Cinneadh
Mr X and Forestry Appeals Committee
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-148307-L0W1D7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-148307-L0W1D7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the FAC was justified in its refusal of information under articles 9(2)(a) and 9(2)(b) of the AIE Regulations
19 December 2024
1. On 17 January 2024, the appellant submitted an AIE request to the FAC, as follows:
“I wish to request under the Access to Information on the Environment Regulations, in electronic format;
Information related to any instructions / guidance / clarification given to administrative staff and Agriculture Appeals Officers working on behalf of the FAC, on the acceptance / refusal of appeals against forestry licences.
This includes general information and information specific to individual licences…”
2. On 7 February 2024, the FAC wrote to the appellant, advising as follows:
“Article 7(8) of the AIE Regulations provides that “Where a request is made by the applicant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request, invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request.” Article 9(2)(b) provides that a public authority may refuse a request where the request remains formulated in too general a manner.
As the decision maker assigned to your request, it is my opinion that your request, as currently worded, is formulated in too general a manner. In accordance with Article 7(8) of the AIE Regulations I would like to invite you to make a more specific request.
I wish to offer further assistance to you in making a valid request and I suggest that you telephone me at 057 8631900 or email me at forestry@agriappeals.gov.ie to discuss this matter further.”
3. On 8 February 2024, the appellant responded to the above communication as follows:
“Can you please clarify what it is about my request that leads you to consider that it is formulated in too general a manner.
It has a clearly focussed subject.
If it is of any help the timeframe can be restricted to the period after the Forestry (Miscellaneous Provisions) Act came in to force.”
4. On 14 February 2024, the appellant sought a response to the above communication and also, on 19 February 2024, sought an internal review on the basis that no reply had been received.
5. The FAC responded to the appellant on 23 February 2024, recapping the contents of its response dated 7 February 2024 as outlined above, and noting that in response to same, the appellant had changed his request to restrict to the period after the Forestry (Miscellaneous Provisions) Act came into force. The FAC further advised the appellant as follows:
“Under Article 9(2)(a) of the AIE Regulations, where a request is manifestly unreasonable having regard to the volume or range of information sought, a public authority may refuse to make environmental information available.
As the decision maker assigned to your application, it is my opinion that your request, as currently worded, appears to me as manifestly unreasonable having regard to the volume and range of information sought, your request as currently phrased would, in my opinion, place an unreasonable demand on the Forestry Appeals Committee administration resources and would disrupt its ability to appeals perform its core functions. During the time frame you have sought information for there were 555 received. Each of the appeals could have multiple documents that would fall under what you have requested.
I invite you to make a more specific request. If you wish to discuss this further, I can be contacted at 0578631900 or by email forestry@agriappeals.gov.ie.”
6. An internal review outcome was not provided to the appellant within the required statutory timeframe, and, on 22 March 2024, the appellant submitted an appeal to this Office on the basis of a deemed refusal by the FAC.
7. On 2 April 2024, this Office wrote to the FAC requesting that it provide the appellant with a letter specifying its position in relation to the appellant’s internal review request and outlining reasons for this position, as soon as possible but no later than 16 April 2024.
8. The FAC issued its position to the appellant on 16 April 2024, which stated as follows:
“The refined request which limited the information sought from the period after the Forestry (Miscellaneous Provisions) Act came into force is still in my opinion manifestly unreasonable and remains formulated in too general a manner.
The refined request which limited the information sought from the period after the Forestry (Miscellaneous Provisions) Act came into force is still in my opinion manifestly unreasonable and formulated in too general a manner. Article 9(2) of the Regulations allows a public authority to refuse to make environmental information available where the request (a) is manifestly unreasonable having regard to the volume or range of information sought, or (b) remains formulated in too general a manner. As per my email to you on the 23 February 2024 it is my opinion that the request, as currently worded, the request appears to me as manifestly unreasonable and remains formulated in too general a manner. My decision is there[fore] to refuse access to this request per Article 9(2) a and b.
The refined request you made on the 8 February 2024 spans almost four years, October 2020 from when the Forestry (Miscellaneous Provisions) Act came into force. During the time frame there were 555 appeals received. Each of the appeals could have multiple documents that would fall under what you have requested. I estimate that it would take four months to identify every record and sift through thousands of records to decide what was relevant to this request because what you are requesting is so vague. In my correspondence of the 23 February, I did invite you again to refine this request further.
Having regard to the volume and range of information sought, your request as currently phrased would, in my opinion, place an unreasonable demand on the Forestry Appeals Committee administration resources and would disrupt its ability to perform its core functions.”
9. The appellant submitted an appeal to this Office on 17 April 2024, on the basis that he was not satisfied with the effective position of the FAC.
10. I am directed by the Commissioner to conduct a review of this appeal. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the correspondence between the FAC and the appellant as outlined above and I have considered the submissions made by the appellant and by the FAC to this Office on the matter. 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’).
11. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
12. The appellant made submission to this Office dated 24 May 2024, which can be summarised as follows:
i. The appellant submitted that forestry licence appeals must be processed by the administrative staff of the FAC before they are accepted or rejected. He submitted that such appeals are also pre-vetted by two members of the Agriculture Appeals Office, whom he stated are employees of the Minister whose decision is subject to challenge. He also submitted that, “information acquired under AIE indicates that the FAC invalidates a significant proportion of submitted appeals, including in controversial circumstances”.
ii. The appellant submitted that his request “is to elicit the instruction / clarification / guidance given to the above, both in general terms and in respect of specific cases”. He submitted that the FAC has not indicated whether it has written procedures in place for the processing of submitted forestry licence appeals.
iii. The appellant submitted that, in his view, articles 9(2)(a) and 9(2)(b) are mutually exclusive. He submitted: “To declare a request to be manifestly unreasonable a public authority must understand the request and what it entails. If the public authority does not adequately understand what information is being sought they are not in a position to determine the volume and complexity of the request. It is one or the other (or neither).”
iv. The appellant noted the following part of the FAC’s effective position: “The refined request you made on the 8 February 2024 spans almost four years, October 2020 from when the Forestry (Miscellaneous Provisions) Act came into force. During the time frame there were 555 appeals received.” In this regard, the appellant submitted that less than 3 years and 4 months is not almost 4 years.
v. The appellant noted the following part of the FAC’s effective position: “Each of the appeals could have multiple documents that would fall under what you have requested. I estimate that it would take four months to identify every record and sift through thousands of records to decide what was relevant to this request because what you are requesting is so vague. In my correspondence of the 23 February, I did invite you again to refine this request further.” In this regard, the appellant submitted that he, as a requester, does not know how the FAC would record the information sought relevant to specific requests but he submitted that he would imagine that it would be in terms of internal correspondence between the Committee (or Agriculture Appeals Office) and the relevant members of staff of the Agriculture Appeals Office. The appellant submitted that it should be possible to carry out a selective search for this information.
vi. The appellant submitted that the FAC has not indicated that it has tried any search mechanisms to identify information falling within the scope of his request. He submitted that every single record of the FAC for each case would not need to be examined – only information relevant to the request needs to be identified. The appellant considered the four-month estimate to be a “gross exaggeration”. The appellant submitted that this request includes general guidance given to staff in processing appeals and he argued that he does not understand why the FAC is of the view that each appeal would need to be examined to address this part of his request.
vii. The appellant noted the following part of the FAC’s effective position: “Having regard to the volume and range of information sought, your request as currently phrased would, in my opinion, place an unreasonable demand on the Forestry Appeals Committee administration resources and would disrupt its ability to perform its core functions”. In this regard, the appellant submitted that complying with its statutory duties is one of the core functions of any public authority.
viii. The appellant submitted that the FAC had failed to apply article 10 of the AIE Regulations to its decision. He argued that the FAC had failed to demonstrate that either exception applies and that it had not processed his request in accordance with the AIE Regulations.
13. In a submission to this Office dated 7 June 2024, the FAC stated that its position was “still the same” and it went on to reiterate its effective position as notified to the appellant on 16 April 2024.
14. The FAC submitted that its decision has been made having regard to article 10 of the AIE Regulations and does not relate to emissions. It further submitted:
“I have considered the public interest in regards to this request. I have decided that the public interest weighs in favour of refusing the information requested on this occasion due to the amount of time that would spent trying to put this information together, much of which may not even be environmental information. This refusal is also made on the basis of article 9(2)(a) and (b) of the AIE Regulations.”
15. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s decision and to affirm, annul or vary it. As such, this review is concerned with whether the FAC was justified in its refusal of the information sought under articles 9(2)(a) and 9(2)(b) of the AIE Regulations.
16. Article 9(2)(a) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. This provision seeks to transpose article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and, in turn, is based on part of article 4(3)(b) of the Aarhus Convention.
17. Article 9(2)(b) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request remains formulated in too general a manner, taking into account article 7(8). Article 9(2)(b) seeks to transpose article 4(1)(c) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is formulated in too general a manner, taking into account article 3(3), and, in turn, is based on part of article 4(3)(b) of the Aarhus Convention.
18. Articles 9(2)(a) and 9(2)(b) must be read alongside article 10 of the AIE Regulations, which provides for certain limitations on the ability of a public authority to refuse environmental information. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal and article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 7(4)(c) of the Regulations requires a public authority to specify the reasons for refusal of a request.
19. The Minister’s Guidance at paragraph 12.8 states the following:
“Article 9[(2) …] clarifies that a public authority may refuse to make information available if the request is considered unreasonable due to the range of material sought, if the request is too general or if the material requested is not yet completed. Public authorities are requested to invoke these grounds for refusal sparingly, and to assist the applicant (to reformulate a request, for example) as appropriate.”
20. In the decision provided to the appellant, the FAC referred to the refined request as “manifestly unreasonable and remains formulated in too general a manner” and contended that it would “take [an estimated] four months to identify every record and sift through thousands of records to decide what was relevant to [the] request because what [the appellant is] requesting is so vague”. The decision maker also stated that this would “in [their] opinion, place an unreasonable demand on the Forestry Appeals Committee administration resources and would disrupt its ability to perform its core functions”.
21. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, I must examine whether responding to the request would involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. In light of the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission, at paragraphs 101-115, I consider that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request.
22. The FAC has provided no detailed or specific reasoning for its reliance on article 9(2)(a) of the AIE Regulations. Despite estimating that examining 555 appeal files in order to extract the information sought by the appellant would take four months, the FAC did not explain how it reached this conclusion or why this would impose an unreasonable level of work on the FAC in processing the request. As set out above, the burden in on the public authority to demonstrate the unreasonableness of the task entailed by the request, and this requires the public authority to provide a satisfactory level of detail regarding the time it would take to process the request. This detail should include how many staff members would be required, what steps would be involved in answering the request and how much time would be spent on each of these tasks.
23. On the basis of the above, it is my view is that the threshold for finding the request to be manifestly unreasonable has not been met in this appeal. Accordingly, the FAC has not established that article 9(2)(a) of the AIE Regulations applies to this request.
24. Article 9(2)(b) of the AIE Regulations and article 4(1)(c) of the AIE Directive respectively require that article 7(8) of the AIE Regulations and article 3(3) of the AIE Directive be taken into account. Article 7(8) of the AIE Regulations provides that where a request is made by the applicant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request, invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request. Article 3(3) of the AIE Directive provides that if a request is formulated in too general a manner, the public authority shall as soon as possible, and at the latest within one month, ask the applicant to specify the request and shall assist the applicant in doing so e.g. by providing information on the use of public registers
25. As noted above, the FAC did ask the appellant to narrow his request. However, it did not offer any assistance or guidance as to how the appellant should refine the request in order to avoid the request being refused. Notwithstanding this, the appellant did narrow the scope of his request to a specific timeframe. I find it difficult to understand how the appellant could have successfully narrowed the actual subject matter or description of the environmental information further, without any specific guidance from the FAC.
26. Accordingly, I find therefore, that the FAC was also not justified in its decision to refuse the appellant’s request under article 9(2)(b) of the AIE Regulations.
27. Having found neither article 9(2)(a) nor article 9(2)(b) to apply, it is not necessary for me to consider the public interest balancing exercise provided for at article 10(3) of the AIE Regulations. As detailed above, it can be noted that the FAC’s submissions to this Office referred to the public interest balancing test as required by article 10(3) and 10(4) of the AIE Regulations. However, its reference to same lacked specific detail in relation to the information at issue, and in any event it was premature as the FAC has failed to justify that the requirements of articles 9(2)(a) and/or 9(2)(b) were met in this case in the first instance.
28. In addition, article 10(5) of the AIE Regulations stipulates that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information. The FAC does not appear to have given any consideration as to whether it holds any information which may be separated from information which article 9(2)(a) and/or 9(2)(b) relates (in the event that either exception is justified).
29. I note also that the appellant’s request sought access to “general information and information specific to individual licences”. However, the FAC’s approach focuses on an interrogation of records associated with each and every appeal and there is no indication that it considered whether there exists general information, for example, in internal guidance documents, staff training materials or perhaps legal advice on the subject matter. As noted by the appellant in his submissions to this Office, the FAC has not indicated whether it has written procedures in place for the processing of submitted forestry licence appeals.
30. Lastly, I note in its brief submissions to this Office, wherein the FAC commented that “much of [the information sought by the appellant] may not even be environmental information”. It did not provide any reasons to support this view and in this regard, I would remind the FAC that whether information is “environmental information” is one of the threshold issues to be considered when processing an AIE request. Further, the duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). I would also encourage the FAC to take account of the recent decision of this Office in OCE-144739-W3Z9K6 , wherein it was determined that all requests for legal advice made by the FAC to address matters raised in appeals was “on” a measure, being the determination of appeals on forestry licensing applications, within the meaning of paragraph 3(1) of the AIE Regulations.
31. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the FAC’s decision and direct It to undertake a fresh internal review decision-making process in respect of the appellant’s request, having regard to the comments above.
32. A party to the appeal or any other person affected by this decision may appeal to the High
Court on a point of law from the decision. Such an appeal must be initiated not later than two
months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information