Cinneadh
Ms Y and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150429-Y6F4F7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150429-Y6F4F7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing the appellant’s request on the basis that no environmental information within the scope of that request is held by or for it.
10 November 2025
1. On 18 April 2024, the appellant submitted an AIE request to the Department, as follows:
“ […] In relation to the contract signed in December 2022 between Coillte and Gresham House, please provide, by email, information on any clauses within the contract where, if Gresham House (or it's successors) lose money because of something like Ash Dieback for example. the State will be required to pay money to Gresham House (or it's successors). […]”
2. On 02 May 2024, the Department issued its original decision, in which the Department outlined that it was refusing the appellant’s request on the basis that no records relevant to the request were found.
3. The Department set out a number of search steps that were undertaken to locate and retrieve the requested information. The Department noted that the keywords “Gresham House” and “Gresham House Coillte” were used to search the Departmental mailboxes for any information relating to the request and no relevant records were found. The decision maker in the Department also added the following:
“I spoke to my supervisors to check if they would have any information in relation to your request and whether they would have any further suggestions as to where I might find information within the Department, or whether they knew of any personnel within the Department who would have knowledge or sight of the contract in question. It was pointed out that as your request relates to a commercial deal, it is not something that would fall within the remit or scope of the Forestry Section in DAFM”.
4. The Department also added that following discussion with supervisors as to where any information relevant to the appellant’s request might be found or whether they knew of any personnel with the Department who would have knowledge or sight of the contract in question, it was pointed out that as the appellant’s request relates to a commercial deal, that it is not something that would fall within the remit or scope of the Forestry Section in the Department.
5. The decision maker in the Department set out that at this point the Coillte Corporate Governance section was then contacted to determine if any relevant records existed in that section. The Department noted that a HEO in that section “checked the electronic shared directories, eDocs, records of recorded webinars and meetings that would be relevant to [the appellant’s] request and carried out a search of all electronic and paper records; no records were found relating to [the appellant’s] request.
6. The Department’s original decision also made reference to article 7(6) of the AIE Regulations which sets out the following:
Where sub-article (5) applies and the public authority concerned is aware that the information requested is held by another public authority, it shall as soon as possible—
(a) transfer the request to the other public authority and inform the applicant accordingly, or
(b) inform the applicant of the public authority to whom it believes the request should be directed.
7. In noting the above, the Department explained that in its decision it was invoking option (b) and informing the appellant that the Department believed the request should be directed to Coillte in this instance.
8. On 13 May 2024, the appellant submitted a request for internal review, noting her views that shares in Coillte are held by the Minister of Agriculture, Food and the Marine and the Minister for Public Expenditure and Reform.
9. In addition, the appellant set out that it appeared from a recent Joint Committee on Agriculture, Food and the Marine held on 25 January 2023 that the same information in her request could be provided by the Department to a TD. The appellant argued that if the information can be provided by the Department to a TD, then the same information can be provided by the Department to her under the AIE Regulations.
10. The Department issued its internal review decision on 12 June 2024, affirming its original decision. The internal review decision also re-iterated that the appellant was advised that Coillte may possibly hold records in this case.
11. The appellant submitted an appeal to this Office on 10 July 2024.
12. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department of Agriculture, Food and the Marine. 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’).
13. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
14. In my view, a reasonable interpretation of the appellant’s request is that she sought a copy of information obtained by the Department from Coillte in response to a query raised concerning “if Gresham House (or it's successors) lose money because of something like Ash Dieback for example. the State will be required to pay money to Gresham House (or it's successors)”, as discussed at a meeting of the Dáil Éireann Joint Committee on Agriculture, Food and the Marine held on 25 January 2023 (see page 57 of the Official Committee Report ). It is not within my remit to comment on the adequacy of the information sought by the Department or proffered by Coillte to the Department in this regard.
15. Further, I note the appellant’s arguments concerning the Department’s shareholding in Coillte, i.e., she is of the view that the Department has the legal right to request (any) environmental information from Coillte. However, the Commissioner’s remit is limited to review of the decisions of public authorities under the AIE Regulations. It is not my function to consider whether a public authority ought to hold information or may have a particular legal right to obtain information, but whether, as a matter of fact, a public authority held the information requested at the relevant time.
16. In accordance with article 12(5) of the AIE Regulations, the role of the Commissioner 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, the Commissioner will require the public authority to make available environmental information to the appellant.
17. The scope of this review is confined to whether the Department was justified in refusing access to the information requested on the basis that the information was not held by or for it.
18. The Department did not provide a submission in this case. The appellant provided some comments and observations within her appeal and also her submission provided to this Office. Her main argument appears to be that the Department can obtain the requested information from Coillte as the Department is a shareholder in Coillte.
19. Within the appellant’s appeal, she also reiterated her position in her internal review request where she referenced a previous Joint Committee on Agriculture, Food and the Marine where she believed the Chairman informed a TD that the same information she requested could be provided. The appellant presumed this would be information provided by the Department, noting the Joint Committee attendees, including the then Minister for Agriculture at that time.
20. Public authorities are only required by the AIE Regulations to make available environmental information, which is held by, or for, the public authority (see article 7(1) and 7(5)). I will consider separately whether the requested information was held by or for the Department.
21. Article 3(1) of the AIE Regulations provides that environmental information held by a public authority means information in the possession of a public authority, that has been produced or received by that authority. It is clear to me from this definition that the relevant date in determining whether information was held is the date the AIE request was received.
22. My approach to dealing with cases where a public authority has refused a request under article 7(5) of the AIE Regulations is that I must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the circumstances. In determining whether the steps taken are adequate in the circumstances, I consider that a standard of reasonableness must necessarily apply.
23. From a review of the Department’s decision-making records on this request, I note that it provided details to the appellant of the searches conducted. The appellant has not commented on the veracity of same and I am of the view, in the circumstances of this case, that the Department sufficiently demonstrated that reasonable and appropriate searches had been carried out to identify and retrieve environmental information relevant to the request.
24. Article 3(1) of the AIE Regulations 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. Both the Aarhus Guide and the preparatory documents for the AIE Directive, available here, provide assistance in interpreting the term “on behalf of”. 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.
25. As outlined above, the thrust of the appellant’s position is that, as a joint shareholder in Coillte, the Department has the legal right to request (any) environmental information from Coillte. The appellant cites the European Court judgment in Case C-339/00 Ireland v Commission of the European Communities. In that case, the court determined that Coillte is not a private-law legal person for the purposes of Article 2(2)(b) of Regulation No 2080/92, which concerns aid for income losses from afforestation on agricultural land. The court ruled that because Coillte was wholly owned and controlled by the state, it did not qualify as a private-law entity for the purposes of receiving this specific type of aid. In my view, this ruling has no import to the matter at hand. It is clear to me that both the Department and Coillte are “public authorities”, independent of each other, for the purpose of the article 3(1) of the AIE Regulations.
26. I also note that under Section 31(3) of the Forestry Act 1988, “[Coillte] shall, if so required by the Minister, furnish to him such information as he may require in respect of any balance sheet, account or report of the company or in relation to the policy and operations of the company other than day-to-day operations.” However, while the Department may indeed be able to access certain information from Coillte on request, that does not, in my view, equate to environmental information being held for the Department, within the meaning of article 3(1) of the AIE Regulations.
27. As set out above, the Department made reference to article 7(6) of the AIE Regulations in its original decision and informed the appellant that the Department believed the request should be directed to Coillte in this instance. As such, it is open to the appellant to submit a request to Coillte who may hold relevant information.
28. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I affirm the Department’s decision under article 7(5) of the AIE Regulations on the basis that the information is not held by or for it.
29. 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