Cinneadh
Dr. Fred Logue and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-147437-C1W7K5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-147437-C1W7K5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
18 December 2024
1. On 28 December 2023, the appellant made the following request under the AIE Regulations to Coillte:
(1) For each of the last three years, i.e. 2021, 2022 and 2023 please provide a list of AIE appeals to the Commissioner for Environmental Information against decisions of your organisation which were initiated in each of those years with the date of the appeal and the Commissioner’s case reference.
(2) For each appeal please indicate whether external legal practitioners were engaged.
(3) In each case where the answer to question (2) was yes please provide the name of the solicitors and/or counsel that were engaged.
(4) In each case where eternal legal counsel was engaged please provide the costs broken down as follows:
(i) Solicitors professional fee;
(ii) VAT;
(iii) counsel’s fees per counsel if more than one; and
(iv) itemised outlay
(5) For each of the three years listed in (1) please provide the total overall spend by your organisation on external legal advice relating to AIE requests, appeals and litigation.
We would like to get this information in Excel format.
2. As will be set out below in more detail, the appellant wanted this information to fully participate in a communication to the Aarhus Convention Compliance Committee (the ACCC).
3. Coillte responded to the appellant’s request on 26 January 2024, informing him that it did not consider that information to be “environmental information” within the meaning of article 3(1) of the AIE Regulations. The appellant sought an internal review of this decision on the same date.
4. On 23 February 2024, Coillte provided the outcome of its internal review to the appellant. The internal review, which upheld the original decision, can be summarised as follows:
(i) Coillte considered that the information requested does not of itself concern the state of the elements, nor any release into the environment with a likely effect thereupon, and therefore, at most, it falls to be considered under article 3(1)(c) of the Regulations.
(ii) Coillte considered any link between the number of appeals and their associated case references, whether external legal practitioners were engaged, their identity and details of costs paid to them and environmental impacts arising therefrom, as overly remote to qualify as “environmental information” for the purposes of the AIE Regulations.
(iii) Coillte also “without prejudice”, provided the appellant with some information in relation to the first part of the AIE request, relating to the numbers of decisions appealed to the OCEI, including a link to the National AIE Statistics from the Department of the Environment, Climate and Communications website.
5. The appellant brought an appeal to my Office on 16 March 2024.
6. In accordance with article 12(5) of the AIE Regulations, the role of my 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, I will require the public authority to make available environmental information to the appellant.
7. My powers as Commissioner for Environmental Information apply only in respect of environmental information held by or for a public authority. It is clear from Coillte’s internal review decision, along with it correspondence with this Office, that it is Coillte’s position that the information sought by the appellant is not “environmental information” such that it falls outside the scope of the AIE Regulations.
8. In accordance with my Office’s Procedures Manual, available at www.ocei.ie, our general practice in cases such as this, concerning a threshold jurisdictional issue, is to limit my review to the preliminary matter of whether the information sought is “environmental information” such that it falls within the of the AIE Regulations.
9. Accordingly, I am satisfied that it is appropriate to limit the scope of this review to whether Coillte was justified in refusing access to the information requested by the appellant on the basis that it does not constitute “environmental information” within the definition provided at article 3(1) of the AIE Regulations.
Status of requested information
10. As per my Office’s standard procedures, Coillte was requested to provide a copy of the subject matter information/records in this matter for the purposes of my review. In response, Coillte submitted: “Whilst [it] holds the information requested [it does] not have it in the format of a list or excel list as requested.” Coillte then suggested that I should “consider [its] submissions based on the subject matter of the information requested, which is clear from the request itself and from the contents of [its] submissions… [and that it does] not intend producing a list at this time.”
11. it is my view that it falls to me to decide on a case by case basis whether it is essential for me to review the entire content of the requested information before determining whether it is environmental information.
12. In many cases the content of the requested information will be highly relevant to the determination. This is one of the reasons why, in most cases, I require the public authority to make the requested information available to my Office for the purposes of my review. In other cases, the information requested will not itself be intrinsically environmental and the question will be whether the information requested is information ‘on’ a different measure or activity which is likely to affect the environment. In such cases examination of the entire content of the requested information may be unnecessary. I am satisfied that this review falls into the latter category of cases and that I was able to carry out my review without reviewing the requested information.
Submissions of the parties
13. In his appeal dated 16 March 2024, which was received by my Office on 19 March 2024, the appellant submitted that the information requested was necessary for his client’s communication to the ACCC in relation to the prohibitive costs of appeals (case ACCC/C/2023/199). The appellant made further submissions to my Office on 9 April 2024 in support of his appeal, which are summarised below.
14. The appellant submitted that Article 9(4) of the Aarhus Convention requires that the procedures for access to justice under Article 9(1) must not be prohibitively expensive. He submitted that, for AIE matters, there are several instances of access to justice under the first paragraph of Article 9(1) starting with the Commissioner for Environmental Information (CEI) whose decisions are further capable of being appealed to the High Court on a point of law.
15. The appellant submitted that the costs of appeals to the Courts are subject to special provision in Sections 3 and 5 of the Environment (Miscellaneous Provisions) Act 2011 which alters the normal “loser pays” rule in litigation to “one-way cost shifting” for AIE appeals, whereby the requestor is not exposed to adverse costs if they lose but is entitled to recover costs if they win, submitting that the Irish Courts have ruled (e.g. Heather Hill) that these special costs rules give effect to Ireland’s obligations under the Aarhus Convention.
16. The appellant submitted that there are no similar provisions, or indeed any provisions, relating to the costs of appeals to this Office. The appellant further submitted that he is advising his client (Right to Know CLG) on a communication to the ACCC alleging that Ireland has not complied with Article 9(4) since it has not implemented any measures to ensure that the costs of appeals to this Office are not prohibitively expensive. The appellant submitted that this AIE request is part of the research that he is undertaking in order to establish the actual costs of appeals to this Office so that they can be presented to the ACCC so as to inform it about typical costs incurred by parties to appeals to this Office. The appellant made similar requests to a number of public authorities as part of this research.
17. The appellant referred to the definition of “environmental information” in Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ). He submitted that the required analysis is fact specific and a purposive approach to interpretation should be used having regard to the objectives of the Aarhus Convention and the AIE Directive, particularly in marginal cases. The appellant submitted that “the public authority rejected the request on the basis that the link between the information and impacts on the environment was, in essence too remote”. He submitted that “the public authority misinterpreted the AIE Regulations and did not use the correct legal test for environmental information … The question of whether information is on a measure is one of whether it is about, relates to or concerns that measure. It does not necessarily depend on a connection between the information and environmental impacts.”
18. The appellant submitted that this Office has already held, in cases CEI/12/0008 (Ms. Attracta Uí Bhroin and Department of Arts, Heritage and the Gaeltacht) and OCE-93406-G5Y0Y0 (Right to Know CLG and Department of Communications, Climate Action and the Environment), that the AIE Regulations come within the concept of measures designed to protect the environment and therefore are within category (c). He further submitted that per the decision in Electricity Supply Board v Commissioner for Environmental Information [2024] IEHC 17 (ESB No. 2), this Office ought to follow its earlier decisions unless there is good reason not to.
19. The appellant argued that, in the current case, information on the legal costs incurred in appeals is clearly integral to this measure. He submitted that the issue of costs and financial barriers to the exercise of environmental rights is an important aspect of the Aarhus Convention and occurs in a number of areas as follows:
a. Article 4(8) tightly controls charges for supplying environmental information.
b. Article 5(2)(c) prohibits charges for accessing publicly available lists, registers or files.
c. Article 6(6) requires access to the information needed for public participation to be free of charge.
d. Article 9(1), second paragraph, requires an AIE reconsideration procedure that is free of charge or inexpensive (note: this correlates to internal review).
e. Article 9(4) requires that the procedures under Articles 9(1) to (3) are not prohibitively expensive.
f. Article 9(5) requires consideration of appropriate assistance mechanisms to remove or reduce financial or other barriers to access to justice.
20. The appellant submitted that it is clear that the cost of AIE appeals is information that is quite central to the overall Aarhus Convention and in particular to AIE and access to justice.
21. The appellant submitted that my Office has already held, in cases OCE-100993-X1G6Q1 (Mr. Ken Foxe, Right to Know CLG and Coillte Teoranta (Coillte)) and OCE-136880-Q2N3W3 (FP Logue Solicitors c/o Dr Fred Logue and An Bord Pleanála), that legal costs are capable of being environmental information. He submitted that there is no material difference between the current case and these earlier cases to distinguish them, such that the current request is not environmental information. The appellant argued that the logic in these cases doesn’t mean that legal costs are environmental information only because the legal action causes delay.
22. Coillte provided submissions to my Office on 7 June 2024, which are summarised below.
23. Coillte firstly considered what “measure/activity” the information requested might be “on” under article 3(1)(c) of the Regulations. It referred to my analysis and decision in recent case OCE-139193-Z4J9X2 (Ms. A. and Coillte), and in particular, the importance of defining or redefining the measure or activity that the information at issue properly relates to.
24. In respect of part (1) of the AIE request, Coillte submitted that the information sought by the appellant is “information “on” the volume of appeals, the reference number assigned to each appeal by the OCEI and a list which would, if collated, require to be redacted to remove personal identification of individual appellants”. It argued that “such a list would not provide any detail / information on the subject matter of the appeals”.
25. Coillte submitted that the “measure/activity” at issue in respect of part (1) of the AIE request is “the administrative function of the OCEI in recording appeals and the administrative function of Coillte in recording of decisions which have been appealed to the CEI during 2021, 2022 and 2023”.
26. In respect of parts (2) and (3), Coillte argued that “information on the retention by Coillte of external legal practitioners, to complement its own in-house legal resources and capabilities, is information on the procuring of legal services and is not information on the subject matter of any appeal to the CEI”.
27. In respect of parts (4) and (5), Coillte submitted that “it is not the case that the costs information is information on the subject matter of any such appeal” and that “the activity Coillte may have expended monies on was the procuring/securing of external legal services (advice) to supplement its own existing in-house legal and other resources and capabilities, in dealing with AIE Requests, appeals (to the CEI) and (associated) litigation”. It argued that, in its view, it is “more accurate not to consider the expenditure on external legal fees to be information on the appeals to the CEI, but, rather, to consider it to be information relating to the retention by Coillte of external legal advisers, and the obtaining by it of additional legal services to complement its own in-house legal resources and capabilities”.
28. Coillte submitted that the “measure/activity” at issue in respect of parts (2), (3), (4) and (5) of the AIE request is “the procuring of external legal services to complement its own in-house legal resources”.
29. Coillte then submitted that the above “measures/activities” “are not measures or activities that have the relevant capability of affecting the elements and factors of the environment” and that, accordingly, the information sought across all categories of the AIE request, is not “environmental information”, for the following reasons.
30. Coillte submitted that the information requested in part (1) relates to the AIE process, with the “measure/activity” concerned being the administrative functions of the OCEI and Coillte within the AIE process, and that this information does not affect nor is it likely to affect the elements or factors of the environment. It submitted that the information at issue in part (1) is a 'collateral matter’ referring to my finding in recent case OCE-127075-M0K8W9 (Mr. X. and Department of Social Protection), where I found that there was no real and substantial possibility that the Department’s decisions to transfer the appellant internally or to second the appellant to another Department, as part of its management of personnel matters, affected the environment in the manner described in paragraph (c) of article 3(1) of the AIE Regulations. Coillte argued that I similarly ought to consider the administrative functions of Coillte and the OCEI (and the use of external legal resources with reference to the remaining parts of the request) as collateral aspects of the AIE process, and not matters that should affect my evaluation of the true nature of the actual measure or activity and its capability of affecting the environment.
31. Coillte argued that the above approach is akin to the reasoning of the UK Upper Tribunal in Department for Transport, DVSA and Porsche Cars GB Ltd v Information Commissioner and John Cieslik [2018] UKUT 127 (AAC) (Porsche) in a decision which overturned a previous decision of the Lower Tribunal which had concluded that information regarding a vehicle safety test, which addressed the safety of the vehicle’s throttle characteristic, was environmental information. Coillte submitted that in Porsche, the Upper Tribunal found that the safety test was a ‘measure’, and the requested information was ‘on’ the safety test. However, the fact that the test involved running an engine, thereby causing emissions, did not of itself mean that the safety test affected environmental elements within the meaning of paragraph (c) of the definition of “environmental information”. Coillte noted that “the Upper Tribunal found that the Lower Tribunal’s reasoning confused or conflated the steps involved in carrying out an activity with the activity itself... [and]...that although running a car engine was a necessary element of carrying out the safety test, that did not of itself mean that, on a purposive approach to the AIE Regulations, the test affected environmental elements or factors”. It noted that “the Upper Tribunal adverted to the principles established in Henney and Glawischnig to the effect that information which has only a minimal connection with the environment is not environmental information… [and it] found that this principle must apply, not only in deciding whether information is on an environmental matter but whether a measure or activity has the requisite environmental effect”.
32. Coillte submitted that, whilst the information requested in parts (2), (3), (4) and (5) relates to the procurement of additional legal resources, the measure or activity of procuring such resources to add to Coillte’s existing ones for the purpose of dealing with appeals to this Office and, with reference to part (5), dealing also with AIE requests and associated litigation, is not one that has affected or is likely to affect the elements or factors of the environment. Coillte submitted that this is analogous to my approach in OCE-139193-Z4J9X2, where I found that the operation by Coillte of a bonus scheme was too remote, theoretical and tenuous to meet the ‘real and substantial possibility’ test set out in the case of Redmond, with the operation of such a scheme presenting only a mere possibility of, or potential for, an effect on the environment.
33. Coillte submitted that “should an appeal be made against a refusal by Coillte to grant an AIE request, and should Coillte engage external legal resources in dealing with the decision to refuse or the appeal, a greater period of time will elapse before a requester is provided with what may transpire to be confirmed as environmental information or as information that may not be refused under the AIE Regulations”. Such a delay, it submitted, “would not determine the true and essential nature of the measure, and its capability to affect the environment within the meaning of paragraph (c) of the definition of “environmental information” in the AIE Regulations”.
34. Coillte submitted that by it engaging in the AIE process, “where it may or may not engage external legal resources, particularly at appeal stage there is a real and substantial possibility, not of a narrowing or expansion of the AIE Regulations and what information is available thereunder, but of a determination that should clarify precisely whether information requested by a requester is available under the AIE Regulations”.
35. Coillte also submitted that a decision of this Office, or indeed the High Court on appeal, affirming a refusal by Coillte under the AIE Regulations, “where Coillte may or may not have engaged external legal resources, would also not lead to any diminution of the amount of information that might be made available to the public that was of possible importance or utility in achieving the aims and purposes of the Convention, Directive or AIE Regulations”. It does not, Coillte further submitted, “as it must be assumed that the legislation comprehensively delineates what is of such importance or utility, and if the true interpretation of same is that particular information falls outside of it, or that a particular ground of refusal under the AIE Regulations was justified, for example, then the information was not to be made available to the public under the AIE Regulations in the first place”. Therefore, Coillte argued, “if the upshot of engagement in the AIE process is that it is found to be correct in refusing to disclose information, the environmental elements and factors would not be affected, directly or indirectly, by the lack of availability of such information to the public”.
36. As above, Coillte submitted that its engagement in the AIE process, with or without engaging external legal resources, in circumstances where a request may be refused leading to an appeal to this Office, or indeed an appeal to the High Court will ultimately determine the precise information-rights of the requester, and obligations of Coillte, in respect of the information requested under the AIE Regulations. It submitted that such a determination will either hold that the information is “environmental information”, or is not, or that grounds of refusal are justified or are not. Coillte submitted that “this may result in a greater or lesser amount of information being released, but whatever the outcome it will be the correct amount of information, no more, no less”. It also argued that the ‘correct’ amount of information must be considered to be that information which the AIE Regulations deemed appropriate in order to achieve the aims and purposes of the Directive and Convention.
37. Coillte submitted that the measure or activity of Coillte procuring legal services to complement its own in-house legal resources whilst engaging in the AIE process, “does not comprise any measure or activity which would have Coillte itself determine what, how much, and when, information should be given the public on environmental matters”, which in its view is dissimilar to RTÉ. It submitted, “rather, at both appeal stages, an independent, and in the case of the High Court, final, and only definitive arbiter of the question will decide whether the information was, and always had been, mandated in principle for release under the AIE Regulations”. It submitted that the measure it has identified, i.e. procuring additional legal resources whilst engaging in the process, therefore, does not expand or narrow any information available under the AIE Regulations, but merely may determine what information is available under the AIE Regulations. It argued therefore that, “when carefully analysed, it is not an incident or aspect of the measures identified that may result in a “narrowing” of the interpretation of the AIE Regulations, or even the “expansion” of same”.
38. Coillte submitted that in the current case, “the appellant is looking for information which tangentially relates to a process that would determine whether particular information was properly available as environmental information, and which, if it was so available, might, or might not, give him information of environmental utility”.
39. Coillte submitted that in the recent judgment in ESB No. 2, Heslin J, noted the decision of the CJEU in Case-470/19 Friends of the Irish Environment v Commissioner for Environmental Information (Friends of the Irish Environment); (at paras. 36 and 37) as follows:
“[36] …As is clear from Recital 1 and Article 1 of that Directive, the purpose of the Directive is to promote increased public access to environmental information and more effective participation by the public in environmental decision-making, with the aim of making better decisions and applying them more effectively, and ultimately, promoting a better environment.
[37] Thus, while the implementation of that objective means that the administrative authorities must give public access to environmental information in their possession, in order to give an account of the decisions they take in that field and to connect citizens with the adoption of those decisions, the same is not true of pleadings and other documents adduced in court proceedings on environmental matters, since the EU legislature did not intend to promote public information in judicial matters and public involvement in decision-making in that area.” (emphasis added)”
40. Coillte submitted that “the Court in [ESB No. 2] proceeded to apply this logic to the task before the arbitrator, and queried whether information about a quasi-judicial compensation process (concerning arguments, and not any determination, or the basis for same, about compensation payable to a particular landowner) could come within the definition of environmental information. It pointed to the fact that there was no role for public participation in the compensation process”, pointing to the following excerpt from para. 130:
“[i]f, as Friends makes clear, the Directive is not intended to capture documents adduced in court proceedings on an environmental measure, it seems to me that the principle must apply with equal force to the process by which the quantum of compensation is determined (being a process which is at a further remove from the measure).”
41. Coillte submitted that when the above aspect of Friends of the Irish Environment and its application by Heslin J in ESB No. 2 is applied to the current appeal and its facts, “it would seem to apply with equal or, indeed, even greater force”. It argued that, “if substantive information on proceedings on environmental matters, such as that which would be contained in “pleadings and other documents adduced” in such proceedings… is not within the purview of the AIE Regulations, this must equally, or even more so, be the case regarding information comprising merely the amounts expended by a party on external legal fees in quasi-judicial and judicial proceedings (as in the instant case), the identity of external legal practitioners and indeed it must also be the case regarding information on the administrative functions of the OCEI and Coillte within the AIE process (reference to Part 1 of the Request)”. Coillte submitted that “like [Friends of the Irish Environment], appeals to this Office are not proceedings in which there is a general role for public participation. There is also no general role for public participation in the course of the OCEI and Coillte carrying out its administrative functions in recording AIE appeals”.
42. Coillte submitted that in ESB No. 2, the Court considered that the above reasoning applied not only to a judicial process, but also to a quasi-judicial one. Coillte therefore argued that it would apply both to information concerning Coillte’s procurement of external legal resources in dealing with appeals to this Office, and also internally dealing with AIE Requests and any litigation associated with the AIE process.
43. Coillte submitted that appeals are part of the architecture of the AIE scheme, and the legislation contemplated the use of same to determine the true extent of information-access rights and obligations. It argued that “to consider that procuring additional legal resources in engaging in appeals entails activity that itself is contemplated as having the capability of affecting the environment, and enables persons to obtain information relating to such invocation, would seem not only too remote to be correct, but also contrary to public policy and to the legislative intent in providing for these rights, and this view would seem to align with the dicta in [Friends of the Irish Environment]”. Coillte also submitted that “this could lead to a further conclusion that any time any party engaged in the statutory appeal mechanisms with a view to determining what information properly fell to be disclosed under the AIE Regulations, any information on such engagement would be “environmental information”, and this would, in Coillte’s submission, sweep too widely, and result in an outcome not intended by the legislation.
44. “Without prejudice” to its above position, Coillte further submitted that, “even if the requested information is information “on” Coillte engaging in the AIE process, as defined, such engagement is, when appropriately analysed as to its true nature, not a measure/activity capable of affecting the environment within the meaning of paragraph (c) of the definition of “environmental information” in the AIE Regulations and when the Redmond test is applied”. Coillte submitted that “while information on the expenditure by Coillte on external legal services relates to its engagement in the AIE process in a broad sense, the expenditure information is not information that is "integral" "critical" to, and/or a "key element" of any success there might be for Coillte in those processes”.
45. Coillte argued that “the procurement and obtaining by it of external legal services in addition to its own, in-house legal and other resources, is not, as a matter of fact, integral or critical to the success of the proceedings / processes concerned”. It submitted that “it can engage at all stages without such additional legal resources but may choose at times to complement its own legal and other resources in that regard”. It also submitted that, “even if that extra legal input might, in a substantive sense, properly be regarded as integral/critical to the success of an appeal or a decision refusing to grant access to information, what the Appellant has requested is not substantive information relating to, or comprising, that input, but mere cost figures, and the identity of external legal practitioners which are yet more removed from what might, at its height, be considered integral to/critical to the success of, the proceedings. This also applies with regard to Part 1 of the Request.”
46. Coillte noted that the Court of Justice of the European Union in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg) and C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig), and the Irish courts since, have held that while the concept of “environmental information” as defined in the AIE Directive is broad there must be more than a minimal connection with the environment. It submitted that the current appeal “is concerned with the amount of money spent by Coillte on external legal services, the identity of such external legal practitioners instructed to assist Coillte in dealing with appeals to the CEI, aimed at ensuring the correct interpretation and application of the AIE Regulations to the information requested, and releasing only whatever information (if any) that is truly, correctly and definitively required to be provided, in light of the conclusion of that exercise and also with the administrative functions of the OCEI and Coillte”. It noted that the information requested is not substantive information concerning the proceedings before the Commissioner.
47. Coillte submitted that “on a purposive and textual interpretation of the AIE Regulations… the legal cost information requested at Part 4 and 5 of the Request is not “on” the proceedings because this emerges from a reading of the AIE Regulations themselves”. It argued that “the definition of “environmental information” in the legislation appears to be framed in a way that suggests that raw cost information relating to a paragraph (c) measure or activity is not of a nature that informs the public of measures or activities affecting the environment, whereas cost information coupled with commentary or analysis may do so”. It also noted that paragraph (e) expressly provides for the inclusion within the definition of “environmental information” of “cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c)”. Coillte submitted therefore, that “it appears that the legislation itself, in providing specifically for the kind of cost/economic information that was included within the definition of environmental information for the purposes of paragraph (c) measures or activities, implicitly indicates that raw cost-figure information may not be envisaged as being included”.
48. Coillte submitted that having regard to the purposive aspect of the tests set out in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney), that the information at issue in this case is not “environmental information” because it does not advance the purpose of the Aarhus Convention and the AIE Directive. It submitted that, “in particular, it is clear the public would not be better informed and better able to contribute to environmental decision-making if they were able to have access to the information concerned”. It also submitted that “the Courts have confirmed [in the judgment in ESB No. 2 and in the decision in Friends of the Irish Environment], that it was not the purpose of the legislation to promote public information in judicial or quasi-judicial matters and public involvement in decision-making in that area and that there was no role for public participation in such processes”.
49. Lastly, Coillte queried – “what assistance the information would give to the requester or the public in engaging with any measure/activity affecting the environment?”.
50. The investigator assigned to this case wrote to Coillte on 19 June 2024 and provided a summary of the appellant’s submissions to this Office dated 9 April 2024, which as outlined above, explain that the information is sought to inform a submission to the ACCC on the prohibitive cost of appeals to my Office. Coillte was provided with an opportunity to include any further information that it considered may be relevant to the Commissioner’s review, including if it wished to make any comments in response to the content of the appellant’s submissions to this Office. Coillte did not make any further submissions, except to confirm that it refuted the position of the appellant.
51. The investigator also provided the appellant with a copy of Coillte’s submissions dated 7 June 2024. The appellant’s response can be summarised as follows:
(i) He submitted that Coillte is picking a measure which lets it put as much distance as possible between the information requested and the measure so that it can justify its refusal. He argued that “this is not an appropriate way for a Public Authority to handle a request for environmental information, in other words to work backwards from the desired result”.
(ii) He reiterated the thrust of his previous submissions, which he understands to set out “simply and logically how it is that basic information about the costs of engaging external lawyers for AIE requests is something that is centrally important to the AIE regime and the Aarhus Convention and indeed, how this is information is in fact needed for a pending communication to the ACCC”. The appellant noted that all parts of the AIE request are based on the same logic. He submitted: “For example, if I have a list of all appeals I can determine what proportion of Coillte’s appeals to the CEI involve external lawyers (parts 1 and 2). The names of the lawyers are also important since I can see if Coillte is using a big law firm and senior lawyers (expensive) or more junior lawyers or smaller firms (cheaper) and indeed the number of lawyers. This is also important to evaluate equality of arms.”
(iii) The appellant noted what he describes as Coillte’s “plaintive” query as to what assistance the information would give to the requester or the public in engaging with any measure/activity affecting the environment. In response, the appellant posed his own query – “what has Coillte got to hide such that it is going to extraordinary efforts to keep secret how much it spends on lawyers fighting to keep environmental information secret?”.
52. 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 by Coillte. In addition, I have had regard to:
• the judgments in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), Redmond & Anor v Commissioner for Environmental Information & Anor [2020] IECA 83 (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB No. 1), Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ) and Electricity Supply Board v Commissioner for Environmental Information [2024] IEHC 17 (ESB No. 2);
• the judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney) which is referenced in the decisions in Redmond, ESB No. 1, RTÉ and ESB No. 2;
• the decision of the UK Upper Tribunal in Department for Transport, DVSA and Porsche Cars GB Ltd v Information Commissioner and John Cieslik [2018] UKUT 127 (AAC) (Porsche);
• the decisions of the Court of Justice of the European Union in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig) and Friends of the Irish Environment Ltd v Commissioner for Environmental Information C-470/19 (Friends of the Irish Environment);
• 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’).
53. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Definition of “environmental information”
54. Article 3(1) of the AIE Regulations provides that “environmental information” means:
“any information in written, visual, aural, electronic or any other material form on:
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c)”
55. According to national and EU case, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB No. 1 at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU. However, the right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the definition.
Identification of a measure or activity
56. Paragraph (c) requires the identification of a relevant measure or activity, which the information sought is “on”. Information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB No. 1 at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term ‘measure’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity” (Mecklenburg at paragraph 20), and a similarly expansive approach should be taken to the term ‘activity’ (RTÉ at paragraph 19).
57. The appellant contends that the relevant measure in this case is the AIE Regulations. He also notes that this Office has already held in previous cases, including CEI/12/0008 and OCE-93406-G5Y0Y0, that the AIE Regulations come within the concept of measures designed to protect the environment and therefore are within category (c).
58. Coillte contends that the relevant measure in respect of part (1) is “the administrative function of the OCEI in recording appeals and the administrative function of Coillte in recording of decisions which have been appealed to the CEI during 2021, 2022 and 2023” and that “the procuring of external legal services to complement its own in-house legal resources”, is the relevant measure in respect of all other parts of the AIE request, which concern the use of external legal services and associated costs. Coillte’s positon is that none of this information comes within the scope of paragraph (c) because it does not advance the purpose of the Aarhus Convention and the Directive.
59. Coillte has argued that the wording of paragraph (c) of article 3(1) implies that raw cost-figure information may not be envisaged as being included, given that paragraph (e) expressly provides for the inclusion of cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c). I do not agree with this suggestion, having regard to the comments of the CJEU in Mecklenburg on the scope of “environmental information”, In paragraphs 19 and 20 of its decision, the CJEU noted:
“[19] It must be noted in the first place that Article 2(a) of the directive includes under 'information relating to the environment' any information on the state of the various aspects of the environment mentioned therein as well as on activities or measures which may adversely affect or protect those aspects, 'including administrative measures and
[20] Secondly, the use in Article 2(a) of the directive of the term ‘including’ indicates that 'administrative measures' is merely an example of the ‘activities’ or ‘measures’ covered by the directive. As the Advocate General pointed out in paragraph 15 of his Opinion, the Community legislature purposely avoided giving any definition of ‘information relating to the environment’ which could lead to the exclusion of any of the activities engaged in by the public authorities, the term ‘measures’ serving merely to make it clear that the acts governed by the directive included all forms of administrative activity.” (emphasis added)
60. I consider that the measure chosen by Coillte in analysing whether the information sought is environmental information is overly narrow. In my view, the relevant measure is the implementation of the AIE Regulations by Coillte (being ‘the AIE process’ as referenced by Coillte throughout its above submissions). This is the case in respect of all parts of the appellant’s AIE request, which I view as interrelated. Furthermore, I note the findings in Minch which included that "likely to affect" the environment in paragraph (c) should really be understood in the sense of being "capable of affecting” the environment. In this context, I consider that information concerning the manner in which a public body such as Coillte implements this legislation, could be considered capable of impacting on public participatory activities; participation which advances the purposes of the Aarhus Convention and the Directive. I will elaborate on my considerations below.
Whether the measure or activity is affecting, likely to affect or designed to protect the environment
61. A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. Collins J, delivering judgment on behalf of the Court of Appeal in Redmond, noted that “something more than a remote or theoretical possibility is required (because that would sweep too widely and could result in the “general and unlimited right of access” that Glawischnig indicates the AIE Directive was not intended to provide) but it is not necessary to establish the probability of a relevant environmental impact (because that would, in my opinion, sweep too narrowly and risk undermining the fundamental objectives of the AIE Directive)” (paragraph 63).
62. The spirit and intent of the AIE process, as outlined in Recital 1 of the AIE Directive, is that “increased public access to environmental information … contribute[s] to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment”. Providing access to environmental information is even more pertinent for public bodies such as Coillte involved directly with operations in the natural environment. The AIE Regulations and perhaps more so, the manner in which the Regulations are implemented by public bodies such as Coillte, determines the extent to which this intent is advanced. Therefore, it is clear to me that there is a real or substantial possibility this measure can be said to have, at least, an indirect effect on the environment.
63. Coillte is a commercial semi-state company, responsible for managing a vast forest/land estate of 440,000 hectares (7% of total land mass in the county). According to its latest Annual Report “A Greener Future for All”:
“Coillte is the nation’s largest forester and producer of certified wood, a natural, renewable and sustainable resource. It is also the largest provider of outdoor recreation spaces in Ireland, it facilitates renewable energy generation on the estate and manufactures panel board wood products. Coillte also enhances and restores biodiversity and delivers nature rehabilitation projects of scale.” (page 12)
64. On this basis, it is clear that Coillte is active in the field of environmental protection and that many of its activities affect or are likely to affect the elements of the environment referred to in paragraphs (a) and (b) of article 3(1) of the AIE Regulations. It follows therefore that Coillte holds vast amounts of environmental information, access to which is important to enable members of the public to know and understand what is happening in the environment around them and effectively participate in environmental decision-making.
65. Due largely to the size and dynamic nature of the forest estate which Coillte manages, as well as the increased public interest in the operations of this body, Coillte has seen a significant rise in recent years in the number of AIE requests it has received, and also an increased number of appeals concerning its decisions on requests, as evidenced by the below statistics.
| YEAR | 2019 | 2020 | 2021 | 2022 | 2023 |
| AIE Requests received by Coillte | 0 | 22 | 73 | 655 | 258 |
| OCEI Appeals concerning Coillte Decisions | 0 | 3 | 5 | 147 | 105 |
| Source: AIE National Statistics (Dept. of the Environment, Climate and Communications |
66. Coillte has argued that recent case law developments including the judgment of Heslin J. in the High Court in ESB No. 2 and my own recent decisions in cases OCE-139193-Z4J9X2 and OCE-127075-M0K8W9, provide sufficient bases for determining that the requested information does not constitute “environmental information”. Firstly, as regards my decisions, I do not agree that the facts of these cases are so similar as to draw the same conclusion, not least as neither of these cases had a direct link or connection to the AIE process. In both cases, the measures were determined to relate to personnel matters, i.e. the decision by Coillte to run a bonus scheme for key management personnel and its decision on how to structure that scheme and the Department of Social Protection’s decisions on employee transfers, and where there was no evidence before me to enable a conclusion that these measures were likely to affect or designed to protect the environment.
67. In relation to Coillte’s reference to the judgment in ESB No. 2 (and in Friends of the Irish Environment), Coillte argues that the courts have drawn a distinction between the aim of promoting effective participation in environmental decision-making and the promotion of public information in judicial matters and public involvement in decision making in that area. Coillte argues that if pleadings and other documents adduced in court proceedings or other quasi-judicial processes on environmental matters are not considered to be environmental information, then by extension the information sought in this case must also be considered similarly detached from relevant public participatory activities. However, I do not agree that this conclusion can be drawn from these judgments. To agree with this would be akin to creating a blanket exemption for information concerning or related to court proceedings or quasi-judicial processes. This would not, in my view, accord with the purpose of the Regulations and the Directive and each case must be addressed on its own particular facts.
68. In relation to the judgment in ESB No. 2, also pointed to by Coillte, Heslin J. was following Collins J. in Redmond, at para. 63, and approved the English decision of Beatson L.J. in Henney, that there must be “a real and substantial possibility that [the measure] will affect the environment, whether directly or indirectly”.
69. It is clear from the Recitals of the Aarhus Convention that the very purpose of the AIE Regime is environmental protection. For example, Recital 9 states: “in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns.”
70. Thus the implementation of the AIE Regulations by a body such as Coillte self-evidently has an impact on the environment. At a minimum, decisions made without transparency and public participation will lack public support. This point is made in Recital 10 of the Aarhus Convention itself:
“Aiming thereby to further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment”
71. As stated in Recital 1 of the Directive, implementation of the AIE regime will lead to a better environment. The measure, therefore, is “likely to affect” the environment as there is a real and substantial possibility that it will affect the environment.
72. The nature and volume of Coillte’s work means that the manner in which it implements the AIE regime as a whole (both in relation to access requests and its organisation and dissemination obligations in article 5 of the Regulations and Article 7 of the Directive) is likely to have an impact on the environment. Taking an approach to the AIE regime that disseminates and discloses the legal minimum of information, or in Coillte’s own words – “the correct amount of information, no more, no less”, is not wrong per se. However, as a matter of fact, such an approach is likely to have an impact on the environment as it is likely to result in less environmental information being released on request or actively disseminated.
73. But the question here is a simple one. Will the implementation of the AIE Regime by Coillte affect the environment, or is it likely to affect the environment? To answer that question in the negative is the same as saying that the access to information provisions of the Aarhus Convention will not lead to a better environment and the aims of that Convention, as set out in its recitals, will not be met. I cannot accept that this is the case. It was clearly the view of the signatory States to the Aarhus Convention that having access to environmental information will achieve the aims of Recital 9, set out in paragraph 69.
74. Similarly, it was also the views of the signatory States that there can be no effective public participation in environmental matters without information, as set out in recitals 7 and 8:
“Recognizing also that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations,
Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights,”
75. Accordingly, I am satisfied that the implementation of the AIE Regulations by Coillte is a measure affecting or likely to affect the elements of the environment as set out in paragraph (c) of the definition of environmental information.
76. I understand that this is a departure from the conclusion of one of my predecessors in CEI/12/0008. In ESB No. 2 the High Court overturned a decision of this Office on a number of bases, including that I had departed from a previous decision without giving adequate reasons for this change of position.
77. The decision in CEI/12/0008 was issued in 2013, almost twelve (12) years ago. In that time there have been a number of Irish, English and EU cases that have clarified the law in relation to the definition of environmental information. I would refer in particular to the Minch, Redmond and Henney judgments. Minch clarified the test for whether a measure had an impact on the elements and factors on the environment while Redmond clarified that the information itself does not need to have this impact, but the focus was on the measure in question.
78. In CEI/12/0008 the then Commissioner concluded that the AIE regime was designed to protect the environment, but only in an “indirect and aspirational way”. In my view, the analysis in that decision that allowed my predecessor to reach that conclusion would not succeed in light of the tests set out in Minch and Redmond. For example, the decision in CEI/12/0008 states that the connection between an AIE request and any impact on the environment is too remote. But in Minch the Court of Appeal states that the test was whether the measure was capable of having an impact on the environment. Applying that test I think that it is clear that in this case how Coillte implements the AIE regime is capable of having an impact on the environment given the extent of its environmental operations and the quantities of environmental information that it holds.
79. Later on in that decision, the conclusion is that the processing of AIE requests is not “designed” to protect the environment. In my view that is not the correct analysis. It is more correct to say that the implementation of the AIE regime, which includes processing AIE requests, affects, or is likely to affect, the environment, in the sense that it is capable of affecting the environment. That is the test set out in article 3(1)(c) of the AIE Regulation and in Minch.
80. Finally, the decision in CEI/12/0008 states that the intention of an applicant in making a request is not a relevant consideration. I do not believe that this is correct. What is at issue here is whether the AIE regime as implemented by Coillte affects or is likely to affect the environment. While the requestor does not have to state their interest in making the request, that does not mean that the framework in which a request is made cannot be used to consider whether a measure has an impact on the environment.
81. But even if I am wrong in this, I simply do not accept that the AIE regime has environmental protection only as an indirect or aspirational aim. The very purpose of the regime is environmental protection and I have set this out above. The signatory States to the Convention, and the EU legislature in drafting the Directive, put environmental protection at the heart of the access regime. It is the very purpose of the Aarhus Convention, and access to information is one of three limbs that allows Member States to achieve that aim. To claim that this is indirect or aspirational is wrong as a matter of law.
Whether the information is ‘on’ the measure or activity
82. As “any information … on” a measure or activity affecting or likely to affect the environment is prima facie environmental information, the information at issue does not, in itself, have to affect or be likely to affect the environment in order to constitute information “on” such a measure (Redmond at paragraphs 57 and 59). As the High Court outlined in its decision in the ESB No. 1 case, relying on the English Court of Appeal decision in Henney, that information is “on” a measure if it is about, relates to or concerns the measure (see paragraph 41 of ESB No. 1, referring to paragraph 37 in Henney). The question as to whether information is “on” a measure is fact and context specific. This question is to be considered by reference to the Directive and Aarhus Convention. According to Henney, the recitals to both the Directive and Convention “give an indication of how the very broad language of the text of the provisions may have to be assessed and provide a framework for determining the question of whether in a particular case information can properly be described as "on" a given measure” (at paragraph 48).
83. Importantly, while Henney uses the terms “critical”, “fundamental” or “integral”, it did so to describe the relationship between the communications and data component of the smart meter plan and the overall smart meter plan. There was a dispute in that case between the parties as to what was the correct measure. The Court did not use these terms to say that for information to be on a measure it had to be critical, fundamental or integral to that measure.
84. I note in its submissions that Coillte refers to the purposive test as articulated in Henney. The Court of Appeal in Redmond noted that the Court of Appeal of England and Wales in Henney suggests that, in determining whether information is “on” the relevant measure or activity, it may be relevant to consider the purpose of the information such as why it was produced, how important it is to that purpose, how it is to be used, and whether access to it advances the purposes of the Aarhus Convention and AIE Directive (see Redmond at paragraph 99). Information that does not advance the purposes of the Aarhus Convention and AIE Directive may not be “on” the relevant measure or activity (Redmond at paragraph 99). The test set out in Henney was also explicitly endorsed by the High Court in the RTÉ case (see paragraph 52) and is also referenced in the recent ESB No. 2 judgment.
85. The purpose and outcome of any engagement on Coillte’s part of external lawyers in the AIE process is done to ensure the proper implementation of the AIE Regulations and thereby facilitating appropriate or ‘correct’ access to environmental information. I consider that such intention clearly serves to advance the purpose of the AIE Regulations, and consequently the Directive and the Aarhus Convention.
86. Coillte has argued that the engagement of external legal services can be necessary to correctly apply the legislation. This is clearly more than an incidental element of the AIE process. I would consider this in fact to be central to the process, in particular in situations where Coillte considers it necessary to expend resources in this way. In this regard, I note that Coillte are subject to the principles and provisions of corporate governance set out in the Code of Practice for the Governance of State Bodies. This Code mandates that state bodies should pursue the most cost effective course of action in relation to legal disputes. Therefore, I consider it unlikely that Coillte would engage external legal assistance if the matter at issue wasn’t considered of significance to the correct application of the AIE Regulations.
87. Coillte’s submissions to my Office did not make reference to the requestor’s stated reasoning for seeking the information in question, i.e. to inform a submission to the ACCC on the prohibitive cost of appeals to this Office.
88. The ACCC was established under Article 15 of the Aarhus Convention. The Committee serves as a compliance mechanism whereby Parties to the Convention or members of the public may, for example, bring a concern regarding the implementation of the Convention to the Committee for consideration. Members of the public and NGOs bring access to justice issues before the Compliance Committee in situations where they consider that the relevant domestic legal framework fails to comply with any of the requirements of Article 9 of the Convention, either generally, in the systemic sense, and / or in relation to a specific case.
89. The appellant contends that the issue of costs and financial barriers to the exercise of environmental rights is an important aspect of the Aarhus Convention. I note that Article 9 of the Convention in particular addresses a wide range of important practical matters concerning access to justice, including that the costs involved in engaging and participating in the review procedure must be affordable (‘not prohibitively expensive’).
90. I consider that the type of information sought by the appellant may indeed be relevant to the Committee, for example, if it is alleged that arrangements for access to justice are inaccessible due to prohibitive costs. Consideration of wider operability of the AIE regime, including possible complexity of the legislation may also be warranted, in particular if it can be shown that public authorities such as Coillte regularly consider it necessary to engage external lawyers in order to correctly apply the legislation (other than on an exceptional basis).
91. In addition, I consider that the legal representation and costs information requested in parts (2), (3), (4) and (5) of the AIE request is information ‘on’ the measure because it is information that gives an insight into Coillte’s approach to its obligations. It also influences the approach that a requester must take if it is to successfully obtain environmental information from Coillte or engage effectively with the OCEI on appeal, in turn impacting on the ability of some requesters to successfully obtain information. For example, if the information provided by Coillte suggests that legal advice or assistance is sought in relation to many of the AIE requests made to Coillte, a requester could conclude that their requests ought to be framed in a manner that fully addresses any legal concerns that might arise. Similarly, if the information suggests that legal advice or assistance is sought in relation to many of the appeals to this office, an appellant could conclude that they are likely to have to engage with legal points in any appeal to my Office if they are to participate effectively in the appeal process. This is notwithstanding the inquisitorial role of my Office.
92. I am therefore satisfied that information concerning the costs of engaging external legal services for processing AIE requests, appeals and litigation is information that is on the implementation of the AIE Regulations by Coillte and is not at such a remove from the AIE process to render it too remote. As such, I am satisfied that all of the information requested is information “on” a “measure or activity” within the meaning of article 3(1)(c) of the Regulations and should be considered “environmental information” within the scope of the AIE Regulations. It is clearly about the measure, it relates to it and concerns it. The appellant has set out a clear process that he is engaging in and how the information will assist him in that process. It is in this framework that I consider that the information is on the AIE regime. The appellant will be better informed by access to this information and better able to contribute to an environmental process. Release of the information advances the purposes of the Aarhus Convention and the Directive. On that basis, I am remitting the matter to Coillte for consideration of release of the information requested in accordance with the provisions of the AIE Regulations.
93. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul Coillte’s internal review decision in this case and I direct it to provide the appellant with a new internal review decision in respect of the request.
94. 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