Cinneadh
Ms X and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-135566-K8T9M3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-135566-K8T9M3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Coillte was justified in refusing the appellant’s request on the basis that no such environmental information is held by it or for it
1. On 16 December 2022, the appellant made a request to Coillte under the AIE Regulations, seeking access to information with specific reference to the contents of Coillte-Strategic Vision for our Future Estate , as published in April 2022 (the Report).
The appellant requested, by email, all information relating to:
1. The definition of 'deep peat' adopted by Coillte for purposes of the Report,
2. An excel spreadsheet relating to all, “Peatlands Land < 150m above sea level, on deep peat soils and includes habitats such as lowland blanket bog, raised bog, cutover bog, and conifer plantation on deep peat”, as noted by Coillte on page 26 of the Report, and as analysed by Coillte for purposes of the Report.
The appellant requested that the excel spreadsheet include the following information:
3. A map (preferably interactive) of the peatland areas listed in the excel spreadsheet in 2) above.
2. On 13 January 2023, Coillte issued a decision on the appellant’s request.
3. In respect of part 1), Coillte referred the appellant, via a website link, to another Coillte report ‘ Forests for Climate - Report on Carbon modelling of the Coillte Estate ’, and stated that the definition of ‘deep peat’ could be found at chapter [3] 3.3.4 (page 8) of this report. It also advised the appellant that “further information on soils can be found at the following link https://data.gov.ie/dataset/irish-soil-information-system-national-soils-map ”.
4. In respect of parts 2) and 3), Coillte refused the appellant’s request under article 7(5) of the Regulations on the basis that it had been unable to locate any records relevant to the appellant’s request, “[having] examined material held by Coillte and having taken all reasonable steps to locate the requested information and establish whether the information requested exists”. The steps were detailed as “a physical search of all relevant areas of the organisation in which the records sought might be held” and “interviews with individual members of staff who may have dealt with such records.”
5. The appellant sought an internal review of the entire decision on 13 January 2023.
6. In respect of part 1), the appellant quoted the following text to which she had been directed by Coillte:
“3.3.4 Organic soils
For the purposes of this assessment forest soils have been classified as organic soils (or peats) if the peat depth is greater than 40 cm and the organic content is greater than 20 per cent. Organic soils are further sub-classified as fens or blanket peats. If the organic or peat layer is less than 30 cm the soils are classified as organo-mineral (or peaty-mineral) soils.”
The appellant requested clarification as to whether this implied that the definition of 'deep peat' as sought in part 1) of her request was, “where the peat depth is greater than 40cms and where the organic content of the soil is greater than 20%”, and if not, requesting the information sought.
7. In respect of parts 2) and 3), the appellant requested further details on the searches conducted by Coillte, including “the timeframes in relation to all steps taken by the Internal Reviewer to locate the requested information, together with any additional steps taken by the Internal Reviewer in comparison with the steps stated to be taken in the original decision”.
8. Coillte issued its internal review outcome on 10 February 2023.
9. In respect of part 1), the Internal Reviewer noted that this part of the appellant’s request was “granted at first instance, however [the appellant] sought clarification on the definition of peat”. The outcome further advised the appellant that, “There is no separate classification for ‘peat’ and ‘deep peat’. Once it is classified as peat it can vary in depth to approximately 40 cm - 4 meters.”
10. In respect of parts 2) and 3), the Internal Reviewer affirmed refusal of the information on the basis of article 7(5) of the AIE Regulations, outlining the steps taken to identify and locate information relevant to the appellant’s request, as follows:
11. The Internal Reviewer added, “without prejudice to the above”, their opinion that the basis of the appellant’s internal review request on parts 2) and 3), “is outside the scope of the original request”, as the internal review request “is not for information produced, received or physically held in material form, of the kind to which the AIE Regulations apply.” It was further stated that “Coillte is not obliged under the AIE Regulations to respond to interrogation or cross-examination, or to generate information in response to a request.” The Internal Reviewer reiterated that the information requested by the appellant “does not exist” and that it has “outlined clearly the steps taken to locate information that may be relevant to the Request.”
12. The appellant brought an appeal to this Office on 16 February 2023.
13. I am directed by the Commissioner for Environmental Information to complete a review under article 12(5) of the Regulations. In doing so, I have had regard to submissions made by the appellant and Coillte in this matter.
In addition, I have had regard to:
14. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
15. 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.
16. The appellant submitted an appeal to this Office on the basis that Coillte had refused parts 2) and 3) of her request under article 7(5) of the AIE Regulations, without adequate reasoning, and provided conflicting information with regard to part 1) of the request.
Part 1) of the request
17. The appellant notes that she was directed to refer to a specific Coillte report for the definition of ‘deep peat’. The appellant submits that the term ‘deep peat’ is not referenced in this text and notes her request for clarification, submitted at internal review stage, as to whether Coillte directing her to this source of information, could be taken to mean that the definition of 'deep peat', used for purposes of the Report, was “where the peat depth is greater than 40 cm and where the organic content of the soil is greater than 20%”.
18. The appellant notes the response to her internal review request wherein she was informed that there is no separate classification for ‘peat’ and ‘deep peat’ and that once forest soil is classified as peat it can vary in depth to approximately 40cm – 4 meters. The appellant submits that she has been provided with conflicting information and her position is that she is still awaiting confirmation of the definition of 'deep peat' used for purposes of the Report relevant to her original AIE request.
19. The appellant submits that the internal review response, wherein it states there is no separate classification for ‘deep peat’, appears contradictory to other references made by Coillte to ‘deep peat’, and the appellant provides examples as follows:
20. The Investigator requested Coillte to explain clearly as to whether a definition for 'deep peat' exists or not, and furthermore, whether the terms ‘peat’ and ‘deep peat’ are used interchangeably by Coillte.
21. Coillte submits that “these terms are not used interchangeably, [and] as a rule, ‘peat’ is used to refer to all types of organic soils irrespective of peat depths. However, within Coillte, ‘deep peats’ are generally referred to as; blanket peat, cutover peats and fen peats.”
22. In its response Coillte explains that the terms ‘deep peat’ and ‘shallow peat’ are not agreed, scientific terms that can be used to describe peat types and/or their depth but are terms that are more generally used to imply the depth of peat that occurs on a site. It submits that “in the context of the analysis of the Coillte estate, the term ‘deep peat’ has been used as a means of categorising peats that are classified as either fens, cutover peats or blanket peats and from a strategic level (national assessment), Coillte considers having a depth greater than 40 cm and the organic content is greater than 20 per cent.” It further adds that “the term ‘shallow peat’ is used to categorize organo-mineral soils, i.e. mineral soils that have a shallow layer of peat, for instance, gleysols, regosols, peaty podzols etc. and which generally have a peat depth of less than 30cm.”
23. Coillte goes on to explain that “it is important to note that there is not a commonly agreed defined or standard that is widely used between countries and communities (e.g. practitioners and scientific groups) and that in many cases there are differences in terms of the depths used to define peat types and peat classifications.”
24. I have given consideration to submissions from the appellant in relation to Coillte’s handling of part 1) of her request and I am in agreement that the responses provided by Coillte were confusing. Coillte was however in a position to provide information responding to part 1) of the request when requested to do so by this Office demonstrating that information capable of responding to that element of the request was within its possession. I am therefore satisfied that Coillte did not provide the appellant with all information held by or for it within the scope of part 1) of her request and I will therefore annul this element of Coillte’s decision on that basis. While it is not normally the function of this Office to disclose environmental information directly, I consider that the explanations furnished by Coillte in its submissions to this Office, which I have set out above, provide sufficient clarity to the appellant in response to part 1) of her request. Therefore, I do not believe it is necessary to direct Coillte to take any further action in respect of part 1) of the request as I do not consider that would be an efficient use of the resources of either Coillte or this Office. I also note that it is open to the appellant to make a further request if she is not satisfied with the extent of the explanation provided above.
Parts 2) and 3) of the request
25. This review is concerned with whether Coillte is entitled to refuse access to information requested by the appellant in parts 2) and 3) of the AIE request on the basis that no information is held by or for it, that being a specified excel spreadsheet and corresponding mapped data relating to Coillte’s analysis of the ‘Peatlands’ theme as referenced on page 26 of the Report.
26. Before setting out the main findings of this review, I wish to address the comments made “without prejudice” by Coillte, as outlined above (in paragraph 11), as part of the internal review outcome. Coillte informed the appellant that its position was that her internal review request was “not for information produced, received or physically held in material form, of the kind to which the AIE Regulations apply”. It did not provide any further reasoning in support of its position but went on to note that “Coillte is not obliged under the AIE regulations to respond to interrogation or cross-examination, or to generate information in response to a request”.
27. I am not entirely clear as to what Coillte is seeking to argue when it notes that it is not obliged to respond to interrogation and cross-examination in response to a request. However, I would note that articles 7(4) and 11(4) of the AIE Regulations make it clear that a public authority must specify the reasons for refusal of information or for any decision made on an internal review request. In cases where refusal is based on article 7(5) of the AIE Regulations, the reasons for the conclusion that no relevant information is held by or for the public authority should be provided to the appellant. I consider that in this case the appellant was entitled to seek an internal review of Coillte’s decision on the basis of her view that adequate searches have not been conducted for the information at issue or that sufficient details of such searches have not been provided.
28. The duty to give reasons, which arises not only by virtue of the AIE Regulations and Directive, 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.
29. Coillte is also correct to note that the AIE Regulations apply to environmental information which is held by or for a public authority with “environmental information” being defined as any information in any material form which is on a number of defined categories. Coillte appears to be suggesting that some of the information requested in parts 2) and 3) of the appellant’s request does not exist in “material form” and it is therefore not required to provide it. Again, however, it is obliged to provide reasoning for this position.
Positions of the Parties
30. The appellant provided submissions to this Office on 28 February 2023 and 10 March 2023. The appellant submits that her request for an excel spreadsheet and mapped data relating to Coillte’s analysis of the ‘Peatlands’ theme referenced on page 26 of the Report has been refused on the basis that the information does not exist.
31. The appellant refers to the following text from page 26 of the Report – “We have analysed our estate under four broad themes of Forests, Uplands, Peatlands and Water …” and, “Our assessments identified areas that could be potentially managed primarily for nature.” The appellant submits that these statements are made in the past tense, indicating that related analysis work was undertaken by Coillte prior to publication of the Report in April 2022.
32. The appellant references a response issued by Coillte on 18 November 2022, to Parliamentary Question 53892/22 raised by Marion Harkin TD (a copy of which has been provided to this Office), quoting the following text:
“Peatland soils can be classified by the amount of organic matter they contain and may be broken into two broad classes, essentially deep peat and shallow peaty soils. Many of Coillte’s peatland soils remain unplanted. In relation to forestry on peatlands, we now understand that it is deep peats that have been afforested in the past that can pose a carbon emission risk. Coillte has an estimated 137,000 hectares of such deep peats that have been planted in the past and approximately 37,000 hectares of deep peats managed primarily for nature protection and biodiversity purposes.
Coillte has examined its peatland soils and forest stand characteristics (such as tree species, forest age, and productivity). As part of this analysis, Coillte has identified approximately 30,000 hectares of forests across its estate that are located on deep peats, which present a carbon emission risk, that should be redesigned by either rewetting or rewilding. This work is already underway with the Wild Western Peatland Project with a pilot site identified at Coillte’s Derryclare forest in Connemara County Galway. The Wild Western Peatlands project will see Coillte restore and rehabilitate approximately 2,100 hectares of Atlantic blanket bog and wet heath that is currently planted with spruce and pine forests. Coillte will take an ecological approach to rehabilitating these sensitive landscapes, restoring bog and wet heath where possible, and taking other options into account where this is not feasible such as establishing semi-natural woodlands. Each site will be different and will have a management plan prepared to suit its particular characteristics.”
33. The appellant submits that the further use of past tense in response to this parliamentary question indicates that Coillte has already analysed its estate and, on that basis, knows which lands fall into the category of ‘Peatlands’. The appellant argues, on the basis of the above, that Coillte can provide the requested information under items 2) and 3) of her AIE request and queries the adequacy of steps taken by Coillte to search for the information.
34. On 7 June 2023, this Office wrote to Coillte with a number of queries regarding its record management practices and the searches undertaken to identify and locate the relevant environmental information. At this stage, a summary of the appellant’s submissions was also provided to Coillte.
35. The Investigator asked Coillte to explain clearly the nature of analysis and assessment undertaken by Coillte concerning the ‘Peatlands’ theme in the Report. In response, Coillte submitted that “analysis and assessment of publicly available information was undertaken” and that “monitoring and mapping of soils was carried out using pre-existing and publicly available geo-spatial reference layers.” It further stated that “no reports are available for the detail requested by the [appellant].”
36. Coillte explained that the records typically created “for the purpose of developing and progressing this strategic vision would involve collation of data from the Coillte estate, analysis at a broad strategic/level, and presentation of [its] analysis in report/document form.”
(i). Coillte explained that the following “publicly available information sources” were accessed “to develop the vision”:
(ii). Coillte explained that the following documents are the “outputs of this analysis”:
37. In its submission to this Office dated 5 July 2023, Coillte provided some general information about the records management practices of Coillte and outlined the steps taken to search for the requested information, as follows:
(i) A physical search of all relevant areas of the organisation in which the records sought might be held.
(ii) A search of the electronic databases and records held both on mainframe computers and individual staff computers, including project team sites and the Land Resource Manager (LRM) programme.
(iii) Interviews with individual members of staff who may have dealt with such records.
(iv) Detailed discussions with the records management staff and interviews with the previous and current Inventory and Resource Information Managers, who were involved in the compilation of the documents.
38. Coillte submits that following interviews with the previous and current Inventory and Resource Information Managers, it was confirmed that the records requested by the appellant do not exist in Coillte. It argues that “this work is in the early stages and further documentation on the [project] site will become available as soon as the project plan has been developed.” Coillte submits that no further records “of the kind specified by the appellant in the Request” exist in Coillte.
39. Coillte submits that no relevant information has been misfiled, misplaced or destroyed by Coillte and the analysis referred to by the appellant (i.e. the text from page 26 of the Report referred to at paragraph 30 above) was “a high level scripted spatial interrogation of potential peatlands in the estate, summarised for the purposes of the Report”.
40. The Investigator asked Coillte whether it wished to make any further comments in response to the issues raised by the appellant in her submissions. In response, Coillte submits that “it is important to note that the strategic vision is the starting point of a process to develop a long-term strategic plan for Coillte’s mission to deliver the multiple benefits of forestry to society across climate, nature, wood and people in a sustainably balanced way.”
41. Coillte submits that both documents referred to above (at paragraph 36 (ii)), are “high level strategic visionary documents published as a first step in consultation with the relevant statutory and non-statutory bodies.” It added that “it is anticipated that the long-term plan will likely cover the period to 2050 and that it will also provide the basis for more detailed shorter-term implementation plans, which will require detailed analysis and assessment, to be developed.”
42. On the basis of the above, Coillte is of the view that the searches conducted in all of the circumstances were reasonable and that the information sought by the appellant does not exist in Coillte at all.
43. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned.
Article 7(5) of the AIE Regulations
44. This Office’s approach to dealing with cases where a public authority has refused a request under article 7(5) of the AIE Regulations 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 must necessarily apply. It is not normally this Office’s function to search for environmental information.
Findings
45. In order for article 7(5) to apply, this Office must be satisfied that Coillte has taken adequate steps to identify and locate all relevant environmental held by it. Although Coillte has now provided details of the searches conducted, I am not satisfied that those searches demonstrate that reasonable and adequate steps were taken in an effort to identify and retrieve all environmental information within the scope of the appellant’s request. In my view, it appears that Coillte has adopted a narrow interpretation of the information sought, and focused it searches on a precise records match – i.e. a report with the exact details sought by the appellant. The request does outline that it seeks “an Excel spreadsheet” containing information such as the county location of the peatland area, the forest name in which it is located and its size. However, the AIE Regulations, unlike the Freedom of Information Act, apply to requests for “environmental information” and not for records. The Regulations also allow a requester to specify the form or manner in which they wish the information requested to be provided. It appears to me that in responding to the request Coillte have focused on the form or manner in which the information was sought (i.e. in an Excel spreadsheet) and has not sufficiently examined whether it holds any of the information requested (i.e. the location of the peatlands referred to in the relevant sections of the Report, its size etc.). It is of course open to Coillte to provide information in an alternative form or manner to that requested in accordance with the requirements of article 7(3) of the AIE Regulations or to refuse the request on the basis that it does not possess the information requested in Excel form and compiling it would be manifestly unreasonable such that article 9(2)(a) of the AIE Regulations applies, again subject to compliance with the requirements of the Regulations. However, in circumstances where Coillte has refused the request on the basis of article 7(5) of the Regulations, the focus of this analysis is on the reasonableness of the steps Coillte did take to identify and retrieve relevant information.
46. As outlined by the appellant, Coillte clearly states in the Report that it conducted analysis of the ‘Peatlands’ theme. That is precisely why the appellant queried the possibility of information being available. The search details provided to this Office contain details as to ‘where’ Coillte sourced the data or information analysed; however, the ‘what’ remains elusive. I am in agreement with the appellant that the statements made by Coillte in the Report suggest that it does hold information in relation to this request, for example the location of its peatlands sites. I note that Coillte has also referenced the development of future plans, “which will require detailed analysis and assessment”. This is irrelevant to the AIE request at hand, which only sought information on the analysis conducted by Coillte for the purposes of the April 2022 Report.
47. In correspondence with this Office, Coillte has stated that its analysis consisted of a “high level scripted spatial interrogation of potential peatlands in the estate”. In addition, Coillte has also confirmed that the output of the spatial interrogation is available “in a Shapefile format”. It is therefore not clear why this Shapefile information was not identified earlier in the processing of this request.
48. I have also observed the contents of a Coillte presentation to the Department of Agriculture, Food and the Marine in January 2022 headed ‘Coillte – Strategy Engagement’, (provided to this Office by the appellant and previously cited at paragraph 19 above). In particular, I note that slide 6 of this PowerPoint presentation contains a map image of Ireland seemingly illustrating the location of 122,000 hectares of Coillte’s forests across its estate which are located on ‘Deep Peats’. Slide 11 goes on to indicate that of this 122,000 hectares, ‘raised; fen; cutover’ bog account for 24,000 hectares and blanket peat accounts for 98,000 hectares. It is also stated here that Coillte has identified approximately 30,000 hectares of forests for either rewetting or rewilding for climate and ecological purposes, a figure which I note is consistent with the information provided in response to Parliamentary Question 53892/22, as detailed above.
49. In conclusion, it is my view that there is sufficient evidence to indicate that environmental information is held by Coillte, which comes within the scope of the appellant’s request. As such, I cannot find that Coillte was justified in refusing access to the requested environmental information, on the basis that no relevant environmental information was held by or for it.
50. I consider that the most appropriate course of action to take at this stage is to annul the decision of Coillte in respect of parts 2) and 3) of the appellant’s request, the effect of which is that Coillte must consider these parts of the appellant’s request afresh and make a new, first instance decision in accordance with the provisions of the AIE Regulations. I note Coillte’s suggestion in its internal review decision that the information is not held in “material form” such that it falls outside the scope of the AIE Regulations. No further detail in support of this point was provided in the internal review decision or in submissions to this Office and to the extent Coillte seeks to rely on this point as part of its fresh decision-making process, it should provide reasons in support of it.
51. I appreciate that remitting the case back to Coillte causes further delay for the appellant. However, I do not believe that there is an appropriate alternative course of action to take in this instance. I would encourage the parties to engage regarding the precise nature of the information available and also to be cognisant of the requirements under article 7(3) of the AIE Regulations in the re-processing of this request.
52. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the decision of Coillte. For the reasons outlined at paragraph 24 above, I do not consider it necessary to make any further direction in respect of part 1) of the request. I remit parts 2) and 3) of the request to Coillte who should process the appellant’s request in accordance with the AIE Regulations.
53. 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.
Emma Libreri, on behalf of the Commissioner for Environmental Information