Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-154871-W6C0R7; OCE-155027-V7Q1W7; OCE-155324-C0N9K0; OCE-156584-L0Z7K4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
8 February 2025
1. This decision concerns four appeals to this Office against the Department’s decisions on four requests submitted by the appellant under the AIE Regulations.
2. Request 1 (Appellant Reference: TFL00567220 Monitoring Records; Department Reference: AIE 24 750; OCEI Reference: OCE-154871-W6C0R7)
• On 5 November 2024, the appellant submitted the following request to the Department:
With reference to the Appropriate Assessment Determination mitigation N* of licence TFL00567220, I wish to receive copies of all records of ground condition / rainfall monitoring and of any resulting operational adjustments and postponements created by the licensee to comply with the mitigation and kept by the licensee for possible inspection by DAFM. If DAFM does not hold this information already I request that it is sourced from the licensee. *" N. Relevant machine operations must cease during and after periods of rainfall heavy enough to result in the loss of nutrients and/or the mobilisation of sediment, fine organic matter and debris into receiving waters. Ground conditions must be monitored at all times, and records of such monitoring and of any resulting operational adjustments and postponements must be kept for possible inspection. Monitor the long-range forecast and prioritise work in more vulnerable areas as weather and site conditions allow. For information, forecast details for the nearest meteorological station can be found on the Met Éireann website www.met.ie. Reason: In the interest of the protection of water quality and to ensure the protection of the European site(s) during harvesting and restocking operations."
• On 28 November 2024, the Department issued its decision. The Department stated that it was refusing the appellant’s request under article 7(5) of the AIE Regulations on the basis that the information sought is not held by or for it. The Department explained that following the assignment of the AIE request it had contacted the subject matter expert. The Department also stated “[i]n this case, the applicants are not a public authority but are private individuals. Section 4(2) specifies that the AIE Regulations apply to environmental information held by, or on behalf of, a public authority only, so does not apply to private individuals” and referred to article 8(a)(i) of the AIE Regulations.
• On 29 November 2024, the appellant sought an internal review of the Department’s decision. He contended that the Department’s contact with the subject matter expert did not demonstrate that all reasonable steps had been taken to identify the requested information. He stated “[the subject matter expert] is aware that he has the authority to source the requested information from the licensee. There is no evidence that he has done so. Therefore, all reasonable steps cannot be considered to have been taken.”
• On 17 December 2024, the Department issued its internal review decision, wherein it stated that it was affirming its original decision. The Department reiterated its comment “the applicants are not a public authority but are private individuals. Section 4(2) specifies that the AIE Regulations apply to environmental information held by, or on behalf of, a public authority only, so does not apply to private individuals.” It also stated “[a] complete review was conducted of the original request emails sent to the subject matter expert…” The Department did not refer to article 8(a)(i) of the AIE Regulations.
• On 23 December 2024, the appellant submitted an appeal to this Office.
3. Request 2 (Appellant Reference: TFL00456120 Monitoring Records; Department Reference: AIE 24 784; OCEI Reference: OCE-155027-V7Q1W7)
• On 22 November 2024, the appellant submitted the following request to the Department:
“1) With reference to the Appropriate Assessment Determination mitigation* of licence TFL00456120, I wish to receive copies of all monitoring records held by or for DAFM this includes records of ground condition / rainfall monitoring and of any resulting operational adjustments and postponements created by the licensee to comply with the mitigation and kept by the licensee for possible inspection by DAFM. If DAFM does not hold this information already I request that it is sourced from the licensee since monitoring records which are maintained by the licensee for possible inspection are held for DAFM under the AIE Regulations and it is within the power of DAFM to inspect these records and to take copies for the purpose of answering this request. *In relation to Freshwater Pearl Mussel (FPM), the following mitigation is required presented in the form of conditions to be attached to any licence issued: A Relevant operations must cease during and after periods of rainfall sufficiently heavy to result in the loss of nutrients and/or the mobilisation of sediment, fine organic matter and debris into receiving waters. Ground conditions must be monitored during rainfall, and records of such monitoring and of any resulting operational adjustments and postponements must be kept for possible inspection. For information, forecast details for the nearest meteorological station can be found on the Met Éireann website www.met.ie Reason: In the interest of the protection of water quality and to ensure the protection of the European site(s) during harvesting and restocking operations.
2) Information on the dates that felling and associated works have taken place under this licence.”
• On 5 December 2024, the Department issued its decision. The Department stated that it was part-granting his request. In respect of part 1 it refused access under article 7(5) of the AIE Regulations on the basis that no records are held by or on behalf of the Department. The Department also stated “[i]n this case, the applicant is not public authority but is a private individual, article 4(2) specifies that the AIE Regulations apply to environmental information held by, or on behalf of, a public authority only, so does not apply to information held by private individuals on their own behalf.” In respect of part 2, the Department stated that one record had been located and it was being released in full. Regarding the searches carried out, the Department stated that digital database searches were undertaken of; Commencement Notice folder in eDocs, Felling Email Inbox using the search function for the TFL number, shared drive using the TFL number, IFORIS contacts, IFORIS notes.
• On 9 December 2024, the appellant sought an internal review of the Department’s decision regarding part 1 of his request. In doing so, he stated “the information requested is not held by a private individual on their own behalf. The information is required to be produced and maintained on behalf of the Department in order to comply with the conditions of a licence. The licensee has no obligation to create and maintain this information save that of complying with the conditions of the licence.”
• On 3 January 2025, the Department issued its internal review decision. The Department affirmed its decision to refuse access to part 1 under article 7(5) of the AIE Regulations. It stated “[t]he records you seek are kept by the licensee for possible inspection, therefore are not kept for or on behalf of the Department. I concur with the original decisions maker’s decision in that: [i]n this case, the applicant is not public authority but is a private individual, article 4(2) specifies that the AIE Regulations apply to environmental information held by, or on behalf of, a public authority only, so does not apply to information held by private individuals on their own behalf.” The Department again referred to the searches that were conducted at the time of the original decision and stated that they were reviewed on internal review.
• On 6 January 2025, the appellant submitted an appeal to this Office.
4. Request 3 (Appellant Reference: TFL00567220 Monitoring Records; Department Reference: AIE request 24 750; OCEI Reference: OCE-155324-C0N9K0)
• On 5 November 2024, the appellant submitted the following request to the Department: With reference to the Appropriate Assessment Determination mitigation N* of licence TFL00567220, I wish to receive copies of all records of ground condition / rainfall monitoring and of any resulting operational adjustments and postponements created by the licensee to comply with the mitigation and kept by the licensee for possible inspection by DAFM. If DAFM does not hold this information already I request that it is sourced from the licensee. *" N. Relevant machine operations must cease during and after periods of rainfall heavy enough to result in the loss of nutrients and/or the mobilisation of sediment, fine organic matter and debris into receiving waters. Ground conditions must be monitored at all times, and records of such monitoring and of any resulting operational adjustments and postponements must be kept for possible inspection. Monitor the long-range forecast and prioritise work in more vulnerable areas as weather and site conditions allow. For information, forecast details for the nearest meteorological station can be found on the Met Éireann website www.met.ie. Reason: In the interest of the protection of water quality and to ensure the protection of the European site(s) during harvesting and restocking operations."
• On 28 November 2024, the Department issued its original decision. The Department stated that it was refusing the appellant’s request under article 7(5) of the AIE Regulations on the basis that no records are held by or on behalf of the Department. The Department explained that following the assignment of the AIE request it had contacted the subject matter expert. The Department also stated “[i]n this case, the applicants are not a public authority but are private individuals. Section 4(2) specifies that the AIE Regulations apply to environmental information held by, or on behalf of, a public authority only, so does not apply to private individuals” and referred to article 8(a)(i) of the AIE Regulations.
• On 29 November 2024, the appellant sought an internal review of the Department’s decision. He contended that the Department’s contact with the subject matter expert did not demonstrate that all reasonable steps had been taken to identify the requested information. He stated “[the subject matter expert] is aware that he has the authority to source the requested information from the licensee. There is no evidence that he has done so. Therefore, all reasonable steps cannot be considered to have been taken.”
• On 17 December 2024, the Department issued its internal review decision, wherein it stated that it was affirming its original decision. The Department reiterated its comment “the applicants are not a public authority but are private individuals. Section 4(2) specifies that the AIE Regulations apply to environmental information held by, or on behalf of, a public authority only, so does not apply to private individuals.” It also stated “[a] complete review was conducted of the original request emails sent to the subject matter expert…” The Department did not refer to article 8(a)(i) of the AIE Regulations.
• On 14 January 2025, the appellant submitted an appeal to this Office. He stated that the appeal Request 3 could be considered with Requests 1 and 2.
5. Request 4 (Appellant Reference: TFL00558920 Monitoring Records; Department Reference: AIE request 24 763; OCEI Reference: OCE-156584-L0Z7K4)
• On 7 November 2024, the appellant submitted the following request to the Department:
1) With reference to the Appropriate Assessment Determination mitigation* of licence TFL00558920, I wish to receive copies of all monitoring records held by or for DAFM this includes records of ground condition / rainfall monitoring and of any resulting operational adjustments and postponements created by the licensee to comply with the mitigation and kept by the licensee for possible inspection by DAFM. If DAFM does not hold this information already I request that it is sourced from the licensee since monitoring records which are maintained by the licensee for possible inspection are held for DAFM under the AIE Regulations and it is within the power of DAFM to inspect these records and to take copies for the purpose of answering this request. *" Relevant operations must cease during and after periods of rainfall sufficiently heavy to result in the loss of nutrients and/or the mobilisation of sediment, fine organic matter and debris into receiving waters. Ground conditions must be monitored during rainfall, and records of such monitoring and of any resulting operational adjustments and postponements must be kept for possible inspection. For information, forecast details for the nearest meteorological station can be found on the Met Éireann website www.met.ie"
2) Information on the dates that felling and associated works have taken place under this licence.
• On 29 November 2024, the Department issued its decision. The Department stated that it was refusing the appellant’s request under article 7(5) of the AIE Regulations on the basis that the information sought is not held by or for it. The Department explained that following the assignment of the AIE request it had contacted the subject matter expert. The Department also stated “[i]n this case, the applicant is not [a] public authority but is a private individual. Section 4(2) specifies that the AIE Regulations apply to environmental information held by, or on behalf of, a public authority only, so does not apply to information held by private individuals on their own behalf.” In respect of part 2 of the appellant’s request it stated “we do not have any records in relation to the information requested.”
• On 3 January 2025, the appellant sought an internal review of the Department’s decision. He stated “[t]he Subject Matter Expert has the authority to source the information from the licensee. The information is created as a condition of the licence and must be provided to DAFM on request.”
• On 28 January 2025, the Department issued its internal review decision, wherein it stated that it was affirming its original decision. The Department reiterated its comment “[s]ection 4(2) specifies that the AIE Regulations apply to environmental information held by, or on behalf of, a public authority only, so does not apply to information held by private individuals on their own behalf.”
• On 17 February 2025, the appellant submitted an appeal to this Office.
6. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the Department and the appellant, as outlined above, and to correspondence between this Office and both the Department and the appellant on the matters involved in these requests. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the Aarhus Guide)
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, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, this Office will require the public authority to make available environmental information to the appellant.
9. A review by this Office is generally limited by the wording of an appellant’s internal review request and, while it can be narrowed further, it cannot be expanded. Therefore, notwithstanding comments made in further submissions made by the appellant in Requests 1 and 3, having regard to the wording of the appellant’s internal review requests in each of these cases and his initial statement of appeal / submissions to this Office, I am satisfied that the scope of this review is solely concerned with whether the Department was justified in refusing access to monitoring information (and, regarding Request 4 dates that felling and associated works took place under the licence) that may be in the possession of licensees under article 7(5) of the AIE Regulations on the basis that any relevant information is not held for the Department for the purposes of the AIE Regulations.
10. In the circumstances of these appeals, I have decided that a composite decision dealing with the appeals together is appropriate. I do so because the four requests, although dealt with separately by the Department, were submitted by the same requester to the same public authority, have similar subject matter, and involve the same provision of the AIE Regulations.
11. The appellant’s original requests in respect of Request 1 and 3 were amended versions of requests sent the day prior. I note that the Department’s original decisions appear to re-state the earlier wording rather than the amended wording. However, given the similarities between the different versions and the matter in question in these appeals, I do not consider this to be an issue.
Positions of the Parties
The Department’s Position
12. The general thrust of the Department’s position is that any relevant monitoring information (and dates of works) in the possession of licensees is not held for the Department and, accordingly, it was not required to ask the licensees to carry out any searches when processing the appellant’s request.
13. As noted, in each of its decisions the Department made a comment to the effect that the applicants concerned were not public authorities but private individuals and submitted, in its internal review decision on Requests 1 and 3, that “Section 4(2) specifies that the AIE Regulations apply to environmental information held by, or on behalf of, a public authority only, so does not apply to private individuals” and on Request 2 (and similarly on Request 4) that “article 4(2) specifies that the AIE Regulations apply to environmental information held by, or on behalf of, a public authority only, so does not apply to information held by private individuals on their own behalf.”
The Appellant’s Position
14. The general thrust of the appellant’s position is that any relevant monitoring information (and dates of works) in the possession of licensees is held for the Department and, accordingly, the Department should have asked the licensees to carry out searches when processing his requests.
15. I have summarised below the appellant’s submissions to this Office regarding Request 1:
• The appellant submitted that the Department’s decision failed to address the fact that the information could be considered to be held “for” the Department by the licensee. The appellant contended that the Department did not provide any argument as to why the information, which it required to be generated and has power to acquire, is not held on behalf of, or “for”, the Department by the licensee. Regarding Requests 3 and 4, he also stated “the fact that the records are held by the licensee for possible future inspections does not preclude them from being held “for” the Department. Records can be held “by” and “for” different parties simultaneously.”
• The appellant submitted that it is critical that there is a purposeful interpretation of the AIE Directive, which examines why the requested information exists and why it is held by the licensee.
• The appellant stated that the Department is the competent authority for forestry licensing and this includes an enforcement role. The appellant contended that if requested by the Department, the licensee is legally obliged to release the information The appellant further contended “the information sought cannot be considered to be solely for the licensee’s own purposes. The licensee is under no compulsion of their own to create and maintain this information; it is required by the Department. The information is created and maintained to enable the Department to monitor the compliance of the activity with the conditions of the licence and thereby fulfil its statutory function in respect of monitoring and enforcement in respect of the Habitats Directive.”
• The appellant further submitted “[f]rom the manner in which the Department has addressed this and similar requests it appears that it does not want to consider taking responsibility for this information. This is not consistent with the Department’s role in terms of licence enforcement and overall monitoring of compliance with European Law.” The appellant also made the following comments:
o “Section 27(2) of the Birds and Natural Habitats Regulations states; ‘Any public authority having or exercising functions, including consent functions, which may have implications for or effects on nature conservation shall exercise those functions in compliance with and, as appropriate, so as to secure compliance with, the requirements of the Habitats Directive and the Birds Directive and these Regulations.’ The Department requires the creation of the records and the power to access them in order to meet its duty to secure compliance with the Habitats Directive, the Birds Directive and the Birds and Natural Habitats Regulations. [In his submissions on Requests 3 and 4, he also stated “[t]his relates to Article 6(2) of the Birds and Natural Habitats Regulations; ‘2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.’] The records exist to [demonstrate and] secure compliance with the law and the Department was within its rights to source the information that was being held by the licensee in order to ensure that it could secure compliance with its duties. On this basis monitoring records to be created and maintained by the licensee for possible inspection should be considered to be held for [the Department] under the AIE Regulations and it was within the power of [the Department] to inspect these records and to take copies for the purpose of answering this request.”
o Regarding Request 1 specifically, it stated “Licence TFL00567220 was revoked on 15-4-24 due to a breach of conditions of the licence. This emphasises the importance of the Department’s capacity to access the records. If the licence is revoked the condition which requires maintenance of the records is revoked and the Department, using its own position, can no longer access records that it required to be created as the information is held by the licensee who is no longer under any obligation to maintain the records. If the records are held for the Department then the records are still within the reach of the Department. If, as the Department claim, the records are the property of the licensee then the licensee would now be at liberty to destroy the records. This at a time when they are most likely to be needed as evidence. A common sense or purposeful reading of the situation is that the requested information is potential evidence. To create a situation where the Department potentially puts evidence outside its own reach lacks logic and more importantly lacks compliance with the duty to secure compliance with European Law.”
o “[The Department] has an express power under the Forestry Act (2014) to source the information concerned…Acceptance of the Department’s decision would create an absurd situation whereby monitoring data held by a licensee cannot be copied for the purpose of the AIE Regulations when there is an express term in the licence that allows the public authority to take and retain a copy.”
o “Under Section 24 (1) of the Forestry Act (2014) an authorised officer of the Minister can (f) inspect and take copies of or extracts from any such records or any electronic information system at that place, including in the case of information in a nonlegible form, copies of or extracts from such information in a permanent legible form or require that such copies be provided; (g) require a person at that place by whom or on whose behalf a computer is or has been used to produce or store records or any person having control of, or otherwise concerned with the operation of the computer, to afford the authorised officer access thereto and all reasonable assistance as the authorised officer may require; (h) remove from that place and retain such records (including documents stored in a non-legible form) and copies taken and detain the records for such period as the authorised officer reasonably considers to be necessary for further examination or until the conclusion of any legal proceedings; (i) require the person in charge to give the authorised officer such information as the authorised officer may reasonably require for the purposes of any search, examination, investigation, inspection or inquiry under those provisions, including the name and address of the owner or manager of the lands; (l) require production of any licence, approval or other document pursuant to which forestry activities are being, or have been carried out.”
o “Once copies of records are in the possession of the Department they are unequivocally held by the Department. The matter at issue – whether monitoring records are held for the Department - was addressed by the Commissioner in case 148308.” [The decision in OCE-148308-J1V2C8, OCE-148335-C1Y3P0, OCE-148824-T9S9R3, OCE-151808-M7B5Y2 Mr X and the Department of Agriculture, Food and the Marine is available here]
o “I disagree with the assessment of the Commissioner in that case. I did not challenge the decision as the licence in that case was issued to Coillte and I had an alternative avenue to seek the requested information as Coillte is a Public Authority for the purposes of the AIE Regulations. In this case the licensee is a private individual and therefore not subject to the AIE Regulations. If the information is not accessible through DAFM it is outside of the scrutiny of the public.”
• The appellant went on to address what he considered to be the key flaws in decision OCE-148308-J1V2C8, OCE-148335-C1Y3P0, OCE-148824-T9S9R3, OCE-151808-M7B5Y2, as follows:
o The appellant referred to paragraph 39 of the decision “[i]nstead, the Department’s ability to access the information arises from its function as the forest licensing authority. The Minister or authorised officers of the Department are entitled to access the information for the purpose of assessing compliance with the licence conditions / carrying out enforcement functions under the relevant forestry legislation. Outside of this role, the Department has no role in managing or overseeing this information.” The appellant submitted “the Department’s ability to access the information arises from its function as the competent authority for forestry, not merely as the forest licensing authority. What other role does the Commissioner consider would be necessary that would warrant the release of the information?”
o The appellant submitted “[t]he Commissioner makes no reference to the fact the licensee has been required to create the record in the first instance. The Department requires the information to be maintained. I consider this to be a role in the management of the information. The Department has created a requirement for the retention of the information. Retention is a form of management.”
o The appellant referred to further comments in paragraph 39 of the decision “It would be open to the licensee to choose not to create the relevant monitoring information and keep it for possible inspection as necessary, albeit this would be in contravention of licence conditions. If that was the case, action could be taken by the Department under the relevant forestry legislation. Therefore, while the Department can access the monitoring information sought for the purpose of its forestry licensing functions, that does not, in my view, equate to there being no limitation on the Minister’s power to acquire the requested information, as suggested by the appellant, or equate to the information being held for the Department, within the meaning of article 3(1).” The appellant stated “[i]t is open to any individual or Public Authority not to create information that it is required to create contrary to the law. I am at a loss to understand how this justifies the Commissioner’s position vis-à-vis with the status of the information with respect to the Department’s position under Article 4.”
o The appellant stated “[t]he Commissioner has not stated what the limitation is on the powers of the Minister to acquire the requested information. The powers afforded under Article 24 of the Forestry Act (2014) are not restricted to the Minister’s licensing function; they relate to the broad functions of the Minister with respect to forestry matters.”
o The appellant stated, regarding Request 1 specifically “[i]f the licensee were to destroy the records they would be acting in breach of the licence – but the licence no longer exists.” Regarding the other requests, he stated “[i]f the licensee were to destroy the records they would be acting in breach of the conditions of the licence. This is a separate matter as to whether the information is ‘held by or for the’ Department.”
o The appellant stated “[i]f the licensee has destroyed the information or has not created the information in the first instance then the Department would be justified in refusing my request under Article 7(5) of the Regulations.”
o The appellant stated “[i]t is my view that the Commissioner has confused the Minister’s role under the licensing element of the Forestry Act (2014) with his wider duties under the Forestry Act (2014) and his duties under the AIE Regulations – which necessarily relate to the Minister’s role in forestry matters. Whether or not a licensee has complied with the law or not is relevant to the exception of Article 7(5), not to the fundamental premise as to the status of the records with regard to Article 7(1).”
o The appellant continued to refer to paragraph 39 of the decision “While the Aarhus Guide, mentioned above, refers to information that may be “left on the premises of a regulated facility”, I am not convinced that this refers to the relationship between a regulatory body and an entity under its remit. As set out above, the ability of the Department to access monitoring information in its role as forestry licensing authority is set out in legislation, and is not the equivalent of information simply being left on the premises of another body. As well as this, I note that the Aarhus Guide is an aid to interpretation and I am not bound by its contents.” The appellant submitted “[t]he ability of the Department to access monitoring information is not restricted to the Minister’s licensing role. The information is necessarily created by and held by the licensee. It would be impractical to do otherwise. The information exists because the Department requires it to exist. The licensee would not be acting legitimately if they did not create the information. It would be unreasonable to expect the Department to hold the monitoring records particularly whilst the licence is still active as the information may be added to until the licence is fully exercised or expires. The Commissioner is ‘not convinced’ regarding the relationship between the Regulatory Body and the licensee but has not presented an argument or rationale as to why not. Being ‘not convinced’ of something does not mean that the contrary position applies. In the absence of certainty on the part of the Commissioner the presumption should be in favour of release of the requested information (which must be assumed to exist).”
o The appellant referred to paragraph 40 of the decision “Finally, I also note the appellant’s contention that had the Minister had previously requested the information and was in possession of the information (i.e that he actually holds the information), he would not require the permission of the licensee to disclose that information to him. While the Department might not require the permission of the licensee to disclose information relevant to an AIE request, the Department might be required to consider the interest of the licensee when considering whether exemptions under the AIE Regulations apply to the information sought, depending of the particular factual circumstances. This may extend to seeking the views of the licensee on the disclosure of the information, again depending of the nature of the information at issue.” The appellant contended “[i]t would be more correct for me to have stated; ‘had the Minister previously ‘required’ the information to be provided and was thus in possession of the information...’ Notwithstanding this point, the Commissioner has failed to explain under what aspect of the Regulations such consideration might apply. I contend that it could not be under Article 7(11) as the third party would not have submitted the information voluntarily… The Minister can require the information to be presented and can take copies. This means that the information is not provided voluntarily.”
o The appellant stated “The Minister has the power to hold the information; why would he not do so in response to a request under the Regulations? This would be aligned with the purpose of the Regulations.”
o The appellant stated “[t]he decision of [the Department] on this request, supported by the Commissioner in the decision in case 148308, runs counter to the purpose of the AIE Directive which needs to be considered in the wider context of the body of European Law.
• The appellant referred to Article 7(1) of the AIE Directive, “Member States shall take the necessary measures to ensure that public authorities 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” and noted Article 7(2) of the AIE Directive, which states “The information to be made available and disseminated shall be updated as appropriate and shall include at least: (e) data or summaries of data derived from the monitoring of activities affecting, or likely to affect, the environment”.
• The appellant submitted “The failure of the Department to source the monitoring information is perverse when read in the context of Recital 9 of the Directive, (9) ‘It is also necessary that public authorities make available and disseminate environmental information to the general public to the widest extent possible, in particular by using information and communication technologies. The future development of these technologies should be taken into account in the reporting on, and reviewing of, this Directive.’ This lends to the view that [the Department] should be actively sourcing monitoring records relevant to mitigation under the Habitats Directive and should be actively disseminating them (through the Forest Licence Viewer), not making arguments to keep them hidden from public scrutiny.”
• The appellant stated “[t]he Department’s position, endorsed by the Commissioner in case 148308 creates a disparate regime for monitoring records required as a condition of forestry licences. Information created and maintained by Coillte will be accessible to the public through that body under the AIE Regulations, but equivalent data created and maintained by a private licensee will not. This results in a two-tier system which is inconsistent with the objectives of the Regulations, the Directive and the Aarhus Convention. The public should have access to monitoring data created as a legal requirement to evidence mitigation to protect the Natura 2000 network.” Regarding Requests 2, 3 and 4, he added “to act otherwise is inconsistent with the principles that underpin the AIE Regime”
• The appellant stated “I disagree with the Department’s decision to refuse my request. I disagree with the Commissioner’s position in case 148308 which might be used to support DAFM’s decision”
16. The appellant’s submissions to this Office regarding Requests 2, 3, and 4 were very similar to those regarding Request 1, as set out above. Accordingly, I do not repeat them in full here, however, I can confirm that I have had regard to them.
17. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned. In cases where a public authority has effectively refused a request under article 7(5), this Office must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply. It is not normally this Office’s function to search for environmental information.
18. Article 7(5) of the AIE Regulations refers to information “held by or for” a public authority. In light of a comment made by the appellant, I wish to confirm that instances can arise where the same information is held simultaneously by different parties e.g. two public authorities or a public authority and a private individual, being held by a public authority and held for that public authority by another public authority or a private individual.
19. Article 3(1) provides that environmental information held for a public authority “means environmental information that is physically held by a natural or legal person on behalf of that authority.” For clarity, any references I make in this decision to information “in the possession of” should be taken as meaning “physically held by”.
20. Both the Aarhus Guide and the preparatory documents for the AIE Directive, available here, provide assistance in interpreting the term “on behalf of”. The Aarhus Guide states: “[i]n practice, for their own convenience, public authorities do not always keep physical possession of information that they are entitled to have under their national law. For example, records that the authority has the right to hold may be left on the premises of a regulated facility. This information can be said to be “effectively” held by the public authority.”
21. Similarly, the European Commission's First Proposal for the AIE Directive defined information held for a public authority as meaning “environmental information which is held by a legal or natural person on behalf of a public authority under arrangements made between that authority and that person”. The Proposal explained:
“In many cases, experience shows that environmental information which public authorities are entitled to hold on their own account is kept physically on their behalf by other entities. Access to such information may be requested by the public. Public authorities should not be entitled to refuse access to this information simply on grounds that it is not physically in their possession. The proposal ensures that, if such information exists and is kept for the public authority concerned under arrangements with another person or body, it should be made available by the public authority in the normal way.”
22. The proposal was later amended by the European Council to its current wording. The European Council explained that “information held” means “physically held” and deleted the First Proposal's limitative requirement for an arrangement between the holder and an authority. The European Commission noted that by the European Council's amendments the definition was simplified, but the "underlying principle of the definition in the Commission proposal is however ensured".
23. These sources indicate that the purpose of the provision is to ensure that public authorities cannot avoid their obligations under the AIE Directive by simply outsourcing the storage of that information to a third party.
24. There have been a number of decisions of the Commissioner in recent years on the question of whether information is “held for” a public authority, including the cases of OCE-93477- D5V8B6 and OCE-97484-R5V6V1. As noted by the appellant, this Office also recently issued a decision regarding whether monitoring information that may be in the possession of licensees is “held for” the Department, OCE-148308-J1V2C8, OCE-148335-C1Y3P0, OCE-148824-T9S9R3, OCE-151808- M7B5Y2. While I am not bound by previous decisions of the Commissioner, these decisions provide helpful guidance as to how this issue should be considered.
25. In summary, the Commissioner must have regard to the overall factual position in a particular case and come to a conclusion as to whether or not the requested information is “physically held on behalf of” the public authority, taking into account the interpretative assistance provided by the preparatory documents to the AIE Directive. Where there is any doubt, the Commissioner must give an expansive meaning to the term “physically held on behalf of” a public authority, given the duty under article 10(2) of the AIE Regulations and article 4(2) of the AIE Directive to interpret grounds for refusal in a restrictive way. Given the Department’s comments regarding article 4(2) of the AIE Regulations it is important to note that the AIE Regulations can apply to private individuals where information they are holding is held on behalf of / for a public authority.
26. The High Court decision in Bord na Móna PLC v Commissioner for Environmental Information [2023] IEHC 57 clarifies that the factual background to the case must be considered by the Commissioner when determining whether the public authority may be said to have control or ownership over the relevant environmental information held by a third party. This consideration may further include examining the nature of relationship between the public authority and the third party. Finally, the Court concluded that the AIE Regulations and AIE Directive require a broad interpretation of the phrase “on behalf of” to be employed when considering if information is held for a public authority. On that basis, the Court found that a legal person may be said to hold information both for their own purposes whilst concurrently holding the information on behalf of a public authority.
27. The Commissioner has also considered a number of cases dealing with the question of whether requested information is “held for” a public authority by a third party in circumstances where it is alleged that the information relates to that third party’s compliance with, e.g., regulatory obligations or planning permission conditions. Examples of such cases include OCE-97484-R5V6V1, CEI/16/0035, and CEI/13/0001.
28. These decisions provide that although a public authority may have a right or power to compel a third party to provide it with information in particular circumstances, this does not necessarily mean that the third party holds the information on behalf of that public authority. The question as to whether information is “held for” a public authority thus depends in part on the degree of control that the public authority holds over the information in question. It is therefore necessary for the Commissioner to examine the factual background to each case and the basis upon which the requested information is created or held before coming to any conclusions on this point.
29. Here, the question at issue is whether any relevant monitoring information (and dates of works) that may be in possession of forestry licensees is held for the Department for the purposes of the AIE Regulations. The Forestry Act 2014 confers powers on the Minister for Agriculture, Food, and the Marine to grant and enforce forestry licences. The Forestry Act 2014 is the primary legal basis for issuing forestry licences, detailed further by other specific regulations e.g. the Forestry Regulations 2017 and the European Communities (Forest Consent and Assessment) Regulations 2010.
30. In his requests, the appellant referred to conditions in licences granted which provide, for example, that “records of such monitoring and of any resulting operational adjustments and postponements must be kept for possible inspection”. I understand the appellant’s position to be that the that conditions in licences granted require licensees to create and maintain monitoring records, which would not occur if there were no such conditions and that the licensee is under no compulsion of their own to create and maintain; it is required by the Department, which must be available for the Department for inspection (i.e. the Department has a right of access) in order to ensure that the Department can assess compliance with the licences and carry out its enforcement role under the Forestry Act 2014, and which the Department can access for the purposes of answering the AIE request. I am satisfied that it is the appellant’s view that the monitoring information (and dates of works) sought in the possession of the licensees, is held on behalf of / for the Department.
31. In addition to licence conditions which require, for example, that monitoring information be “be kept for possible inspection”, I note that the Forestry Act 2014 at Part 6 (Enforcement), section 24 (Powers of authorised officers) provides that authorised officers have various powers for the purposes of the relevant statutory provisions provided for under that Act, including:
“…(b) while on the lands or at the place referred to in paragraph (a), may inquire into, search, examine and inspect—(i) any tree and anything relating to trees, including plants, soil, compost or seeds, (ii) any timber or timber products, (iii) any activity, installation, process, procedure or matter at that place, (iv) any records relating to any of the foregoing matters;
…(f) inspect and take copies of or extracts from any such records or any electronic information system at that place, including in the case of information in a non- legible form, copies of or extracts from such information in a permanent legible form or require that such copies be provided;
…(h) remove from that place and retain such records (including documents stored in a non-legible form) and copies taken and detain the records for such period as the authorised officer reasonably considers to be necessary for further examination or until the conclusion of any legal proceedings;”
32. I accept that if it were the case that the information sought was in the possession of the Department, then it would be for the Department to process that information in accordance with the AIE Regulations, assessing whether any of the exemption provisions properly applied. However, while it appears to be the appellant’s position that if the Department has the power to acquire the information, then that is sufficient for it to be “held for” the Department, when the Department has required the information to be generated and that an “absurd situation” would be created where “monitoring data held by a licencee cannot be copied for the purpose of the AIE Regulations when there is an express term in the licence that allows the [Department] to take and retain a copy” and the Department“ has an express power under the Forestry Act (2014) to source the information concerned”, I do not agree.
33. In my view, while the Department requires, through licence conditions, the creation of and is able to inspect monitoring information (and dates of works), can take copies of / retain that information, and requires that information for the purposes of undertaking its enforcement role, I do not consider the information that is in the possession of the licensees is physically held by the licensees on behalf of the Department.
34. Instead, the Department’s ability to access the information arises from its function as the forest licensing authority. The Minister or authorised officers of the Department are entitled to access the information for the purpose of assessing compliance with the licence conditions / carrying out enforcement functions under the relevant forestry legislation. Outside of this role, the Department has no role in managing or overseeing this information. I note the appellant’s contentions to this Office that “[t]he Department’s ability to access the information arises from its function as the competent authority for forestry, not merely as the forestry licensing authority” and reiterate that the Forestry Act 2014 at Part 6 (Enforcement), section 24 (Powers of authorised officers) provides that authorised officers have various powers for the purposes of the relevant statutory provisions provided for under that Act. I also note the appellant’s contention that in decision OCE-148308-J1V2C8, OCE-148335-C1Y3P0, OCE-148824-T9S9R3, OCE-151808-M7B5Y2, “the Commissioner makes no reference to the fact that the licensee has been required to create the record in the first instance. The Department requires the information to be maintained. I consider this to be a role in the management of the information. The Department has created a requirement for the retention of the information. Retention is a form of management”. In this decision, as in my previous decision, I have acknowledged above that the Department requires, through licence conditions, the creation of and is able to inspect monitoring information (and dates of works), can take copies of / retain that information, and requires that information for the purposes of undertaking its enforcement role. Furthermore, and as also noted in my previous decision, it would be open to the licensee to choose not to create (or destroy) the relevant monitoring information (and dates of works) and keep it for possible inspection as necessary, albeit this would be in contravention of licence conditions. If that was the case, action could be taken by the Department under the relevant forestry legislation. Therefore, while the Department can access the monitoring information (and dates of works) sought for the purpose of its forestry licensing functions, that does not, in my view, equate to there being no limitation on the Minister’s power to acquire the requested information, or equate to the information being held for the Department, within the meaning of article 3(1) of the AIE Regulations. The appellant disputes the foregoing in his submissions stating “[i]t is open to any individual or Public Authority not to create information that it is required to create contrary to the law. I am at a loss to understand how this justifies the Commissioner’s position vis-à-vis with the status of the information with respect to the Department’s position under Article 4”; “the Commissioner has not stated what the limitation is on the powers of the Minister to acquire the requested information. The powers afforded under Article 24 of the Forestry Act (2014) are not restricted to the Minister’s licensing function; they relate to the broad functions of the Minister with respect to forestry matters”; and “the Commissioner confused the Minister’s role under the licensing element of the Forestry Act (2014) with his wider duties under the Forestry Act (2014) and his duties under the AIE Regulations”. However, I am satisfied in my position outlined above that while the Department can access the monitoring information (and dates of works) sought for the purpose of its forestry licensing functions / its enforcement role of the relevant statutory provisions under the Forestry Act 2014, that does not, equate to their being no limitation on the Minister’s power to acquire the requested information, or equate to the information in the possession of licensees being held for the Department within the meaning of article 3(1) of the AIE Regulations. I consider that the fact that the licensee could choose not to comply with the license condition is relevant to the degree of control that the Department could be said to have over the information in question.
35. While the Aarhus Guide, mentioned above, refers to information that may be “left on the premises of a regulated facility”, I am not convinced that this refers to the relationship between a regulatory body and an entity under its remit. As set out above, the ability of the Department to access monitoring information (and dates of works) in its role as forestry licensing authority is set out in legislation, and is not the equivalent of information simply being left on the premises of another body. Even if this does refer to that type of relationship, I note that the Aarhus Guide is an aid to interpretation and I am not bound by its contents. As well as this, the Aarhus Guide is a document relating to the Aarhus Convention itself, which does not provide a definition for what is meant by “holding” information but instead notes that this is a matter for domestic law. The Aarhus Guide was not written with the AIE Directive or the AIE Regulations in mind. I acknowledge the appellant’s submission that “[t]he Commissioner is “not convinced regarding the relationship between the Regulatory body and the licensee but has not presented an argument or rationale as to why not. Being ‘not convinced’ of something does not mean that the position applies. In the absence of certainty on the part of the Commissioner the presumption should be in favour of release of the requested information (which must be assumed to exist)”. I am satisfied with my assessment of the Aarhus Guide. I consider that there is nothing in the AIE Directive or AIE Regulations that suggests that this type of information is held “for” the Department. I wish to highlight my view that the presumption in favour of release under the AIE Regulations can only apply in respect of information that has, in the first instance, been found to be environmental information held by or for a public authority. If the environmental information concerned is not held by or for a public authority, then the presumption in favour of release under the AIE Regulations cannot apply.
36. I also note the appellant’s updated contention that had the Minister had previously “required” (rather than “requested”) the information and was in possession of the information (i.e. that he actually holds the information), he would not require the permission of the licensee to disclose that information to him. As stated in my previous decision, while the Department might not require the permission of the licensee to disclose information relevant to an AIE request, the Department might be required to consider the interest of the licensee when considering whether exemptions under the AIE Regulations apply to the information sought, depending of the particular factual circumstances. This may extend to seeking the views of the licensee on the disclosure of the information, again depending of the nature of the information at issue. In response to the appellant’s contention that “[t]he Commissioner has failed to explain under what aspect of the Regulations such consideration might apply…it could not be under article 7(11) as the third party would not have submitted the information voluntarily…”, I wish to emphasise that if the information was in the possession of the Department, even where the information was not provided voluntarily and/or article 8(a)(ii) of the AIE Regulations was not being relied upon, circumstances may arise where the licences would be required to be consulted / notified as third parties in the interests of fair procedures.
37. Finally, I note the appellant’s submissions regarding dissemination, and Article 7 and Recital 9 of the AIE Directive, which I have detailed in the Position of the Parties section above. Article 7(1) of the AIE Directive is transposed by article 5(1)(b) of the AIE Regulations, which states that a public authority shall “make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible by information technology or by other electronic means”. Article 7(2)(e) of the AIE Directive is transposed by article 5(2)(d) of the AIE Regulations, which provides that “[t]he environmental information specified in sub-article 5(1)(b) shall include at least: data or summaries of data derived from the monitoring of activities affecting or likely to affect, the environment, where such information is directly relevant to the function of that public authority and is environmental information within the meaning of Article 3.” It is important to note that it is not within this Office’s powers to examine the implementation of Article 7 of the AIE Directive or article 5 of the AIE Regulations by public authorities. Furthermore, it is outside the remit of this Office to adjudicate on how public authorities carry out their functions generally, including with respect to their environmental information management practices. This Office has no role in assessing how public authorities collect, maintain and disseminate environmental information. The role of this Office concerns review appeals of requests for access to environmental information within the scope of a request, which is held by or for the relevant public authority and no more than that. If the information sought is not held by or for the public authority then that is the end of the matter, regardless of his or her views as to what constitutes good administrative practice. As indicated, the Department has powers under the Forestry Act 2014 to obtain copies of relevant monitoring information (and dates of works) from licensees. I agree with the appellant’s comment that where such copies have been obtained and are in the possession of the Department, the information is held by the Department for the purposes of the AIE regime. However, this case concerns information in the possession of licensees copies of which have not been obtained by the Department is held for the Department for the purposes of the AIE regime.
38. In all the circumstances, I am satisfied that any relevant monitoring information (and dates of works) in the possession of licensees is not held for the Department within the meaning of article 3(1) of the AIE Regulations. I find therefore that the Department was not required to ask the licensees to carry out searches for that information and was justified in refusing access to that information under article 7(5).
39. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm the Department’s decisions to refuse access to any relevant monitoring information (and dates of works) that may be in the possession of licensees under article 7(5) of the AIE Regulations on the basis that the information is not held for it.
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.
Julie O’Leary
On behalf of the Commissioner for Environmental Information