Cinneadh
Mr F and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-140563-J6S4Q4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-140563-J6S4Q4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Coillte was justified in imposing a fee under article 15(1) of the AIE Regulations
23 April 2024
1. The appellant made the following request to Coillte on 10 May 2023.
“I would to receive an electronic copy of all Operational Monitoring Records for works on the following felling licences
CN04-FL0020
CN04-FL0039
Please include details of the relevant licences.
I wish to receive the information in electronic format”
2. Coillte issued its original decision on 9 June 2023. It said:
“Having carefully considered the Request, I have made a final decision on 09.06.2023. I have identified 5 records which are relevant to your request. I am granting access to all of these records subject to payment of the charges outlined below. Please refer to the attached Schedule of Records for details of records being provided.
Charges
Article 15 of the AIE Regulations allows a public authority to charge a reasonable fee for the cost of supplying environmental information. We have decided that a charge will apply to your AIE request. As detailed on our website, the charge is based on a rate of €20 per hour for search, retrieval, compilation & copying. We have completed our review of your AIE request and have compiled the information that we hold related to your request. We have calculated that completing your AIE request took one hour and therefore a charge of will be applied to your AIE request. This assessment can be broken down as follows:
Search and retrieval time – 1.5 hours @ €20ph (time spent locating relevant files/data sources and collating relevant documents contained on those files/data sources) €30 Compilation time – 0.5 hours @ €20ph (time spent examining the documents, considering exemptions, completing redactions if required, and scheduling the records) €10
Total €40
Payment can be made via bank transfer as set out on the attached invoice. Alternatively, you may pay by cheque/postal order made payable to Coillte and posted to Accounts Receivable, Coillte CGA, Cedar House, Moneen Road, Castlebar, Co Mayo. Please ensure to quote the Coillte AIE Reference Number when making payment by either method. Payment will be required in advance of disclosure. If payment is not received within 30 days it will be assumed that the information is no longer required, and Coillte is not obliged to furnish the information sought in your request. If you are the holder of a current medical card or are in receipt of social welfare benefit, Coillte may reduce the charge on production of evidence by you, e.g., if you forward a copy of your medical card.”
3. The appellant requested an internal review from Coillte on 9 June 2023. He said:
“I wish to request an internal review of this decision. I do not accept that the charges are reasonable. To identify and isolate 5 records from a database all relating to the same site should not take 1.5 hours and it should not take a further 0.5 hours to 'compile' that for release.”
4. On 10 July 2023, Coillte issued its internal review.
“ Per Article 11(2) of the AIE Regulations, my role is to affirm, vary, or annul the Decision. Having re-examined both the Request and the Decision, I affirm the Decision, the basis of which conclusion is set out accordingly hereunder.
Reasons for Decision
Article 15(1)(a) of the AIE Regulations allows a public authority to charge a reasonable fee for the provision of environmental information. In that regard, Coillte is within its rights to charge you for the provision of information in relation to your Request, provided such charge is reasonable. As internal reviewer, I have re-considered the appropriateness and reasonableness of the charge. In so doing, I took account the basis for the charge, the volume of material captured by your Request, and the overall resources necessary to supply the information to you. The output of the search carried out was a total of five documents, which the Decision said would be granted to you subject to a fee. The basis on which the charge of €40 was calculated is clearly set out in the table included in the Decision. Having re-examined the work performed to respond to the Request, the charge was calculated based on two hours of work performing the following tasks: corresponding with relevant Coillte personnel to obtain copies of the requested records, reviewing the records to ensure all the relevant information was being provided, considering exemptions and scheduling the records.
Having consulted with the decision maker, I am satisfied that these actions took a total of two hours and that this was a reasonable amount of time to take in responding to the Request. Further, I am satisfied that the basis on which the fees were calculated was in accordance with Coillte's published policy and that this was communicated to you in the Decision. Finally, I am satisfied that the charge was correctly calculated on the said basis.
In light of the foregoing and the fact that the charge is strictly limited to reimbursement for man-hours spent on the request, I am satisfied that the charge is reasonable. The amount of the charge is therefore affirmed. I am also satisfied that guidance was provided in the Decision as to the circumstances in which a charge may be reduced, e.g. if you are in receipt of a medical card or social welfare benefit.
5. The appellant appealed to this Office on 19 July 2023.
6. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and Coillte. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority's internal review decisions and to affirm, annul or vary them. Article 11(5) of the regulations sets out that a reference to a request being refused, in whole or in part information includes a request that has not been dealt with in accordance with Articles 3, 4 or 5 of the AIE Directive, including the ground that the amount of the fee charged under article 15(1) is excessive.
9. In this appeal, Coillte has decided to grant the appellant’s request, subject to payment of a fee. The appellant submits that the fee in this case is not reasonable. As such the scope of my review in each case is confined to whether or not the request has been dealt with in accordance with Article 5(2) of the AIE Directive (implemented by article 15(1) of the AIE Regulations).
Submissions
10. To ensure all relevant issues are set out in a comprehensive manner, I have quoted below from the submissions of both parties.
11. On 18 July 2023 the appellant sent the following submission to this Office:
I contend that the fees applied by Coillte are unreasonable as they are based on an excessive amount of time to complete what should be a very simple task.
Coillte is seeking advance payment of fees before releasing the information which is not consistent with Preamble 18 of the Directive.
The IR decision states;
“Having re-examined the work performed to respond to the Request, the charge was calculated based on two hours of work performing the following tasks: corresponding with relevant Coillte personnel to obtain copies of the requested records, reviewing the records to ensure all the relevant information was being provided, considering exemptions and scheduling the records. Having consulted with the decision maker, I am satisfied that these actions took a total of two hours and that this was a reasonable amount of time to take in responding to the Request.”
I find it difficult to accept that it would take 2 hours of work for Coillte to fulfil such a simple request.
If the AIE section does not have access to such basic records and it does take 2 hours then I would question whether Coillte has its environmental information stored "with a view to its active and systematic dissemination to the public"
It is not reasonable for a public authority to charge for time taken which results from fundamental inefficiencies in its data storage in terms of its duties under the AIE Directive.
I contend that using an efficient record keeping system the requested records should be identified in a matter of seconds using a search of the relevant database, applying appropriate filters.
The IR decision goes on;
In light of the foregoing and the fact that the charge is strictly limited to reimbursement for man-hours spent on the request, I am satisfied that the charge is reasonable.
The AIE Regulations are a statutory responsibility of public authorities therefore it should be expected that at least a proportion of the time taken to process AIE requests should be absorbed as part of the general duties of the staff of the public authority. To seek to be reimbursed for the "man- hours" spent effectively means that Coillte is not treating the implementation of the Regulations as a statutory duty but as a self-funding activity. It could be argued that if Coillte is over-estimating the time taken for the work and / or that the staff carrying out the work are paid less than €20 per hour then Coillte is turning a statutory duty in to a commercial activity. This is not reasonable. The regulations require the charging of fees to be reasonable having regard to the Directive.
That final caveat is highly significant – note Preamble 18.
It is my view that the application of (particularly excessive) charges by Coillte is intended to act as a disincentive to public access to environmental information, particularly in terms of routine requests which Coillte is aware that I make.
As you are aware I am a medical card holder so I may have been entitled to a one third reduction in the 40 euro fee – in that case it is costing me more to appeal this decision than it would to acquire the information but there is a point of principle at stake here.
Coillte too is aware that I am a medical card holder. The motivation for Coillte in applying a charge in this case must be questioned. Why pursue making a charge for less than €15 when the cost to Coillte of the additional administrative work involved in calculating and creating the invoice and processing the payment would exceed the value of the payment? Charges should not be applied as a deterrent and it is my view that Coillte applies fees to try and deter AIE requests.
The information is of a type that I seek routinely and there is no question that it is releasable information. The Commissioner has indicated in his decision in the combined cases of OCE-129497-C3R3C7 and OCE-132734-K2K5D8 that;
It is worth noting that if Coillte accepts that a right of access exists to such operational monitoring information, as it decided to release in the previous similar cases, albeit for a smaller area, there is nothing to stop it from publishing such information regularly, thereby avoiding the need to process AIE Requests seeking these reports. Indeed, greater proactive publication of environmental information is a significant tool in managing the number of AIE requests made on such matters.
It would appear that Coillte's policy is to try and charge for environmental information rather than actively disseminate it. This is not consistent with the spirit of the AIE Directive, in particular Article 7 (2) (e) in this case.
Reduced Fees
Coillte’s schedule of fees states;
“If you are the holder of a current medical card or are in receipt of social welfare benefit, Coillte may reduce the charge on production of evidence by you, e.g., if you forward a copy of your medical card”.
Coillte only indicates that it ‘may’ reduce the charges, not that it will. This in itself could act as a deterrent to potential requesters.
Coillte’s original decision letter also states;
“Payment will be required in advance of disclosure. If payment is not received within 30 days it will be assumed that the information is no longer required, and Coillte is not obliged to furnish the information sought in your request.”
This statement is fundamentally incorrect because a requester is entitled to seek an internal review of the decision and subsequently appeal that decision if dissatisfied. Until the request is concluded the obligation to release the information remains.
The Regulations state;
15. (1) (a) A public authority may charge a fee when it makes available environmental information in accordance with these Regulations (including when it makes such information available following an appeal to the Commissioner under article 12), provided that such fee shall be reasonable having regard to the Directive.
The public authority may charge a fee when it makes available environmental information. Coillte’s decision indicates that payment is required in advance of disclosure. My reading of the Regulations is that the public authority can apply the charge when it makes the information available, not in advance of making the information available as Coillte is trying to do here.
Preamble 18 of the AIE Directive states;
Public authorities should be able to make a charge for supplying environmental information but such a charge should be reasonable. This implies that, as a general rule, charges may not exceed actual costs of producing the material in question. Instances where advance payment will be required should be limited. In particular cases, where public authorities make available environmental information on a commercial basis, and where this is necessary in order to guarantee the continuation of collecting and publishing such information, a market based charge is considered to be reasonable; an advance payment may be required.
Coillte routinely seeks advance payment; often without releasing a detailed a Schedule of Records.
Coillte has no commercial mandate for providing environmental information therefore does not fall within the ambit of circumstances where a market based charge is reasonable. Despite this it is seeking to apply a market based charge in advance of release.
As an aside, in more recent requests Coillte is seeking payment even before carrying out searches for environmental information.
If during the course of the appeal the public authority raises new grounds or puts forward new facts then I am entitled to be put on notice of them and to be given an opportunity to make another submission.”
12. On 9 October 2023, Coillte made the following submission to this Office:
“Article 15 of the AIE Regulations states the following: “(1) (a) A public authority may charge a fee when it makes available environmental information in accordance with these Regulations (including when it makes such information available following an appeal to the Commissioner under article 12), provided that such fee shall be reasonable having regard to the Directive.” 4.2 The term “the Directive” refers to Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (the “Directive”). Recital 18 of the Directive states:
“Public authorities should be able to make a charge for supplying environmental information but such a charge should be reasonable. This implies that, as a general rule, charges may not exceed actual costs of producing the material in question. Instances where advance payment will be required should be limited. In particular cases, where public authorities make available environmental information on a commercial basis, and where this is necessary in order to guarantee the continuation of collecting and publishing such information, a market-based charge is considered to be reasonable; an advance payment may be required. A schedule of charges should be published and made available to applicants together with information on the circumstances in which a charge may be levied or waived.”
This language is mirrored in Article 5 of the Directive, which states at sub-articles (2) and (3): “2. Public authorities may make a charge for supplying any environmental information but such charge shall not exceed a reasonable amount. 3. Where charges are made, public authorities shall publish and make available to applicants a schedule of such charges as well as information on the circumstances in which a charge may be levied or waived.”
As detailed in the IR Decision, the Charge was calculated based on 2 hours of work. Our in-house team dedicated to AIE requests performed the following tasks in identifying the Information:
Corresponding with relevant Coillte personnel to retrieve all information likely falling within the Request; (b) Review of the resulting information to ensure that no information appeared to be missing; (c) Consideration of any exemptions pursuant to the AIE Regulations, which would not permit Coillte to disclose the underlying information; and (d) Review of the Information and compilation of a detailed schedule to provide to the Applicant Engagement with a senior member of Coillte staff, who is a subject matter expert, for instruction.
Having spoken with the initial decision-maker and the AIE team, I am satisfied that this work was completed at all stages at the appropriate level of expertise. 4.6 In his referral for internal review, the Applicant asserts that to “identify and isolate 5 records from a database all relating to the same site should not take 1.5 hours” and furthermore asserts that “it should not take a further 0.5 hours to 'compile'” those records. However, there is no correlation between the number of records identified and the amount of time required to complete searches to the extent required by the AIE Regulations.
I am satisfied that Coillte worked as efficiently as possible to respond to the Request and provided the Applicant with a detailed schedule of the time involved. I refer to the decision of the Court of Justice of the European Union in East Sussex County Council v Information Commissioner (East Sussex), in which the Court found that all of the factors on the basis of which the amount of the charge is calculated must relate to the actual costs of supplying the requested information. This may include the costs attributable to the time spent by the staff of the public authority concerned on answering an individual request for information, including the time spent on searching for the information and putting it in the form required. The key caveat in this case was the ongoing obligation on Member States “to establish and maintain registers and lists of environmental information held by public authorities”. This clearly does not apply in the context of the Request, in which the information provided concerns Operational Monitoring Records relating to two identified harvesting sites.
This case was recently cited with approval in the decision of your office Ms M and Department of Agriculture, Food and the Marine. In Ms M, the Commissioner ultimately found against the public authority and held that the charge applied was unreasonable in the circumstances. However, the decision in Ms M should not apply in the current circumstances for the following reasons:
In Ms M, the Department failed to set out the basis on which the charge was calculated, despite being explicitly asked to do so by the assigned investigator. In the present circumstances, the basis was clearly set out in Coillte’s email acknowledging the Request and in the schedule of costs supplied to the Applicant. It is also available to the public at large on Coillte’s website. (b) In Ms M, the public authority referred to work involved in “search, retrieval and copying of information” in the initial decision but the internal review referred only to work completed in relation to redaction. In the present circumstances, Coillte has been consistent in documenting the work undertaken by its employees in the Initial Decision and the IR Decision.
I also refer to the case of Open Focus and Sligo County Council, in which it was held: “My conclusion is that the Council's imposition of a fee in this case is not in compliance with the requirements of article 15 of the Regulations. This is because the Council failed to make available to the public details of its charges, how they are calculated and the circumstances in which they will be waived.” Here, the public authority’s failure to publicise its charges was the crux of the decision to find against it. By analogy, Coillte’s transparency in light of the exigencies of the AIE Regulations should support its argument that the Charge was reasonable.
As noted throughout this submission, Coillte has at all times acted in accordance with its obligations under the AIE Regulations and the Directive. Coillte has granted the Request and will gladly make the Information available to the Applicant once he has paid the Charge.”
13. Article 5 of Directive 2003/4/EC provides:
“1. Access to any public registers or lists established and maintained as mentioned in Article 3(5) and examination in situ of the information requested shall be free of charge.
2. Public authorities may make a charge for supplying any environmental information but such charge shall not exceed a reasonable amount.
3. Where charges are made, public authorities shall publish and make available to applicants a schedule of such charges as well as information on the circumstances in which a charge may be levied or waived.”
14. Article 15(1) of the AIE Regulations broadly transposes article 5 of the Directive and provides as follows:
“15 (1) (a) A public authority may charge a fee when it makes available environmental information in accordance with these Regulations (including when it makes such information available following an appeal to the Commissioner under article 12), provided that such fee shall be reasonable having regard to the Directive.
(b) Notwithstanding sub-article (a), a public authority shall not charge a fee for access to any public registers or lists of environmental information pursuant to article 5(1)(d).
(c) Notwithstanding sub-article (a), a public authority shall not charge a fee for the examination in situ of information requested.
(d) Where an applicant examines information in situ and wishes to obtain copies of that information, a public authority may charge a fee, consistent with the list of fees specified under article 15(2) for the provision of such copies.”
15. The question to be addressed in this appeal is whether the fee of €40, imposed by Coillte in this case, was reasonable as per the requirements of article 15(1) of the AIE Regulations.
16. In his Opinion in Commission v Germany which concerned Directive 90/313/EEC (the predecessor of the current AIE Directive), Advocate General Fennelly considered that the notion of what is “reasonable” must be interpreted in light of the general scheme and purpose of the Directive. In light of this, “the question of whether the charges for the supply of information are ‘reasonable’ must be judged from the perspective of the member of the public requesting the information, rather than that of the public authority” (paragraph 23).
17. The Advocate General’s view was that, unlike most other categories of publicly held information, the likely cost will inevitably have a direct bearing on the extent to which the public will use the right of access. He considered that “requiring the individual seeker of information to bear what is effectively the entire cost of processing the request would amount to restricting the enjoyment of the right of access, in practice if not in law, to those who have a direct interest in the information, contrary to the clear exclusion of the need for such an interest” (paragraph 25).
18. He also noted that “since access to environmental information is in the public interest, it follows that public authorities, and, ultimately, the general public through the State budget, should bear that part of the burden of making this information available which is represented by the time and effort of public officials” (paragraph 24).
19. He was “of the opinion that Article 5 should be interpreted as allowing Member States to charge either a standard scale of fees, which need not be based directly on the direct costs, or a charge based directly on such costs” but that “in neither case may the fee or the charge exceed an amount which is equivalent to reasonable, direct costs, or be such as to permit the charging out of part of the cost and time of a public authority in performing a public duty” (paragraph 32).
20. In C-71/14 East Sussex County Council v Information Commissioner, the Court of Justice found that all of the factors on the basis of which the amount of the charge is calculated must relate to the actual costs of supplying the requested information. This may include the costs attributable to the time spent by the staff of the public authority concerned on answering an individual request for information, including the time spent on searching for the information and putting it in the form required.
21. The Court found that the expression “reasonable amount” in the AIE directive does not include any amount that may have a deterrent effect on persons wishing to obtain information or that may restrict their right of access to information. The Court found that “in order to assess whether a charge…has a deterrent effect, account must be taken both of the economic situation of the person requesting the information and of the public interest in the protection of the environment. That assessment cannot therefore relate solely to the person’s economic situation but must also be based on an objective analysis of the amount of the charge. To that extent, the charge must not exceed the financial capacity of the person concerned, nor in any event appear objectively unreasonable” (paragraph 43).
22. To determine whether the charge imposed by Coillte in this case has a deterrent effect on persons wishing to obtain the information or that may restrict their right of access to information, I first must take account of the economic situation of the requestor. Coillte, in both its original decision and internal review stated that the appellant should inform it if he was a current medical card holder or in receipt of social welfare benefit, in which case it may charge a reduced fee of 12EUR (6EUR per hour). I consider that in providing for such a reduced rate, Coillte are taking into account the economic situation of the requestor.
23. As noted in the appellant’s submissions, he is a medical card holder, and has stated that Coillte is also aware of this fact. However, the appellant has so far failed to engage with Coillte on this issue which would likely have led to a significant reduction in the fee proposed. The appellant said in his submissions to this Office that the reason for this was that he wanted to appeal the case to this Office on a point of principle. However, I must make my decision based on the facts before me in this appeal. The appellant also acknowledged that it is more costly for him to bring the appeal to this Office, rather than to engage with Coillte and accept the 40EUR charge, or the reduced fee of 12EUR (6EUR per hour) which it seems likely he would have been entitled to if he had produced his medical card.
24. There is an argument that as Coillte is aware (according to the appellant) that he is a medical card holder, it should have automatically proceeded to calculate the charge at the reduced rate. However, the circumstances of an individual can change over time, and I do not think Coillte acted unfairly in requesting engagement from the appellant on this point before the reduced fee was considered. In circumstances where Coillte has made it clear that the appellant may be entitled to a reduced rate, yet the appellant has not engaged on that issue, I find it difficult to accept that Coillte has not taken account of the appellant’s economic circumstances. It is unfortunate the appellant has not engaged with Coillte on this point.
25. For the second limb of the test to determine whether the charge in this case has a deterrent effect, I need to consider the whether the charge is objectively reasonable. The appellant asserts: “I contend that the fees applied by Coillte are unreasonable as they are based on an excessive amount of time to complete what should be a very simple task”
26. Coillte has set out the basis on which the charge was calculated. It is clear the appellant was charged a fee of 20EUR per hour for 2 hours of work. Coillte has set out what was involved in this work and how the 2-hour time frame was arrived at in some level of detail. It said:
“the Charge was calculated based on 2 hours of work. Our in-house team dedicated to AIE requests performed the following tasks in identifying the Information:
Corresponding with relevant Coillte personnel to retrieve all information likely falling within the Request; (b) Review of the resulting information to ensure that no information appeared to be missing; (c) Consideration of any exemptions pursuant to the AIE Regulations, which would not permit Coillte to disclose the underlying information; and (d) Review of the Information and compilation of a detailed schedule to provide to the Applicant Engagement with a senior member of Coillte staff, who is a subject matter expert, for instruction.”
27. The appellant asserts that it is Coillte’s failure to organise its information efficiently that has resulted in a two-hour time frame and incurred a 40EUR charge. He said:
“If the AIE section does not have access to such basic records and it does take 2 hours then I would question whether Coillte has its environmental information stored "with a view to its active and systematic dissemination to the public”. It is not reasonable for a public authority to charge for time taken which results from fundamental inefficiencies in its data storage in terms of its duties under the AIE Directive. I contend that using an efficient record keeping system the requested records should be identified in a matter of seconds using a search of the relevant database, applying appropriate filters.”
28. I have thought about this and considered in detail the substance of the appellant’s request. Article 15(1) makes it clear that the question of what is a reasonable fee must be approached having regard to the requirements of the AIE Directive. Article 3(5) of the Directive requires Member States to ensure that “officials are required to support the public in seeking access to information” and that “the practical arrangements are defined for ensuring that the right of access to environmental information can be effectively exercised”. Article 7(1) seeks to ensure that public authorities are required “to organise the environmental information which is relevant to their functions and which is held by or for them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology, where available”. With this in mind, it is clear that AIE requests of a general nature often are of a kind that one would expect to either be proactively published by the public authority or organised and maintained by the public authority in a manner that enables its easy dissemination on request. In such circumstances I do not think it would be reasonable to allow a public authority to rely on its own failure to adequately organise its information to justify the imposition of a charge on the appellant in respect of work which arguably would not have been required had proper document management arrangements been in place.
29. Having said that, I am not persuaded the particular information request at issue in this appeal falls into the category described above, rather it appears to be quite far on the specific end of the spectrum– namely Operational Monitoring Records for two specific felling licences. As such I am not persuaded it is information that I would necessarily expect Coillte to be proactively publishing or hold in a way that enables easy dissemination. It follows that the timeframe of 2 hours as set out by Coillte for processing this information request, bearing in mind the breakdown it has given in how it arrived at this timeframe, does not to my mind seem disproportionate or excessive. Furthermore, I would point out that the steps in the process detailed by Coillte are of the type that this Office would expect to be undertaken in response to a request for environmental information.
30. This does not contradict or negate from my sentiments in a previous decision, as pointed out by the appellant in his submissions, that there is nothing to stop the public authority from publishing such information regularly, thereby avoiding the need to process AIE Requests seeking such specific information. Indeed, greater proactive publication of environmental information is a significant tool in managing the number of AIE requests made on such matters. But I am not persuaded by the appellant’s argument, particularly bearing in mind the very specific and detailed nature of his request, that the charges proposed by Coillte are as a result of “fundamental inefficiencies in its data storage in terms of its duties under the AIE Directive”. I have seen no evidence that this is the case.
31. Turning to the issue of the fee itself, Advocate General Fennelly’s Opinion in case C-217/97 made it clear that overall reasonableness of a fee must be judged from the perspective of members of the public, not public authorities. Drawing on my experience from my various statutory remits, I consider that the average member of the public would not necessarily find 40EUR to be an unreasonable sum of money in the context of the other comparable expenses that members of the public incur on a daily basis. For example, an appeal to this Office in the absence of a medical card or other such mitigating factor incurs a charge of 50EUR. Equally, I find that a fee of 12EUR which is likely to be available to the appellant, being the holder of a medical card, is also objectively reasonable.
32. While not appropriate to make a direct comparison, it is also worth considering that the fees in dispute in C-71/14 East Sussex County Council v Information Commissioner for the supply of information relating to property charges (a total charge of approximately 23EUR) and in the analogous case of C-216/05 Commission v Ireland, concerning fees for participation in the environmental impact assessment procedure (20EUR in procedures before local authorities and 45EUR in procedures before An Bord Pleanála), were not dissimilar to the fee at issue in this appeal. I am mindful that the aforementioned cases were all unique in their circumstances, were some years ago now, and account naturally should be taken of the fact that currency values can fluctuate over time due to a variety of factors.
33. Taking all of this into account, in the circumstances of this case I am not persuaded that the fee imposed by Coillte is unreasonable either subjectively or objectively – the test set out by East Sussex to determine whether the charge imposed has a deterrent effect on persons wishing to obtain the information or that may restrict their right of access to information. It follows that I find that Coillte was justified in charging a fee of 40EUR in this case.
34. The appellant states “The motivation for Coillte in applying a charge in this case must be questioned. Why pursue making a charge for less than €15 when the cost to Coillte of the additional administrative work involved in calculating and creating the invoice and processing the payment would exceed the value of the payment?”. For the reasons I have set out in detail above, I do not consider the fee imposed by Coillte in this case to be unreasonable and do not consider it to be a deterrent. Beyond that, Coillte’s decision to charge a fee versus the administrative costs involved in calculating and creating an invoice is an internal matter for Coillte alone. My remit is to decide if the fee imposed under article 15(1) is justified, and in this case I have found that it is.
35. The appellant is of the opinion that as he makes frequent requests of this nature, Coillte is trying to deter him by charging a fee. This decision deals with the circumstances of this particular appeal only, and while I have found the fee proposed by Coillte is reasonable in this instance, I make no determination on whether fees charged in relation to any other AIE requests made by the appellant or any other requestor are justified. I can reassure both parties that this will always be determined on a case by case basis, having regard to the particular merits of the appeal before me.
36. Finally, the appellant asserts that Coillte’s requirement for the charge to be paid in advance of the information being released is contrary to the Directive. Recital 18 of the Directive clearly states that requests for the charge to be paid in advance of the information being released is allowed in limited circumstances. It clearly does not say that public authorities are not allowed to do this, rather that there are limits to doing so.
37. Recital 18 of the Directive (which is non-binding but gives insight into the intentions of the Directive) states:
“Public authorities should be able to make a charge for supplying environmental information but such a charge should be reasonable. This implies that, as a general rule, charges may not exceed actual costs of producing the material in question. Instances where advance payment will be required should be limited. In particular cases, where public authorities make available environmental information on a commercial basis, and where this is necessary in order to guarantee the continuation of collecting and publishing such information, a market-based charge is considered to be reasonable; an advance payment may be required…..”
38. I have found that the charge proposed by Coillte in this case (40 EUR with a likelihood of being reduced to 12EUR if a valid medical card is produced) to be reasonable. With this in mind and looking at the facts before me, I see no reason why the requirement of an advance payment in this case should be contrary to the provisions of the Directive. The appellant says that “Coillte routinely seeks advance payment; often without releasing a detailed a Schedule of Records...As an aside, in more recent requests Coillte is seeking payment even before carrying out searches for environmental information.” While this decision deals with the imposition of a fee in this appeal only, nonetheless Coillte should bear in mind when processing future AIE requests, that recital 18 of the Directive states that instances where advance payment will be required should be limited. Again, this of course will be decided by me on a case by case basis having regard to the AIE Directive and the merits of each individual appeal.
39. Having carried out a review under article 12(5) of the AIE Regulations, I affirm Coillte’s decision to charge a fee of 40EUR under article 15(1). Coillte and the appellant should liaise directly on whether the appellant would like to proceed with the request.
40. 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