g) of those requests. While I note the appellant’s comments that he uses the phrase “to include” and that this indicates an expansive request, I would also note that in circumstances where specific items are listed, it may, depending on the particular circumstances of the case, be open to a public authority to seek to refuse access to information other than that listed under article 9(2)(b) of the AIE Regulations, having had appropriate regard to article 7(8) of the AIE Regulations and considered article 10.
16. Having examined the file, I am satisfied that the scope of this appeal concerns whether Coillte was justified in its decision:
• to refuse access to parts (a), (b), (e), (f), (h), (i), and (j) of Requests B to F under article 9(2)(a) of the AIE Regulations
• to refuse access to parts (a), (b), (c), (d), (e), and (g) of Request A and part (g) of Requests B to G under article 7(5) of the AIE Regulations
• to give access to part (f) of Request A and parts (c) and (d) of Requests B to G under article 7(3)(a)(ii) of the AIE Regulations.
17. Before addressing the substantive issues arising, I wish to make a number of preliminary comments. First, this case relates to my decision dated 13 December 2023. As part of my decision, I directed Coillte to undertake a fresh decision-making process. I note Coillte’s comments in its new internal review decision:
“A decision did not issue to you in respect of the remitted requests by 13 March 2024 as required under the AIE Regulations. You requested an internal review on 28 March 2024 on the basis of a deemed refusal. An internal review was not carried out within the time prescribed by the AIE Regulations. Coillte apologises that the remitted requests were not processed within the required time period. The volume of AIE Requests which Coillte was dealing with in December 2023 and throughout 2024 to date, along with the occurrence of a forest certification audit in late December, lead to this delay on our part. Once notified of our error by the OCEI we acknowledged that a Decision had not issued, and we have taken time now to give due consideration to the remitted requests.”
18. Coillte was established pursuant to the Forestry Act 1988 (as amended) to carry out the business of forestry and related activities. While I accept that Coillte receives a large number of AIE Requests and that this has presented challenges, 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, the carrying out of other operational or commercial functions, or compliance with any accreditation standards.
19. Second, it is clear from the comments of the Court of Appeal in Redmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83, at paragraph 51, that the nature of a review by this Office is inquisitorial, rather than adversarial in nature. The extent of the inquiry is determined by this Office and not by the parties to the appeal.
20. Finally, while the AIE Regulations do not explicitly provide that the burden of proof rests with the public authority in relation to justifying a refusal to make information available, the Commissioner considers that the scheme of the Regulations, and of Directive 2003/4/EC upon which the Regulations are based, makes it clear that there is a presumption in favour of release of environmental information.
Article 9(2)(a) of the AIE Regulations
21. I turn to consider the matter of whether Coillte was justified in its decision to refuse access to parts (a), (b), (e), (f), (h), (i), and (j) of Requests B to F under article 9(2)(a) of the AIE Regulations.
22. 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.
23. Article 9(2)(a) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. 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. 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.
24. The Minister’s Guidance, at paragraph 12.8, states that article 9(2) of the AIE Regulations “clarifies that a public authority may refuse to make information available if the request is considered unreasonable due to the range of material sought, if the request is too general or if the material requested is not yet completed. Public authorities are requested to invoke these grounds for refusal sparingly, and to assist the applicant (to reformulate a request, for example) as appropriate” (my emphasis). In light of this, I am of the view that where a public authority intends to refuse a request under article 9(2)(a) of the AIE Regulations, it should first assist the appellant to reformulate the request as appropriate. Both public authorities and appellants should seek to liaise constructively with a view to processing the request as efficiently as possible.
25. In the decision dated 13 December 2023, I discussed the reformulation / refinement of the original requests made (see paragraphs 17 to 22). Accordingly, I will not repeat that detail in full here, however I will draw attention to the following comments made:
“I also accept that the requester in this case made it clear that he did not wish to refine his request. However, I note that Coillte merely invited the appellant to refine his request and made no suggestions as to how he could do so. I also note that the suggestions made by Coillte with regard to the ability to use its Public Viewer to narrow the request were made to this Office and not to the appellant. I would encourage Coillte to engage, insofar as possible, with requesters in circumstances where it considers a request to be manifestly unreasonable, to provide reasonable assistance with regard to suggested reformulations of the request. In my view, Coillte, could have provided greater assistance, for example, by including some of the information set out in its submissions to this Office, or perhaps even using some of the publicly available information referred to, to inform its engagement with the requester. While I accept that it may not have done so in this case, such an approach may reduce the need for appeals to this Office in future cases.
In addition, with regard to Coillte’s statement that the appellant’s refusal “to engage with Coillte as the responsible public authority is manifestly unreasonable”, I consider that the request itself is the relevant consideration when seeking to apply article 9(2)(a) of the AIE Regulations. Accordingly, while a requester’s refusal to refine a request and reduce the volume or range of information sought may impact whether a request is manifestly unreasonable, and this Office would encourage both parties to liaise constructively, a requester’s unwillingness to engage with a public authority is not, in and of itself, a basis for refusal under article 9(2)(a) of the AIE Regulations.”
26. There is no evidence to suggest that any further engagement between the parties regarding the reformulation / refinement of the requests took place following the decision dated 13 December 2023. While the lack of constructive engagement between the parties is disappointing, this is not, in and of itself, a requirement for a public body’s reliance on or an immediate basis for refusal under article 9(2)(a) of the AIE Regulations.
27. The AIE Regulations indicate that a “request” is one made in accordance with requirements set out in article 6 of the Regulations. The Directive does not provide a definition of “request”. Having regard to the provisions of the Directive and the Aarhus Convention, this Office considers that a request for environmental information can be understood as the occurrence of a member of the public seeking information from a public authority. In cases where an appellant sends multiple communications to a public authority over a short period of time, the practical implication is that there are certain circumstances where some of these separate communications may reasonably be considered to constitute a single request, or a smaller number of requests. This will be fact specific and could be done by combining communications on thematic or temporal lines. Although not always possible, 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. In cases where an appellant sends a multi-part request, it may also be the case that certain parts of the request are intrinsically linked and should be considered together, while other parts should be considered separately. Regardless of whether requests (or parts of requests) are considered together or separately, it is incumbent upon a public authority to ensure that it complies with each of the requirements of the AIE Regulations, including, the applicable timeframes and, where relevant, article 10(5) of the AIE Regulations.
28. In its new internal review decision, Coillte stated that it had “now determined that the seven separate remitted requests effectively constitute a single AIE Request…for the following reasons: (1) They are all from the same person (2) They were all received in a short period of time (3) They are similarly worded and refer to the same subject matter – Road Upgrade Works.”
29. In the decision dated 13 December 2023, I specifically set out and gave reasons as to why I considered it reasonable for Coillte to have considered requests B to E together, however I considered it unreasonable for Coillte to have considered requests A, F, G (along with H and another request not at issue in that case dated 20 January 2022) within that approach (see paragraphs 26 to 32 of the decision dated 13 December 2023).
30. Coillte, while not relying on article 9(2)(a) of the AIE Regulations at the time of the internal review decision, in determining the seven separate remitted requests (i.e. A to G) to constitute a single AIE Request clearly had no regard to my finding in the decision dated 13 December 2023 that it was only reasonable to take requests B to E together.
31. The European Commission’s First Proposal for the AIE Directive envisaged that the exception in Article 4(1)(b) would cover requests “variously described in national legal systems as vexatious or amounting to an abus de droit.” It noted that “compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. Public authorities should be able to refuse access in such cases in order to ensure their proper functioning.” The Aarhus Convention Compliance Committee (ACCC) has emphasised that “whether or not a request is manifestly unreasonable relates to the nature of the request itself, for example, its volume, vagueness, complexity or repetitive nature, rather than the reason for the request, which is not required to be stated.” (Report adopted on request for advice by Belarus, ACCC/A/2014/1, paragraph 28).
32. In respect of a request which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, it is clear that a request is not necessarily covered by the “manifestly unreasonable” exception just because it is voluminous or complex. 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. I further note the parallel duty in Article 7(1) of the AIE Directive to ensure that public authorities organise environmental information with a view to its active and systematic dissemination to the public, and article 5 of the AIE Regulations which seeks to implement that provision. In his Opinion in C-217/97 Commission v Germany at paragraph 30, Advocate General Fennelly stated that the duty in Article 7 of the AIE Directive indicates that individual requests should, in principle, be on matters of detail. Accordingly, the fact that a request is detailed does not mean that it is necessarily unreasonable.
33. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, I must examine whether responding to the request would involve the public authority in disproportionate cost or effort, or would obstruct or significantly interfere with the normal course of its activities. In light of the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission, at paragraphs 101-115, I consider that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request. I expect that if a public authority wishes to rely on the manifestly unreasonable nature of a request, that public authority will clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.
34. It is also important to bear in mind article 5 of the AIE Regulations and Articles 7 and 3(5) of the AIE Directive, which place duties on public authorities to organise and actively disseminate environmental information, to support the public in seeking access to information and to put practical arrangements in place to ensure the effective exercise of the right to access environmental information. It is not within this Office’s powers to examine the implementation of article 5 of the AIE Regulations or article 7 of the AIE Directive by public authorities. However, I am satisfied that the exemption in article 9(2)(a) is not intended to endorse any failure by a public authority to comply with its duties to organise and disseminate environmental information under those provisions. Furthermore, in every case, regard should be had to the purpose of the AIE Regime, as reflected in Recital 1 of the Preamble 6 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.” Accordingly, in cases involving article 9(2)(a) this Office may consider whether the information requested is the kind of environmental information that one would expect to be organised by the public authority in a manner that enables its easy dissemination.
35. As indicated above, in its new internal review decision, Coillte considered the seven separate remitted requests (A to G) to constitute a single combined AIE request referred to by Coillte as the Request. I consider it relevant at this stage to set out the detail provided by Coillte in the new internal review decision, while not relying on article 9(2)(a) at that time, regarding the work involved in processing the request:
• “Before addressing each element of the Request below it is important to note that the Engineering Process Manager informed the AIE Team that individual information or data items relating to forest road upgrade 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 upgrades and may include one or more of the attributes sought by you in your Request. However, for the sake of absolute clarity, we confirm that the information you have sought, with each of the attributes noted, does not exist in any easily accessible 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 report or list to satisfy your Request.”
• “We note that Article 5(1)(b) of the AIE Regulations requires 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”. However, the information sought by you 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). This is because the information and records as held by Coillte, and which may contain elements of the information sought in the Request, are operational records created by different operational and engineering teams. It is our view that Coillte could not be expected under either the AIE Regulations or the AIE Directive to organise or collate this information in any other way, or to summarize the information as Coillte could not reasonably anticipate that all information related to this topic might be requested under the AIE regime. Lastly, there is currently no business need for Coillte to collate the information sought in this manner for operational purposes.”
• “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. “
• “An initial high-level search of the locations referenced when crossed-referenced with the forest code shows that within those forests there is c. 2500 sections of existing forest road. A further analysis of those roads shows that 250 existing roads have had some level of forest road works over the period of time requested. It should be noted that further investigation is required to generate a list that fulfils the original requests. Each of the 250 records would need to be analysed to confirm the type of work and if there is any overlap with the SPA. To do this the engineering process manager would need to engage with the local engineer/estates forester to confirm same. This process would involve:
- Categorising this work to isolate instances aligning with the requested features and manually validating this data.
- Conducting individual consultations with relevant operation areas, led by the Engineering Process Manager, to systematically categorize the identified works. Given potential staff turnover across the areas covered in this Request and associated engineering staff for the relevant time period, additional clarification may be necessary in certain areas.”
• “The outcome of this process would yield a list of road numbers along with corresponding work completed on the existing roads. Additionally, incorporating supplementary information would require further postprocessing by the Engineering Process Manager.”
• “It is estimated that the aforementioned tasks would consume approximately 62 hours of the Engineering Process Manager's time, in addition to the work already undertaken for this request.”
36. Coillte then went on to provide more specific detail regarding Request A and Requests B to G.
37. Regarding Request A, Coillte stated:
• “In relation to points a, b, c, d, e and g, I am satisfied that having taken all reasonable steps to locate the information requested, no material records exist with this information. This element of the Request is refused under Article 7(5) of the AIE Regulations. Article 7(5) sets out that “where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it”.
• “The records typically created in relation to the topic may involve maps, activity packs, internal and external correspondence. This type of information would be searched for on; cloud-based storage, and LRM and / or BRM all of which are systems routinely used by Coillte to generate and store information.”
• “Following these detailed enquiries and discussions with the relevant subject matter expert, I am satisfied to confirm that information in relation to points a, b, c, d, e and g of this element of the Request does not exist in Coillte.”
• “In relation to point h [f] of this element of the Request, I am granting access to the requested information in an alternative manner. Article 7(3)(a)(ii) stipulates that “where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless – access in another form or manner would be reasonable”, as is the case in this instance. Information relating to Rights of Way are publicly available on the Tailte Eireann website via the link below – https://landdirect.ie/ A search function is available using the townland as the key word, information on the ROW in question is then available on the land direct viewer.”
38. Regarding Requests B to G (inclusive), Coillte stated:
• “In relation to points a (Forest Area reference), b (CN reference number (where applicable)), e (Length of upgrade), h (AA Reports), i (NIS (if applicable) and j (Records of any consultations including public consultation for each of the Requests listed above, I am granting access to this information where it exists, subject to payment of applicable charges as set out below (noting that only parts c, d and g of Request 20240094 are relevant to this OCE-127475-L1H4H2 decision). The information will be provided to you in a list of areas and time periods set out in each Request following completion of the required work as set out above.”
• “The exact location of the works carried out (and subsequent length of the works) does not exist. The length of the forest road segment where works took place will be provided.”
• “In relation to points c (Felling licence number of area served by the road (where applicable)) and d (Location of upgrade (map)), I am granting access to the requested information in an alternative manner. Article 7(3)(a)(ii) stipulates that “where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless – access in another form or manner would be reasonable”, as is the case in this instance. Both the felling licence number of area served by each road (where applicable, when a list is created) and the location of the road where the works took place (map) is publicly available on Coillte’s Web Viewer via the link below [link provided]”
• “In relation to point f (Date/s of upgrade works), please note that we are unable to confirm the actual dates of works. Information relating to this element of the Request is generated in the first instance by external third parties, being the relevant contract staff who completed the works. A summary of all works carried out each month is submitted to Coillte by contract staff for payment purposes. On that basis, the most accurate information we have relating to dates of works is confirmation of the month works were paid for, in most cases this will align to when the works took place. Details in relation to the relevant month and year will be provided in the list to be created.”
39. Coillte then went on to explain the charges it intended to apply for the supply of the information requiring the estimated 62 hours work.
40. The appellant submitted an appeal to this Office on 2 July 2024 and his submissions of that date were provided to Coillte on 24 July 2024. Coillte was also invited to make detailed submissions to this Office, including with regard to any exemption provision in articles 8/9 of the AIE Regulations it was relying upon and its consideration of article 10.
41. On 26 July 2024, Coillte wrote to this Office stating: “…This appeal relates to a decision where Coillte agreed to provide information to the Appellant subject to an advance charge in circumstances where we have estimated that the work required to deal with the request will take 62 hours. This is work which must be carried out by Coillte’s Engineering Process Manager. It is not work that can be divided out between the 6 BAUs. Given the existing workload and obligations of the Engineering Process Manager, we have confirmed that the information will be provided by 04 September 2024. We appreciate that there was a need for the Appellant to submit his appeal within the statutory timeframe provided by the AIE Regulations however we respectfully ask that the Appellant consider the information which he shall receive by 04 September 2024. At that point we suggest the Appellant make a further submission if he maintains his position that the information we intend providing is not adequate. We further appreciate that the Appellant is not satisfied with our application of an advance charge. Coillte submit that such a charge is justified in the present circumstances and we make submissions in this regard.”
42. On 19 September 2024, Coillte wrote to this Office, stating: “I refer to previous correspondence in relation to this appeal and note that I had proposed that the Appellant would examine the record which Coillte stated would be produced, to contain the attribute data requested by him, on payment of an advance charge. That charge was paid by the Appellant, and we estimated the record would be ready by 04 September 2024. On review of the appeal this week, I note however that the record has not been passed by the Engineering Process Manager (the subject matter expert) to the AIE Team and consequently it has not issued to the Appellant. I am informed now that the Engineering Process Manager is on unexpected extended leave and therefore it will not be possible to issue the record at this time. I do not think it would be beneficial for Coillte to make a submission on the appeal generally without the benefit of the record and without the Appellant receiving same. I suggest I update you by 23 October, when I expect the SME to have returned from leave and to be in a position to progress with releasing the record. It is worth noting that on another request from this Appellant, for similar information, a record was created containing the requested attributes and this Appellant has accepted that record without requesting an internal review. That record was for one forest, therefore the amount of time required to create same was significantly less than for the record the subject of this appeal.”
43. On 9 October 2024, the appellant informed this Office that Coillte had acknowledged his payment of €186 and had indicated that it would revert with the records by 4 September 2024, however he had not received any information.
44. As referred to above, on 23 October 2024, Coillte informed this Office that it’s position regarding the information that it had intended to grant access to had changed and it was now refusing access under article 9(2)(a) of the AIE Regulations.
45. Coillte provided details in support of its updated position, of which this Office notified the appellant. I have outlined below Coillte’s comments and the appellant’s response:
•Coillte: “Coillte’s position now is that the record/list which was to be generated by 04 September by the SME, Coillte’s Engineering Process Manager, has not been created. It has now been determined that the task of creating such a list would be manifestly unreasonable.” Appellant’s Response: “Coillte has already calculated the time it would take which is 10 hours per BAU (of which there are 6). I do not consider this to be manifestly unreasonable. Each BAU operates independently. Ten hours split between a number of staff members over a month (two if necessary) is not manifestly unreasonable. Or are Coillte now maintaining that their original calculations were wrong - have they provided any alternative calculations?
• Coillte: “Also, the Appellant does not want a list which is clear from his submissions.” Appellant’s Response: “I did not specifically request a list but I paid the fee which was for Coillte to provide a list. Excessive in my view, but this clearly demonstrates my desire to receive the information.”
• Coillte: “We accept that we agreed to provide a list and we applied an advance charge for same. The Appellant paid the advance charge of €186 and we told him that we would furnish the list by 04 September 2024. We accept that we did not fulfil this commitment. We are in the process of arranging a refund of the advance charge paid.” Appellant’s Response: “The refund has been made but this does not detract from my desire to receive the information. I considered it grossly unfair for Coillte to be sitting on my money without providing the information and I requested that they either release the information or refund the fee.”
• Coillte: “Following discussions with the SME on the extent of the work required to create the list and considering this appellant is submitting additional requests for similar information each month, and considering that the appellant has stated he does not want a list (see appeal letter), the SME has concluded, and the AIE team are in agreement, that to create a list would be a manifestly unreasonable task due to volume or range pursuant to Article 9(2)(a).” Appellant’s Response: “The monthly requests are for additional, up-to-date information - which is refused under Article 7(5) - and this has no relevance to the request under consideration. Coillte's response is backtracking. They calculated what work it would take and indicated that information would be released for a fee. They have already indicated that there are 250 cases. Are they now saying that they did not assess the request adequately in the first place?”
• Coillte: “The list is very unlikely to satisfy the appellant, and this is evident from the submissions he has already made.” Appellant’s Response: “I paid the fee; I expected to receive the information.”
• Coillte: “Looking then at the scope of the relevant amalgamated request, there are certain attributes sought where records do not exist and are not held by or on behalf of Coillte. Further, the collation of records to satisfy other elements of the request is a task which Coillte deems to be manifestly unreasonable.” Appellant’s Response: “The information exists, or at least much of the information exists. Coillte does not have to create any new environmental information. They merely have to extract it from the data source point or points. The workload has been calculated. A fee was paid. The only problem here is the conduct of the public authority. They were happy to take my money. they were in no hurry to refund it when they failed to provide the information by the timeline stated.”
• Coillte: “Given the change in our position, Coillte asks that you remit the amalgamated request to us to carry out a fresh internal review.” This Office indicated to the appellant that remittal might be an appropriate way of dealing with the appeal.
• Appellant’s Response: “The original requests go back a lot longer that July of this year. They have already been remitted once. The first of the individual requests was first appealled [sic] in April 2022; the request having been made on 21-1-22, not far off three years ago. I do not consider that Coillte have acted in good faith over these requests and allowing them to issue a new decision will just mean another appeal because they have effectively stated that they will apply Article 9(2)(a) to a series of requests that they chose to amalganate [sic] despite the original requests being submitted over a period of months (January 2022 to late July 2022).”
46. At this stage, I consider it relevant to note that in the decision dated 13 December 2023, I found that Coillte had not justified its decision to refuse access to all of the information sought relating to requests A to F and parts (c), (d), and (g) of request G cumulatively under article 9(2)(a) of the AIE Regulations. I also found that Coillte had not justified its decision to refuse access to all of the information sought relating to requests B to F and parts (c), (d), and (g) of request G individually. The general thrust of the basis for my decision dated 13 December 2023 was while Coillte had given some detail regarding its application of article 9(2)(a) of the AIE Regulations and article 10, there were certain aspects which had not been sufficiently explained. I will not repeat the detail of that decision here. However, I do wish to note that in directing Coillte to carry out a fresh decision-making process in the decision dated 13 December 2023, I included the following comments at paragraphs 68 to 71:
“68. First, it is important to note that this decision should not be taken as meaning that Coillte cannot consider requests B to E together.
69. Second, this decision should also not be taken meaning that Coillte cannot rely on article 9(2)(a) of the AIE Regulations, subject to article 10, as a ground for refusal when reconsidering requests B to E cumulatively and/or requests B to F and parts (c), (d), and (g) of request G individually. However, in doing so, Coillte should have full regard to the provisions of the AIE Regulations.
70. Third, while it is unfortunate that the appellant declined to engage with Coillte to refine his request(s), I would remind Coillte that it alone is required to implement article 10(5) of the AIE Regulations. However, I would also remind both parties that they should seek to engage constructively in the spirit of the AIE Regime. I believe that prior to the processing of the requests afresh, there may be merit in the appellant and Coillte working together to determine the extent of the information sought.
71. Finally, I note that in the event of information being refused on foot of a fresh decision-making process, such decision should clarify the basis on which information is being refused and, if it is the case that any or all of parts (e), (f) and (g) of requests B to F and part (g) of request G are refused on the basis that no such information is held by or for Coillte, sufficient reasoning should be provided to the appellant in accordance with Coillte’s obligations under articles 7(4) and 11(4) of the AIE Regulations.”
47. As noted, in its new internal review decision Coillte stated that it was giving access to certain information, subject to the payment of a fee. While not relying on article 9(2)(a) of the AIE Regulations at that time, Coillte indicated the type of work involved and that the work needed to be carried out by the Engineering Process Manager, however it gave no breakdown of the 62 hours now estimated across the requests/parts of the requests or across the tasks involved. In calculating the fee, Coillte merely noted that search and retrieval would take 52 hours and compilation would take 10 hours.
48. The appellant paid the fee and also submitted an appeal to this Office on 2 July 2024 and his submissions of that date were provided to Coillte on 24 July 2024. Coillte was invited to make detailed submissions to this Office, including with regard to any exemption provision in articles 8/9 of the AIE Regulations it was relying upon and its consideration of article 10.
49. Coillte continued to indicate to both the appellant and this Office that it would give access to certain information. It was not until 23 October 2024 that Coillte informed this Office that it’s position regarding the information that it had intended to grant access to had changed and it was now refusing access under article 9(2)(a) of the AIE Regulations.
50. Notwithstanding the comments in the decision dated 13 December 2023, including those set out at paragraphs 68 to 71 of that decision detailed above, and that Coillte had been invited to make detailed submissions to this Office in this appeal, including with regard to any exemption provision in articles 8/9 of the AIE Regulations it was relying upon and its consideration of article 10, it made no attempt to do so regarding its view that article 9(2)(a) of the AIE Regulations now applied. Instead, Coillte asked that the matter be remitted for a second time.
51. As Coillte ought to be aware (and as highlighted in my decision dated 13 December 2023) articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stage, consistent with Article 4(5) of the AIE Directive. In this regard, the High Court in Right to Know v An Taoiseach [2018] IEHC 372 noted, in particular, that “in light of the adjudicatory processes in which a decision-maker is required to engage pursuant to [a]rticles 10(3), (4) and (5) and 11(4) of the AIE Regulations, the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal” (paragraph 106). The Court held that in an absence of any indicator in the review decision that the balancing exercise mandated by articles 10(3) and (4) had been carried out, suggested that no balancing exercise had, in fact, been undertaken and that the same was true in respect of the mandatory obligation set out in article 10(5) of the AIE Regulations (paragraph 87).
52. In light of all of the above, it is clear that Coillte did not provide adequate reasons for refusal of the information at issue under article 9(2)(a) of the AIE Regulations. It is also clear that Coillte failed to have proper regard to its obligations under the AIE Regulations. In the circumstances, I cannot find that Coillte’s decision to refuse access to parts (a), (b), (e), (f), (h), (i), and (j) of Requests B to F under article 9(2)(a) of the AIE Regulations is justified. Where 9(2)(a) has not been engaged, I am not required to go on and consider article 10 of the AIE Regulations.
53. As outlined, this case relates to a previous decision of this Office wherein I annulled Coillte’s decision under article 9(2)(a) of the AIE Regulations and directed it to undertake a fresh decision-making process. In such circumstances, I do not consider it appropriate to remit the matter a second time. Accordingly, I direct release of the information being refused under 9(2)(a) relating to parts (a), (b), (e), (f), (h), (i), and (j) of Requests B to F. As this is my direction no fee can be charged by Coillte.
Article 7(5) of the AIE Regulations
54. I turn now to consider the matter of whether Coillte was justified in its decision to refuse access to parts (a), (b), (c), (d), (e), and (g) of Request A and part (g) of Requests B to G under article 7(5) of the AIE Regulations.
55. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request.
56. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned. It provides as follows:
“Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it”.
57. This Office’s approach to dealing with this type of case is to assess whether 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 is applied.
58. What will be considered reasonable will vary from case to case, but as a general guide, I set out below the type of information that my Office would generally expect to be set out in a decision where a public authority is relying on article 7(5) of the Regulations;
(i) an outline of exactly which areas/units etc. of the organisation were searched for the information.
(ii) an explanation of how searches were carried out (i.e. manually, by computer, by name, by key words). Keywords should be recorded and provided in the decision as appropriate.
(iii) details of the individuals consulted in connection with the search.
(iv) a description of the searches carried out to cover the possibility of misfiled/misplaced records.
(v) details of guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of information requested in this case.
(vi) the basis on which the public authority has concluded that it does not hold any information within the scope of the appellant’s request and that no such information is held by any other person or body on its behalf.
59. It is widely accepted that the duty to give reasons arises not only by virtue of the AIE Regulations and Directive but that it is recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed.
60. Coillte, in its new internal review decision, stated that it was refusing access to certain information under article 7(5) of the AIE Regulations, as follows; parts (a), (b), (c), (d), (e), and (g) of request A. It also can be inferred that Coillte refused access to part (g) of requests of Requests B to G under article 7(5) of the AIE Regulations, on the basis that it made no detailed reference to that part in its decision.
61. Regarding Request A, Coillte stated:
“The records typically created in relation to the topic may involve maps, activity packs, internal and external correspondence. This type of information would be searched for on; cloud-based storage, and LRM and / or BRM all of which are systems routinely used by Coillte to generate and store information.
In order to determine if records relevant to the Request exist, detailed discussions were held with the Engineering Team lead, being the relevant subject matter expert who deals with this type of information in Coillte to ascertain (a) if this information typically exists and/or is held by Coillte and (b) to request they carry out appropriate keyword and file searches if such information is held by Coillte. Following discussions between the AIE Team and the Engineering Team Lead on 28.05.2024, searches of the systems referred to above were conducted and it was confirmed on 11.06.2024 that no information relating to these points exist.
Following these detailed enquiries and discussions with the relevant subject matter expert, I am satisfied to confirm that information in relation to points a, b, c, d, e and g of this element of the Request does not exist in Coillte.”
62. As noted the appellant’s submissions were provided to Coillte on 24 July 2024. In those submissions, regarding Request A, the appellant stated:
“Coillte have failed to indicate precisely what key search words were used in trying to locate this information. Therefore they have failed to demonstrate that all reasonable steps have been taken to identify the requested information.
It is for Coillte to demonstrate that they have applied appropriate search terms and methods. This is not demonstrated in the decision letter.”
63. Regarding part (g) of requests of Requests B to G, the appellant stated “It would appear to me that the ‘Source of road materials’ is information that is held for Coillte by the contractors who carried out the works. Coillte have not explained the basis for refusing to include this information on the indicated list.”
64. On 24 July 2024, Coillte was invited to respond to the appellant’s submissions and to provide full and complete details of the steps and searches undertaken, along with its records management, retention and disposal policies in respect of the specific information/records sought in this case.
65. In its subsequent correspondence with this Office, Coillte made no specific reference to its reliance on article 7(5) of the AIE Regulations nor did it provide any further detail regarding the searches carried out or identify the keywords used. While Coillte indicated in its decision that it had carried out searches and engaged in detailed discussions with the Subject Matter Expert in respect of Request A, it did not provide details of those discussions, specify exactly what files/systems were searched or specify the search terms used. Coillte also provided no explanation as to why the records identified as typically relevant to a case such as this did not exist. In the circumstances, I cannot be satisfied that Coillte has taken adequate steps to identify and locate the requested information relevant to parts (a), (b), (c), (d), (e), and (g) of Request A.
66. Regarding part (g) of requests of Requests B to G, Coillte made no detailed reference to this aspect in either its new internal review decision or its submissions to this Office. Again, in the circumstances, I cannot be satisfied that Coillte has taken adequate steps to identify and locate the requested information relevant to part (g) of Requests B to G.
67. Accordingly, it is my view that the most appropriate course of action to take is to annul Coillte’s decision under article 7(5) of the AIE Regulations in respect of and remit parts (a), (b), (c), (d), (e), and (g) of request A and part (g) of Requests B to G to Coillte and direct it to undertake a fresh internal review decision on those aspects. I appreciate that this causes further delay for the appellant in what has already been a lengthy process, however, where adequate search details have not been provided I consider it to be the proper approach.
Article 7(3)
68. Finally, I turn to consider whether Coillte was justified in its decision to give access to part (f)* (incorrectly referred to as (h)) of Request A and parts (c) and (d) of Requests B to G under article 7(3)(a)(ii) of the AIE Regulations.
69. Article 7(1) of the AIE Regulations provides a public authority shall, notwithstanding any other statutory provision and subject only to the AIE Regulations, make available environmental information that is held by or for them on request.
70. Article 7(3)(a) of the AIE Regulations provides that where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless (i) the information is already available to the public in another form or manner that is easily accessible or (ii) access in another form or manner would be reasonable. Article 7(3)(b) provides that where a public authority decides to make available environmental information other than in the form or manner specified in the request, the reason therefore shall be given by the public authority in writing.
71. I wish to highlight that article 7(3) of the AIE Regulations can only be considered where a public authority has identified relevant information held by or for it, determined that information should properly be released (i.e. that no exemption provision in article 8 or 9 of the AIE Regulations (subject to article 10) applies), and has then decided to give access to that information other than in the form or manner requested.
72. Article 7(3)(a) of the AIE Regulations transposes part of Article 3(4) of the AIE Directive, which provides that where an applicant requests a public authority to make environmental information available in a specific form or format (including in the form of copies), the public authority shall make it so available unless (a) it is already publicly available in another form or format which is easily accessible by applicants or (b) it is reasonable for the public authority to make it available in another form or format, in which case reasons shall be given for making it available in that form or format.
73. Article 3(4) of the AIE Directive goes on to state “[f]or the purposes of this paragraph, public authorities shall make all reasonable efforts to maintain environmental information held by or for them in forms or formats that are readily reproducible and accessible by computer telecommunications or by other electronic means”. This wording, which is reflective of Article 5(3) of the Aarhus Convention, was not transposed by article 7(3) of the AIE Regulations. However, I do note that article 5(1)(b) of the AIE Regulations states that a public authority shall “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”.
74. As indicated, it is not within my powers to examine the implementation of article 5(1)(b) of the AIE Regulations by public authorities generally. However, a public authority’s implementation of article 5(1)(b) of the AIE Regulations may impact its ability to rely on article 7(3) of the AIE Regulations. In cases involving article 7(3) of the AIE Regulations this Office may consider whether the particular information requested is the kind of environmental information that one would expect to be maintained in a manner that is readily reproducible and accessible electronically. Greater implementation of article 5(1)(b) of the AIE Regulations by a public authority, may increase the likelihood that article 7(3) of the AIE Regulations can be relied upon or that information can be obtained by members of the public without the need to submit an AIE Request. It is also of note that, while a public authority can only engage article 7(3) of the AIE Regulations where it has been determined that the information should properly be released under the AIE Regulations, the AIE Regulations are just one access regime and there is nothing in the AIE Regulations which precludes a public authority from providing access to information outside the regime, even if access would be denied as a result of one of the exemptions in the AIE Regulations.
75. Coillte in its new internal review decision outlined that it was giving access to certain information under article 7(3)(a)(ii) of the AIE Regulations, as follows: part (f) of Request A and parts (c) and (d) of Requests B to G.
76. Regarding part (f) of Request A, in its new internal review decision Coillte stated “I am granting access to the requested information in an alternative manner. Article 7(3)(a)(ii) stipulates that ‘where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless – access in another form or manner would be reasonable’, as is the case in this instance. Information relating to Rights of Way are publicly available on the Tailte Eireann website via the link below – https://landdirect.ie/ A search function is available using the townland as the key word, information on the ROW in question is then available on the land direct viewer.”
77. Regarding parts (c) and (d) of Requests B to G, in its new internal review decision Coillte stated “In relation to points c (Felling licence number of area served by the road (where applicable)) and d (Location of upgrade (map)), I am granting access to the requested information in an alternative manner. Article 7(3)(a)(ii) stipulates that “where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless – access in another form or manner would be reasonable”, as is the case in this instance. Both the felling licence number of area served by each road (where applicable, when a list is created) and the location of the road where the works took place (map) is publicly available on Coillte’s Web Viewer via the link below Coillte Web Viewer
78. As noted the appellant’s submissions were provided to Coillte on 24 July 2024. In those submissions, regarding part (f) of Request A, the appellant stated:
“My request sought ‘Details of Rights of Way’. The Tailte Eireann website identifies the location of Rights of Way but does not give the details of the burden. My request is specifically seeking details of what the Right of Way entails. Therefore Coillte has failed to correctly address this element of my request.”
79. Parts (c) and (d) of Requests B to G both fall within the scope of this appeal. Regarding part (d) of Requests B to G, the appellant stated: “I suspect that Item d) in particular will involve a map of the works which would have been provided to the contractor responsible for the implementation. Such mapping may contain additional information to that on Coillte’s Webviewer and I am therefore not satisfied that this is a reasonable alternative. It is only a reasonable alternative if all of the information contained in the requested information is available through the Webviewer.”
80. In essence, the appellant’s submissions are that not all information relevant to his requests is available on the Coillte Web Viewer or the Taillte Eireann website.
81. Adequate reasons must also be given in respect of any reliance on article 7(3)(a)(ii) of the AIE regulations in accordance with article 7(3)(b) of the AIE Regulations. I have already set out that the duty to give reasons, which arises not only by virtue of the AIE Regulations and AIE Directive, is recognised generally as a core principle of administrative law and a fundamental element of constitutional justice.
82. I find that Coillte did not provide adequate reasons in its decision or submissions to this Office for its reliance on article 7(3)(a)(ii) in respect of part (f) of Request A or parts (c) and (d) of Requests B to G. Coillte was invited to respond to the appellant’s submissions and to provide reasons to support its decision. In its submissions to this Office, Coillte made no reference to article 7(3) of the AIE Regulations. It also provided no comments on the appellant’s view or comments regarding the scope of the relevant parts and whether all information sought by the appellant is available on the relevant websites. Coillte did not provide any submissions on the information actually held by it that is relevant to those parts of the appellant’s request. While in its internal review decision Coillte referred the appellant to the relevant websites and outlined generally what and how information could be accessed from those websites, it did not provide any particular detail or examples of any of the specific information sought by the appellant in his requests, which it indicated could be extrapolated. Furthermore, Coillte gave no assessment of the “reasonableness” of the form/manner in accordance with 7(3)(a)(ii). As indicated above, in the circumstances, I am not satisfied that Coillte gave adequate reasons for its reliance on article 7(3) of the AIE Regulations.
83. Accordingly, it is my view that the most appropriate course of action to take is to annul Coillte’s decision under article 7(3) of the AIE Regulations in respect of part (f) of Request A and parts (c) and (d) of Requests B to G to Coillte and direct it to undertake a fresh internal review decision on those aspects. Again, I appreciate that this causes further delay for the appellant in what has already been a lengthy process, however, where adequate reasons for relying on article 7(3) of the AIE Regulations have not been provided I consider it to be the proper approach.
84. While I must emphasise that I encourage public authorities to actively disseminate information on their websites, adequate reasons must be provided when a public authority wishes to rely on articles 7(3) to grant an AIE request by directing the requestor to that website. It may indeed be the case that the relevant parts of the appellant’s request in this appeal can be satisfied, in part or in full, by the information that is available online and therefore, if Coillte address the matters I have set out above in its new internal review decision, reliance on article 7(3) may be justified.
85. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul Coillte’s decision. I direct Coillte to release the information being refused under article 9(2)(a) of the AIE Regulations relating to parts (a), (b), (e), (f), (h), (i), and (j) of Requests B to F. I direct Coillte to carry out a new internal review decision making process in respect of parts (a), (b), (c), (d), (e), (f), and (g) of Request A and parts (c), (d), and (g) of Requests B to G.
86. 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.
______________________
Ger Deering
Commissioner for Environmental Information
12 June 2025
Request A: 21 January 2022
• OCEI Reference: OCE-121815-Y1T4M6; Coillte Reference: 20220011; Appellant Reference: Kiltyfeenaghty Road Upgrade – “All information relating to the upgrade of a Private Road at Kiltyfeenaghty Glebe, Co. Leitrim c. 2015. The road services forest property LM08 – Kiltyfeenaghty and was upgraded to service the extraction of timber from Compartment 67730G. Records to include inter alia
Works specification
Environmental Assessments including AA Screening
Date of works
All consultations with local land owners
Permissions sought and received
Details of Rights of Way
Correspondence
To clarify, this is not Forest Road CN79420; the information sought relates to the private road leading in to the site from the R200 over which Coillte presumably has a Right of Way. I can provide a map if required.”
Request B: 24 January 2022
• OCEI Reference: OCE-122151-X4W3C6; Coillte Reference: 20220012; Appellant Reference: Coillte Road Upgrades Staks 21 – “Records of all Forest Road Upgrades carried out by or on behalf of Coillte within the Stack's to Mullaghareirk Mountains, West Limerick Hills and Mount Eagle SPA during 2021. Records to include
a. Forest Area reference (KY01, KY06, etc)
b. CN reference number (where applicable)
c. Felling licence number of area served by the road (where applicable)
d. Location of upgrade (map)*
e. Length of upgrade
f. Date/s of upgrade works
g. Source of road materials
h. AA Reports
i. NIS (if applicable)
j. Records of any consultations including public consultation
Should you wish to clarify any aspect of this request please do not hesitate to contact me at the email address indicated: [appellant’s email address]
Request C: 7 February 2022
• OCEI Reference: OCE-122369-Z6M8L3; Coillte Reference: 20220019; Appellant Reference: Coillte Road Upgrades Slievefelim 20-21 – “Records of all Forest Road Upgrades carried out by or on behalf of Coillte within the Slievefelim to Silvermines Mountains SPA from 1-1-2020 to 31-12-21. Records to include
a. Forest Area reference (TN01, TN06, etc)
b. CN reference number (where applicable)
c. Felling licence number of area served by the road (where applicable)
d. Location of upgrade (map)*
e. Length of upgrade
f. Date/s of upgrade works
g. Source of road materials
h. AA Reports
i. NIS (if applicable)
j. Records of any consultations including public consultation
Should you wish to clarify any aspect of this request please do not hesitate to contact me at the email address indicated: [appellant’s email address]
Request D: 14 February 2022
• OCEI Reference: OCE-122373-C2W6G5; Coillte Reference: 20220023; Appellant Reference: Coillte Road Upgrades Mullaghanish 20-21 – “Records of all Forest Road Upgrades carried out by or on behalf of Coillte within the Mullaghanish to Musheramore Mountains SPA from 1-1-2020 to 31-12-21. Records to include
a. Forest Area reference (LK01, LK06, etc)
b. CN reference number (where applicable)
c. Felling licence number of area served by the road (where applicable)
d. Location of upgrade (map)*
e. Length of upgrade
f. Date/s of upgrade works
g. Source of road materials
h. AA Reports
i. NIS (if applicable)
j. Records of any consultations including public consultation
Should you wish to clarify any aspect of this request please do not hesitate to contact me at the email address indicated: [appellant’s email address]
Request E: 31 January 2022
• OCEI Reference: OCE-122362-R2X6T1; Coillte Reference: 20220014; Appellant Reference: Coillte Road Upgrades Slieve Aughty 20-21 – “Records of all Forest Road Upgrades carried out by or on behalf of Coillte within the Slieve Aughty Mountains SPA from 1-1-2020 to 31-12-21. Records to include
a. Forest Area reference (CE01, CE06, etc)
b. CN reference number (where applicable)
c. Felling licence number of area served by the road (where applicable)
d. Location of upgrade (map)*
e. Length of upgrade
f. Date/s of upgrade works
g. Source of road materials
h. AA Reports
i. NIS (if applicable)
j. Records of any consultations including public consultation
Should you wish to clarify any aspect of this request please do not hesitate to contact me at the email address indicated: [appellant’s email address]
Request F: 21 February 2022
• OCEI Reference: OCE-122354-F2H0W6; Coillte Reference: 20220027; Appellant Reference: Slieve Beagh Road Upgrades 20-21 – “Records of all Forest Road Upgrades carried out by or on behalf of Coillte within the Slieve Beagh SPA from 1-1-2020 to 31-12-21. Records to include
a. Forest Area reference (MN01, MN06, etc)
b. CN reference number (where applicable)
c. Felling licence number of area served by the road (where applicable)
d. Location of upgrade (map)*
e. Length of upgrade
f. Date/s of upgrade works
g. Source of road materials
h. AA Reports
i. NIS (if applicable)
j. Records of any consultations including public consultation
Should you wish to clarify any aspect of this request please do not hesitate to contact me at the email address indicated: [appellant’s email address]
Request G: 1 June 2022
• OCEI Reference: OCE-127475-L1H4H2; Coillte Reference: 20220156; Appellant Reference: Slieve Bloom Road Upgrade 21/2 – “Records of all Forest Road Upgrades carried out by or on behalf of Coillte within the Slieve Bloom Mountains SPA during 2021. Records to include
a. Forest Area reference (LS01, LS06, etc)
b. CN reference number (where applicable)
c. Felling licence number of area served by the road (where applicable)
d. Location of upgrade (map)*
e. Length of upgrade
f. Date/s of upgrade works
g. Source of road materials
h. AA Reports
i. NIS (if applicable)
j. Records of any consultations including public consultation
Should you wish to clarify any aspect of this request please do not hesitate to contact me at the email address indicated: [appellant’s email address]
Request H: 25 July 2022
• OCEI Reference: OCE-129543-Y6M3K5; Coillte Reference: 20220238; Appellant Reference: Coillte Slieve Blooms Road Upgrades (3) – Records of all Forest Road Upgrades carried out by or on behalf of Coillte within the Slieve Bloom Mountains SPA during 2022. Records to include
a. Forest Area reference (LS01, LS06, etc)
b. CN reference number (where applicable)
c. Felling licence number of area served by the road (where applicable)
d. Location of upgrade (map)*
e. Length of upgrade
f. Date/s of upgrade works
g. Source of road materials
h. AA Reports
i. NIS (if applicable)
j. Records of any consultations including public consultation
k. A copy of the tender / agreement between Coillte and the forest road contractor indicating, inter alia, what works are to be carried out, where and when
I wish to receive the information for in electronic format.