Cinneadh
Mr X & Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150569-C8V5W0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150569-C8V5W0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Coillte holds further information relevant to the appellant’s request with regard to article 7(5) of the AIE Regulations.
13 October 2025
1. This case relates to a previous appeal to this Office, reference OCE-136015-F9G6K6.
2. The previous appeal formed part of a batch decision by this Office, wherein 12 appeals concerning Coillte were examined.
3. On 5 December 2022, the appellant had submitted a request to Coillte seeking access to the following:
“All information relating to the corrective action required in respect of the major non-compliance (2022.5) identified during Coillte's 2022 FSC certification audit .
"The company shall ensure all phases in the design, construction and maintenance of forest roads or tracks, bridges and other infrastructure within the FMU shall be carried out in a manner that will minimise any negative impacts on the environment. This includes any ongoing measures needed to minimise soil erosion and disturbance to drainage patterns. Environmentally appropriate materials that minimise damage to the surrounding environment, including aquatic habitats, shall be used ."
Period – within three months
Audit Report dated 23-8-2
4. On 4 January 2023, Coillte issued its original decision on the appellant’s request. Coillte’s decision set out that records had been identified relevant to the appellant’s request but Coillte was refusing access to the records “having regard to the provisions of Articles 9(1)(b), 9(2)(c) and 8(1)(iv) of the AIE Regulations ”.
5. The appellant sought an internal review of Coillte’s decision on 5 January 2023. Within his request for internal review, the appellant contended that Coillte failed to adequately justify any of its grounds for refusal. The appellant also added his view that “_the fact that Coillte will be subject to an annual Audit in 2023 is not a basis for refusal of the requested information”. The appellant also set out that Coillte was given a 3 month period to address the Major Non-Compliance and noted that that time period was over. The appellant added that “the generic weighing of the public interest has not taken account of the fact that the information related to a Major Non-Compliance by Coillte and the strong public interest in transparency on such a matter ”.
6. Coillte’s internal review decision of 3 February 2023 affirmed the decision of the original decision maker.
7. On 28 February 2023, the appellant submitted an appeal to this Office of Coillte’s decision dated 3 February 2023, appeal reference OCE-136015-F9G6K6 . The scope of that review concerned whether Coillte held information relevant to the appellant’s request and whether Coillte was justified in withholding information from the appellant. As mentioned above, the previous appeal was part of a batch decision issued by this Office.
8. In the batch decision of 28 March 2024, the common thread which all cases shared was the relevance of the requested environmental information in each appeal to the authority’s participation in an audit process which was being carried out at the time of the appeal requests. For some additional context, Coillte had broadly refused the information requested under a number of articles, mainly (but not restricted to) article 9(1)(b), 9(2)(c) and 8(a)(iv). The decision annulled the internal review decision of Coillte in all 12 appeals and directed Coillte to carry out a new internal review process in respect of each request. In doing so, I included the following comments:
“11. It is the opinion of this Office that Coillte has failed to provide adequate reasoning as to how the release of the requested information in these appeals may negatively impact its involvement in the aforementioned audit process and to justify this with regard to the provisions of the AIE Regulations. With reference to Coillte`s refusal to release a number of documents where it considers those documents to be in the course of completion, and given the passage of time since these decisions were made, it appears that many of these records may now be complete and therefore available for release.
[…]
13. Following this Office’s initial examination of the case files, in each instance it appeared certain that following a full investigation of all of the circumstances of the appeal that the decisions of Coillte would be annulled and the request remitted. As many of the records in question contain third party information, where the third parties have not been consulted in relation to its release, this Office does not deem it appropriate to direct the release of this information.
14. Having reached this preliminary conclusion, this Office’s investigator contacted Coillte to explore if an informal decision could be reached to facilitate a review of these cases by the authority. In an effort to bring these cases to a timely conclusion Coillte has agreed to re-examine each case, without prejudice to its previous decision making process, within this Decision to bring them to a satisfactory conclusion preferably with an informal resolution where appropriate. As with previous batch decisions, this Office is cognisant of the additional workload placed on Coillte by this approach and appreciates Coillte for agreeing to review these cases in this manner.”
9. On 27 June 2024, Coillte issued is new internal review decision. Coillte varied the decision of the initial decision maker and set out the following:
“It is my decision to vary the decision of the first instance decision maker which was to refuse the Request having regard to the provisions of Articles 9(1)(b), 9(2)(c), 9(2)(d) and 8(a)(iv) of the AIE Regulations. I have decided that, because the original Request was submitted to our offices on 05.12.2022, given the passage of time and allowing for the fact that processes which affected the 1st decision are now complete, access to records relating to the request should be granted as, on this date, Articles 9(1)(b), 9(2)(c), 9(2)(d) and 8(a)(iv) are no longer applicable ”.
10. Coillte’s internal review also set out that it was granting access to all relevant records upon receipt of payment of applicable charges. Following payment of the relevant fees, Coillte released a folder of 10 records to the appellant.
11. On 16 July 2024, the appellant submitted an appeal to this Office of Coillte’s decision dated 27 June 2024, appeal reference OCE-150569-C8V5W0.
12. 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 my Office and both the Department and the appellant 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)
13. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
14. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
15. In his appeal to this Office, the appellant raised an issue regarding the fees charged to him by Coillte, however he subsequently stated that he was not pursuing the fee element.
16. Accordingly, the scope of this review is to determine whether Coillte was justified in refusing access to the requested information under article 7(5) of the AIE regulations on the grounds that no further information relevant to the request is held by Coillte.
17. In his statement of appeal to this Office dated 16 July 2024, the appellant provided a preliminary submission which included the following:
The appellant submitted that he paid the fee requested by Coillte and a folder containing 10 records was released. He further submitted that no schedule of records was provided despite a follow up request.
The appellant noted that his appeal “is confined to Coillte’s failure to provided information related to Item 3 of the Corrective Action Request (CAR)”.
The appellant submitted his view that Coillte did not address an element of the CAR which, also in his view, means that they have failed to address the full scope of the appellant’s request. The appellant also added that he “would have expected to receive information on the roll-out training programme to all Forest Operational Staff and Contractors ”.
The appellant also added that “this would include dates of when the training was delivered, the format of the training (classroom, on-line, in the field), any supporting documentation regarding the training – hand-outs, presentations, etc; the names (or company names) and the number of participants at each training event. If the event was accredited or if an attendance certification was issued that too would fall within the scope of my request. Internal correspondence on the development of the programme should also have been identified and considered for release ”.
18. Coillte provided a submission to this Office on 27 September 2024, setting out its position that all records/environmental information existing at the time of the request, and within the scope of the request, have been provided to the appellant. In support of its position, Coillte submitted the following regarding the adequacy of the information provided to the appellant:
“The Request was submitted by the Appellant to Coillte on 05 December 2022, prior to an Audit of the Soil Association (the “SA”) where the SA auditors would review the close-out plans of noncompliances noted in the previous year’s audit, and if satisfied formally close out such complaints. This review took place after the date of the Request. It included the Major CAR referred to by the Appellant in the Request (“major non-compliance (2022.5) identified during Coillte's 2022 FSC certification audit ”).One of the records provided to the Appellant in response to the Request is Coillte’s CAR close out. plan in relation to said Major CAR (Record No 1). This document sets out Coillte’s close out plan for review by the SA Auditors at the Audit which took place after the date of the Request. The record contains details of planned contractor training relating to silt and sediment mitigation to address the issues identified by the SA Auditors in the 2022 Audit. This contractor training was carried out by Coillte in Q3 of 2023, after the 2023 Audit when the plan was reviewed by SA Auditors. The training was carried out after the date of the Request therefore any records on the subject matter of the roll out of the training are not within the scope of the Request. It is the roll out of this training which the Appellant refers to in his submissions ”.
19. Coillte’s submission also set out searches which were carried out in order to identify any information relevant to the request. These searches were carried out by Coillte’s Head of Certification, Environment and QA and Coillte’s QA and Certification Specialist as Subject Matter Experts (“SME ”).
20. Coillte submitted that searches were carried out at the time of the request, shortly after 05 December 2022. Coillte added that further searches were carried out by the SMEs for the purpose of the fresh Internal Review Decision. Coillte also set out that “searches were carried out on outlook, cloud-based storage, Coillte’s certification database, using key words and key phrases “2022 Audit ”, “Major CAR 2022 ”, “major non-compliance 2022.5 ”, “Corrahoash ”.”
21. In addition, Coillte submitted that “following searches, and also with the knowledge and expertise of the SMEs, who are the Lead Certification Team members for the purpose of coordinating Audit close-out plans of noncompliances notified by the SA, it was confirmed that no further environmental information existed within the scope of the Request, that is for the period up to and including 14 March 2023. The SMEs worked collaboratively in carrying out the searches ”.
22. Coillte’s submission to OCEI also suggests that the appellant makes a new AIE request for contractor training which may have been carried out after the date of the request.
23. In this case, the appellant contends that Coillte should hold further information relevant to his 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 or any further environmental information is held by or for the public authority concerned. It provides as follows;
“Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it ”.
24. In order for article 7(5) to apply, this Office must be satisfied that Coillte has taken adequate steps to identify and locate all relevant environmental held by it. This Office’s approach to dealing with this type of case is to assess whether 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 is applied.
25. What will be considered reasonable will vary from case to case, but as a general guide, I set out below the type of information that my Office would generally expect to be set out in a decision where a public authority is relying on article 7(5) of the regulations:
(i) an outline of exactly which areas/units etc. of the organisation were searched for the information;
(ii) an explanation of how searches were carried out (i.e. manually, by computer, by name, by key words). Keywords should be recorded and provided in the decision as appropriate;
(iii) details of the individuals consulted in connection with the search;
(iv) a description of the searches carried out to cover the possibility of misfiled/misplaced records;
(v) details of guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of information requested in this case;
(vi) the basis on which the public authority has concluded that it does not hold any information within the scope of the appellant’s request and that no such information is held by any other person or body on its behalf.
26. It is important to note that where a public authority refuses a request for records under article 7(5) of the AIE regulations, the question we must consider is whether the public authority has taken all reasonable steps to ascertain the whereabouts of relevant records. The regulations do not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found, or, indeed, may have been destroyed in line with the body’s records management policies. It is also important to note that we do not generally expect public authorities to carry out extensive or indefinite general searches for records simply because an appellant asserts that more records should or might exist or rejects a public authorities explanation of why a record does not exist. The test in article 7(5) is whether the public authority has taken all reasonable steps to locate the record sought.
27. During the course of this investigation the appellant was provided with a copy of Coillte’s submission for comment and any additional comments he wished to provide for consideration in the appeal.
28. In response, the appellant submitted that the corrective action was required to be completed by 23 November 2022 and set out his view that any information generated prior to his request also falls within its scope. The appellant also set out information which was provided by Coillte to their auditors in relation to the roll-out training to close off the Major CAR, which indicated that "This training will be provided by the Environment Team in conjunction with the Team Leads from Estates/Engineering, Establishment and Harvesting ".
29. In addition, the appellant’s submissions included the following:
“My appeal is confined to Coillte’s failure to provide information related to Item 3 of the Corrective Action Request (CAR). It is not the date of the training per se that is critical, it is whether any information related to the training was generated before my request was submitted. The training may have been a future event but the idea of the training as a means of addressing the CAR and the initial structure and planning of the training must have occurred in advance of the training and must to some extent have been discussed before my request was made ”.
30. While the appellant makes a case that he should have been provided with further information, I must assess whether Coillte has taken all reasonable steps to identify any relevant information. Given the detail of the searches conducted by Coillte and the information already provided, I find that Coillte have adequately set out its reasons for the non-existence of any further information, taking into account the searches which were carried out by the SMEs for the purpose of the fresh internal review decision. Accordingly, I affirm Coillte’s decision that no further information within the scope of the appellant’s request is held by Coillte.
31. As set out above, Coillte noted in its submission of 27 September 2024 that the training which was the subject of the appellant’s original request was completed in Q3 of 2023, after the 2023 Audit when the plan was reviewed by Soil Association auditors, and accordingly there may be further relevant information now available. As such, it is open to the appellant to submit a fresh request to Coillte for this information.
32. Having carried out a review under article 12(5) of the AIE Regulations, I affirm Coillte’s decision.
33. 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