Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-151261-P3B7F3, OCE-150695-V1N1P1, OCE-149988-H0F1M7, OCE-149610-P4T0K4 and OCE-148948-Y6K1Z7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Coillte holds information relevant to each request and whether Coillte was justified in withholding information from the appellant
28 November 2024
1. This decision concerns five appeals to this Office against Coillte’s decisions on five separate requests submitted by different appellants under the AIE Regulations.
2. Request 1 (OCEI Reference: OCE-151261-P3B7F3)
• On 28 May 2024, the appellant submitted a request to Coillte seeking access to “all current Management Plans in relation to Coillte controlled lands (held both freehold or leasehold by Coillte) located in County Leitrim with a Bio Class rating applied by Coillte”.
• On 27 June 2024, the authority issued its decision. In its decision the authority stated that it was granting access to information sought albeit in an alternative manner as provide for under article 7(3)(a)(ii) of the AIE Regulations. The authority then provided the appellant with a link to the information located on its Public Mapviewer.
• On 27 June 2024, the appellant submitted an internal review request of Coillte`s decision stating that the information provided to her on the Public Viewer was not that which was requested in the original request.
• On 23 July 2024, the authority issued its internal review decision, wherein it again relied on article 7(3)(a)(ii) of the AIE Regulations and provided a weblink to an area of its public website where the authority stated “information in relation to the requested information can be found”.
• On 14 August 2024, the appellant submitted an appeal to this Office.
3. Request 2 (OCEI Reference: OCE-150695-V1N1P1)
• On 1 March 2024, the appellant submitted a request to Coillte seeking access to “the Bio Class area of 50.91 hectares located at Glencar, Co. Leitrim, which is classified by Coillte as 'Habitat freshwater, Riparian Zone, Forest, Over Mature Stand, Oceanic site, OWS.”
• On 29 March 2024 the authority notified the appellant of its intention to apply a one-month extension to the request as provided for under Article 7(2)(b) of the AIE Regulations.
• On 1 May 2024, the authority issued its decision, wherein it refused the appellant’s request on the basis that the information sought did not exist.
• Also on 28 May 2024, the appellant sought an internal review of the authority’s decision.
• On 28 June 2024, the authority issued its internal review decision. The authority varied its decision to refuse the appellant’s request under article 7(5) of the AIE Regulations by providing some records to the appellant in an alternative format to that requested by the appellant as provided for under article 7(3)(a)(ii) of the AIE Regulations.
• On 21 July 2024, the appellant submitted an appeal to this Office.
4. Request 3 (OCEI Reference: OCE-149988-H0F1M7)
• This appeal relates to four requests submitted by the appellant to Coillte on sequential dates in March 2024 (14 & 15) wherein information was requested relating to the following subject matter:
• New Road Construction and Stone Usage
• Chain of Custody Information
• Coillte Nat Regen tending surveys
• Shapefile information submitted to FS-DAFM for forestry licence applications LM09-FL0057 & LM09-FL0058
• Coillte appears to accept that no original decision issued to the appellant within the one-month deadline from the time of the original request as required under the AIE Regulations.
• On 8 April 2024 the appellant requested an internal review based on a deemed refusal of his original request.
• On 14 June 2024, the authority issued its internal review decision. The authority varied its decision to refuse the appellant’s request under article 7(5) and 9(1)(c) of the AIE Regulations.
• On 21 June 2024, the appellant submitted an appeal to this Office.
5. Request 4 (OCEI Reference: OCE-149610-P4T0K4)
• On 5 April 2024, the appellant submitted a request to Coillte seeking access to “Information on the a) identification and b) removal of "Natural Regen" (applying Coillte's use of the term in SOP-049) which has encroached onto adjacent land to the Coillte estate for each of the following years; 2020, 2021, 2022 and 2023”.
• On 3 May 2024, the authority issued its decision, wherein it refused the appellant’s request under article 9(2)(b) of the AIE Regulations which provides that “a public authority may refuse a request where the request remains formulated in too general a manner, taking into account article 7(8)”.
• Also on 3 May 2024, the appellant sought an internal review of the authority’s decision. The appellant stated, “I wish to request an internal review of this decision which is clearly formulated. I would also point out that Coillte failed to clarify a point from my correspondence. Coillte's position lacks credibility”.
• On 31 May 2024, Coillte issued its internal review decision. The authority affirmed its decision to refuse the appellant’s request under article 9(2)(b) of the AIE Regulations.
• On 7 June 2024, the appellant submitted an appeal to this Office.
6. Request 5 (OCEI Reference: OCE-148948-Y6K1Z7)
• On 5 March 2024, the appellant submitted a request to Coillte seeking access to “All information related to access and design of a Forest Road crossing non-Coillte lands at Lissatinnig, Co. Kerry (CN93132). To include details of Rights of Way, agreements for access / construction; ecological surveys of the lands traversed”.
• On 4 April 2024, the authority issued its decision, wherein it part granted the appellant’s request to information under article 7(3)(a)(ii) of the AIE Regulations by directing the appellant to records located on the Forestry Licence Viewer (FLV) website (as maintained by the Department of Agriculture, Food & the Marine) while refusing other information under article 7(5) as it had been “unable to locate any records relevant to” the request.
• Also on 4 April 2024, the appellant sought an internal review of the Coillte`s decision. The appellant questioned the lack of relevant information located on the FLV and also queried why no information or basis for refusal was provided for the absence of information on ecological surveys which formed part of his request.
• On 3 May 2024, Coillte issued its internal review decision. The authority once again set out its reliance on article 7(3)(a)(ii) of the AIE Regulations for some of the information requested while also varying its decision to refuse the appellant’s request for certain information under article 9(2)(d) of the AIE Regulations.
• On 13 May 2024, the appellant submitted an appeal to this Office.
7. I have carried out a review of each of these appeals 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 on the matters involved in these requests. 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)
8. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. The scope of my review in these appeals is whether Coillte was justified in refusing the information requested under various articles of the AIE Regulations.
10. As a result of the continuing engagement by Coillte in the review of appeals before this office the authority has requested the opportunity to reconsider its position on the appeals detailed above (Request 1 to Request 5). Having carried out a review of these appeals, I consider that it is appropriate to provide Coillte with the opportunity to re-examine these appeals under circumstances where the authority has identified new information in relation to the subject matter of the requests which may satisfy the appellants requests or where the authority wishes to correct an error in its original decision making. In adopting this approach to the appeals under this decision it is hoped that a more-timely conclusion will be achieved, for all parties concerned, than were a full investigation to take place into each appeal by this Office at this point. It is also unlikely that a full investigation into these appeals could have commenced for a number of months, given the large number of cases this Office is dealing with. It will be open to the appellant in each case to appeal again to this Office following the issuing of a new internal review decision, should he/she wish to do so.
11. As such, what follows will not be an in-depth examination of these appeals but will rather provide a brief overview of the relevant article while highlighting what I consider to be important aspects of these appeals which may be useful for the authority to consider in this or future similar appeals.
12. I understand that the appellants in these appeals may be frustrated by this decision, and may consider that it gives Coillte yet another chance to make a decision on these requests. However, given the large significant backlog of cases that this Office is dealing with, I am satisfied that the AIE regime as a whole is best served by remittal at this point, and that this is the most efficient way of progressing these appeals.
13. Article 7(5) of the AIE Regulations is the relevant provision of the Regulations when a request is refused on the grounds that a public authority does not hold the information sought, as follows:
“7(5) 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.”
14. In cases where refusal is based on article 7(5) of the Regulations, the reasons for the conclusion that no relevant information is held by or for the public authority should be provided to the appellant. The requirement under article 7(5) of the AIE Regulations for a public authority to clearly set out the actions it has taken in response to a request is not only necessary for this Office in its considerations but also gives confidence to the appellant that suitable search procedures were conducted in response to their request.
15. Article 7(3)(a)(ii) of the AIE Regulations is the relevant provision of the Regulations where a public authority acknowledges that it holds relevant information to the appellant’s request but offers this information to the requestor in a different form or manner than that requested. The AIE Regulations state:
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—
(ii) access in another form or manner would be reasonable
16. It is important to note that article 7(3)(a)(ii) of the AIE Regulations must be read alongside article 7(3)(b) of the AIE Regulations, which 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.
17. I wish to highlight that that article 7(3)(a)(ii) of the AIE Regulations can only be considered where a public authority has carried out searches, identified relevant information held by or for it, determined that information should be released, and has then decided to give access to that information other than in the form or manner requested.
18. Article 9(1)(c) of the AIE Regulations allows a public authority to refuse a request for information “where the disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national and Community law to protect a legitimate economic interest”. A number of elements are required in order to engage the exemption provided for in this article:
a. The information must be commercial or industrial in nature.
b. The confidentiality of the information must be provided for by law.
c. The confidentiality must protecting a legitimate economic interest.
d. The confidentiality must be adversely affected by disclosure.
19. In order to show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interest that the confidentiality is designed to protect.
20. Article 9(2)(b) of the AIE Regulations and article 4(1)(c) of the AIE Directive respectively require that article 7(8) of the AIE Regulations and article 3(3) of the AIE Directive be taken into account. Article 7(8) of the AIE Regulations provides that where a request is made by the applicant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request, invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request. Article 3(3) of the AIE Directive provides that if a request is formulated in too general a manner, the public authority shall as soon as possible, and at the latest within one month, ask the applicant to specify the request and shall assist the applicant in doing so e.g. by providing information on the use of public registers.
21. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul Coillte’s decision to refuse access to information relating to each of these appeals. Coillte should now provide each appellant with a new internal review decision. In reviewing each request, Coillte should carefully consider its obligations under the AIE Regulations and ensure that the appellants are provided with fully reasoned decisions in all cases.
22. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information