Cinneadh
Mr. X and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146525-J9K5Z6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146525-J9K5Z6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Coillte has established that it did not hold information coming within the scope of the appellant’s request in accordance with article 7(5) of the AIE Regulations.
09 May 2025
1. On 18 December 2023, the appellant requested:
“The following information in relation to the monitoring and management of exotic conifers as invasive species within and external to the Coillte estate.
a) Drone footage
b) Ecological reports
c) Work programmes
d) Budget lines
e) Purchase orders
To include the evidence presented to Auditors at the annual audit in 2023”.
2. On 17 January 2024 Coillte refused the original request under article 7(5) of the AIE Regulations, informing the appellant that having taken all reasonable steps to locate the information sought and establish whether the information requested exists, it had been unable to locate any records relevant to the request. Coillte advised that a call with the Estates Process manager had taken place together with further discussions with two subject matter experts and “it was confirmed that the records requested do not exist in Coillte.”
3. In its original decision, Coillte stated that it does not consider “exotic conifers” to be an “invasive species” so therefore, information relating to the “monitoring and management of exotic conifers as invasive species within and external to the Coillte estates” does not exist. Coillte further stated that the monitoring and management of natural regeneration of conifers is carried out by Coillte “as and when required” and advised “if you want to access information relating to the monitoring and management of natural regeneration of conifers on the Coillte estates we invite you to submit a new AIE request, setting out as specifically as possible, the environmental information you wish to access”
4. On 17 January 2024 the appellant requested an internal review of the decision, informing Coillte that he believed it had taken “an excessively narrow interpretation” of his request which he said amounted to “an act of obstruction” to his right to access environmental information. The appellant also criticised Coillte for failing to seek clarification in respect of his request.
5. On 15 February 2024 Coillte issued its internal review decision. It affirmed its original decision under article 7(5) of the AIE Regulations, setting out that searches conducted included an “extensive search of files on cloud storage, the GIS system, business management systems” and set out the search methods and key words utilised, “invasive species” and “regeneration”.
6. Coillte further advised that detailed enquiries were held with two subject matter experts who deal with this type of information in Coillte to ascertain:
(a) if this information typically exists and/or is held by Coillte and
(b) to request they carry out appropriate keyword and files searches if such information is held by Coillte being:
(i) with Establishment Process manager on 07 February 2024, who manages the control of invasive species on the Coillte Estate.
(ii) with a Business Area Unit Manager on 09 and 14 February 2024, who manages the monitoring and recording of invasive species on the estate.
7. Coillte stated “that information in relation to your request does not exist in Coillte because the specific activity you have sought information on is not an activity conducted by Coillte.” Coillte further stated that the basis on which it had concluded “that some or all of the information sought does not exist is that Coillte does not treat exotic conifers as invasive species within or external to the entire Coillte estate, as intimated, and therefore the precise information that you requested does not exist.”
8. Coillte also stated:
“If you wish to access information relating to the monitoring and management of natural regeneration of conifers on the Coillte estate I invite you to submit a new AIE Request, setting out as specifically as possible, the environmental information you wish to access. Coillte did not provide any clarification on this matter as there have been numerous previous engagements with you on this topic by way of appeals to the OCEI i.e.: OCE-120981-Z4T9Z3, OCE-135353-K4C6Q3.
I am of the view that the wording of the Request is deliberate and suggests that your goal is to have the effect of increasing the administrative burden on Coillte, rather than demonstrating an intention to exercise your rights under the AIE Regulations and I consider this behaviour is analogous to vexatious behaviour. Coillte is entitled to interpret the Request by reference to the precise words and phrasing used by you. You have specifically requested information relating to a particular activity that Coillte does not carry out.”
9. The appellant appealed to this Office on 21 February 2024. In his statement of appeal, among other things, he rejected the accusation of vexatious behaviour and argued that Coillte’s position, namely that it “does not treat ‘exotic’ conifers as invasive species,” is at odds with the content of the “2023 Annual Audit Report from Coillte’s certification auditors (Soil Association Certification.”
10. I note that the appellant has clarified that the information he is seeking, includes information that Coillte provided to their auditors to demonstrate that they were taking action on Sitka
Spruce spreading outside of its planted range into sensitive habitats; which was described in the auditor’s report as " a proactive approach to the monitoring and management of exotic conifer as invasive species". He further argues that Coillte’s position in relation to this request, is at odds with the auditor’s report.
11. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to correspondence between Coillte and the appellant and I have considered the submissions made by the appellant and by Coillte 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’).
12. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
13. 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.
14. The scope of this review is solely concerned with whether Coillte was justified in refusing access to environmental information coming within the scope of the appellant’s request on the grounds that no relevant information was held by or for Coillte under article 7 (5).
15. 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 reviewing 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.
Coillte’s Position
16. As indicated above, in its original and internal review decisions, Coillte refused access to the information sought under article 7(5) of the AIE Regulations. In addition to providing details regarding the searches carried out, it also outlined its interpretation of the scope of the appellant’s request, noting that the basis on which it had concluded “that some or all of the information sought does not exist is that Coillte does not treat exotic conifers as invasive species within or external to the entire Coillte estate, as intimated...”
17. In submissions to this office dated 01 July 2024, Coillte stated that “it is a complex area,” and the wording of the request conflates two separate processes. Coillte stated that it does monitor invasive species in the estate and outlined that the main invasive species relevant to forestry operations with respect to Irish and European legislation are: Rhododendron, Alien Knotweeds, Giant Hogweeds, Himalayan Balsam, Cherry Laurel (while not a listed species under Irish or European legislation, it is included as it is a high impact invasive shrub that is common within the Coillte estate). Coillte stated that it does not monitor or categorise exotic conifers as invasive species. Coillte stated that it views exotic conifers as “commercial conifers” in the forestry sector and that they “monitor the natural regeneration of conifers on our estate most particularly in designated biodiversity areas.”
18. Coillte advised that it has a standard operating procedure for managing invasive species (which does not include conifer species) and it also has a standard operating procedure on managing natural regeneration of conifers. Coillte stated that there is a difference between the management of natural regeneration of commercial (or exotic) conifers and the management of invasive species. Coillte further clarified that it does monitor naturally regenerating commercial conifers and invasive shrubs in certain habitats, but it does not monitor conifers as invasive species in such areas.
19. In respect of the appellant’s submission that Coillte had given his request an “excessively narrow interpretation,” Coillte accepted the requirement to interpret a request broadly, however it stated that to accept the request in its current form would be to say that “it consider conifers to be an invasive species which we categorically do not. Coillte plant and harvest conifers as part of its commercial forestry operations.”
20. Coillte also suggested the appellant reframe his request, under defined categories “for Coillte’s management of conifer natural regeneration” and to confine the request to a specific geographical area and time period, as otherwise, the task of collating such information for the entire estate would likely be refused as being manifestly unreasonable as to volume and range.
21. In submissions to this Office dated 19 February, 04 July, 26 & 27 August 2024 and 30 September 2024 the appellant provided a number of arguments and documents which set out a case for the position that conifers should be treated as an invasive and/or exotic species. The appellant also raised a number of queries, such as “If Coillte does not consider exotic conifers to be invasive species why did they provide evidence to their Auditors to demonstrate how they were controlling those species in environmentally sensitive locations.”
22. The appellant also provided examples of what he argued was an acceptance by Coillte that the non-native (exotic) tree species have the potential to encroach on areas outside of Coillte property, which he stated is “invasive” and “that the control of those species is necessary where such encroachment occurs.”
23. 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.
24. In cases where a public authority has effectively refused a request under article 7(5), I 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.
25. The appellant, in his original request, sought access to: “[t]he following information in relation to the monitoring and management of exotic conifers as invasive species within and external to the Coillte estate.
a) Drone footage
b) Ecological reports
c) Work programmes
d) Budget lines
e) Purchase orders
To include the evidence presented to Auditors at the annual audit in 2023.” (my emphasis)
26. The general thrust of Coillte’s position is that the specific information sought does not exist on the basis that Coillte does not monitor conifers as invasive species.
27. The appellant has provided this Office with background details as to why he is seeking the requested information from Coillte. He has also provided detailed arguments and context around his position that conifers should be treated as an invasive and/or exotic species. In addition, the appellant also argued that Coillte are fully aware of the information he is seeking.
28. It is important to note that the scope of this appeal relates solely to whether the public authority has taken the appropriate steps to identify and locate relevant environmental information, it is categorically not the role of this Office to consider whether a particular type of conifer is an invasive species, or to determine whether Coillte should treat, or does treat the sitka spruce as an invasive species. The role of this Office is confined to determining whether or not a refusal to release environmental information coming within the scope of the appellant’s request was justified by Coillte under the AIE regulations, including whether a refusal under article 7(5) on the basis that the public authority does not hold the information sought is justified.
29. The appellant disputes what he says is Coillte’s narrow interpretation of his request. However, I consider Coillte’s interpretation of the appellant’s request to be reasonable, based on the wording of the original request and in light of Coillte’s classification of conifers, set out in detail in the “Position of the Parties” section above. While the OCEI encourage authorities to interpret requests for information on the environment broadly, in the circumstances of this particular case, I do not consider that this extends to interpreting the terms used in the request concerned in a manner beyond how it considers those terms in the course of its business.
30. I also note that Coillte set out its position clearly in the original decision on this appeal, stating “Coillte do not consider exotic conifers as invasive species…if you want to access information relating to the monitoring and management of natural regeneration of conifers on the Coillte estates we invite you to submit a new AIE request…”. It was open to the appellant to submit a new request to Coillte at that point and I consider that this would have been a reasonable response in the circumstances.
31. Further to its explanations regarding its interpretation of the scope of the appellant’s request, Coillte set out search details in its internal review decision, including the carrying out of searches of files on cloud storage, the GIS system, business management systems together with the search methods and key words utilised, namely “invasive species” and “regeneration”.
32. Coillte also stated that it conducted detailed enquiries with two subject matter experts in respect of the request, together with a call with the Estates process manager which resulted in the refusal to provide information.
33. The appellant provided a number of documents in support of his argument that conifers should be treated as invasive species, including:
34. The appellant also refers to definitions of “invasive species” by National Geographic, Wikipedia and the US Government to support his position, together with citing certain references (amongst other things) including Forest Stewardship Council references, Invasive Species Regulations, The Botanical Society of Britain and Ireland’s (BSBI) 2020 Plant Atlas, Irish times articles, Aerial imagery available through Tailte Eireann and the 2010 Upland Survey of Cuilcagh-Anierin SAC (Reference).(This is not an exhaustive list)
35. The appellant also argued “there should be no dispute that Sitka Spruce is an exotic species. It meets the definition of an exotic species in the forestry certification standard which they have signed up to. Sitka Spruce did not evolve in Irish ecosystems; it is not found in the pollen record going back to the ice age.” The appellant also questioned why the auditors refer to the information in the report if it is “not a category of information that exists within the authority.”
36. Whilst the appellant has argued that both the reference made in the auditor’s report together with certain wording contained in a Natura impact statement produced by Coillte for a felling licence application, amount to an acceptance by Coillte that the non –native (exotic) tree species have the potential to encroach on areas outside of Coillte’s property are invasive and that control of those species is necessary where encroachment occurs, I am not persuaded that they undermine Coillte’s position regarding its interpretation of the appellants request.
37. Regarding the appellant’s argument that Coillte’s position in relation to this request, is at odds with the auditor’s report, Coillte has confirmed that this report is prepared by a third party, separate from Coillte, who audit Coillte on forestry certification standards. Coillte state that the third party auditors “referred to ’exotic conifers’ to directly address and respond to the issues using terminology used by the Stakeholder (who is the appellant in this appeal)”. Coillte also state that during its engagement with the auditors, “all investigations, discussions and documentation firmly related to Coillte’s management of conifer natural regeneration – not exotic conifers as invasive species.” I accept that the terms used by the auditors in the report may not reflect Coillte’s operational approach.
38. In all the circumstances, in particular Coillte’s explanations regarding its interpretation of the scope of the appellant’s request, I am satisfied that Coillte has taken sufficient steps to determine that it does not hold environmental information relevant to the appellant’s request and accordingly was justified in refusing the request based on article 7 (5) of the AIE regulations. For the sake of completeness, I note that the appellant has the option to submit a fresh request for information beyond the scope of his original request should he wish to do so.
39. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm the decision of Coillte.
40. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
______________________
Ger Deering
Commissioner for Environmental Information