Cinneadh
Mr X and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-129327-G3R3L5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-129327-G3R3L5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Coillte was justified, under article 9(1)(d) of the AIE Regulations, in refusing access to records relating to the HydroSed project
6 December 2024
1. This case has its background in an ongoing research project, HydroSED. According the HydroSED project website , it is a collaborative research project funded by the Department of Agriculture Food and the Marine (the Department) that seeks to assess the hydrological and sediment impacts of forest operations in Ireland. There are four project partners: UCD (lead), Munster Technological University (MTU), Coillte, and Green Belt Ltd. The “About” section of the HydroSED project website further explains:
“Forestry presents pressures to the ecological status of watercourses, with sediment release being a recognised stressor in this regard. This field-based project measures flow change and sediment release at seven forestry sites with adjacent or nearby lotic waterbodies. Study sites reflect a range of soils, topographical and hydrological settings relevant to Irish forestry and the monitoring strategy targets different forestry operations (afforestation, harvesting, windrowing and reforestation). Data is related to levels of deposited sediment in riverbeds and ultimately to changes in hydromorphology and aquatic community health, with sediment fingerprinting being used to disentangle forestry operation impacts on suspended and deposited fine sediments from other catchment pressures. The efficacy and performance of commonly adopted sediment control measures in forests is also assessed. A hydrological model in combination with an appropriate soil loss model will be developed and tested to simulate hydrological and sediment release processes in Irish forestry settings.”
2. On 14 July 2022, the appellant submitted a request to Coillte seeking access to: “All environmental records relating to the ongoing HydroSED project to include, but not restricted to:
1. Methodology
2. Interim Reports
3. Preliminary findings
4. Correspondence
5. GIS data (in GIS format)”
3. The appellant asked that the information be provided as soon as possible “in electronic format and GIS format (ERSI Shapefiles and attribute data)”.
4. On 13 August 2022, Coillte issued its original decision, wherein it refused access in full to records relating to the appellant’s request under article 9(1)(d) of the AIE Regulations. Following further correspondence between the parties, Coillte provided the appellant with a schedule of the records refused.
5. On 26 August 2022, the appellant sought an internal review of Coillte’s decision, submitting that article 9(1)(d) of the AIE Regulations could not be relied upon in respect of all of the records and that 10(5) of the AIE Regulations had not been considered.
6. On 27 September 2022, Coillte issued its internal review decision, wherein it affirmed its decision to refuse access in full under article 9(1)(d) of the AIE Regulations.
7. On 30 September 2022, the appellant submitted an appeal to this Office.
8. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In doing so, I have had regard to the correspondence between Coillte and the appellant as outlined above and to correspondence between this Office and both Coillte and the appellant on the matter. I have also examined the information at issue. In referring to the records concerned, I have adopted the numbering system used by Coillte on the schedule it prepared when processing the request. 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)
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. Coillte identified 21 records on the schedule it provided to the appellant when processing the request. It refused access in full to those records under article 9(1)(d) of the AIE Regulations. The schedule describes the 21 records as follows:
| 1 | 29/8/2019 | 2019 Research Call Instruments (II - V) - 2019R447 - Successful Stage [Clarification on the evaluation of the proposal] |
| 2 | 24/9/2019 | DAFM 2019 proposal [Confirmation of acceptance of proposal] |
| 3 | 24/9/2019 | DAFM 2019 proposal [Response to queries raised by DAFM in acceptance email] |
| 4 | 30/9/2019 | DAFM proposal [Revised proposal submitted] |
| 5 | 7/11/2019 | DAFM proposal [Confirmation from DAFM on acceptance of revise proposal submitted] |
| 6 | 21/2/2020 | UCD DAFM Project Term Sheet [Copy of signed Term Sheet] |
| 7 | 4/6/2020 | PhD Project Title: Hydrological and sediment impacts of forestry operations in Ireland (HydroSED) [Advertisement for this role] |
| 8 | 9/6/2020 | Meeting re UCD DAFM project [Advising of online meeting invite and topics for discussion] |
| 9 | 19/6/2020 | DAFM Project Collaborative Agreement [Request to be signed by Coillte and clarification on processing any feedback on same] |
| 10 | 19/6/2020 | DAFM Project Collaborative Agreement [Points of clarification to the agreement submitted to UCD ] |
| 11 | 22/6/2020 | Agenda for meetings on 22 and 23 June [Agenda and focus of the meeting ] |
| 12 | 29/6/2020 | DAFM Project Collaborative Agreement [Revised agreement for signature by Coillte] |
| 13 | 07/7/2020 | Query from above meeting [Re. trial site access] |
| 14 | 9/7/2020 | Re: DAFM Project Collaborative Agreement [further discussion on same] |
| 15 | 14/7/2020 | Mapping for DAFM project [Zone of interest in candidate study sites ] |
| 16 | 31/8/2020 | Mapping for DAFM project [Submission of requested GIS data to UCD ] |
| 17 | 16/9/2020 | DAFM Project Collaborative Agreement [Further emails on same and signed agreement] |
| 18 | 9/11/2020 | Zoom call |
| 19 | 22/12/2020 | Executed Agreement for DAFM project [copy of same to project partners] |
| 20 | 23/9/2021 | Forestry and Energy Review [article to be reviewed] |
| 21 | 24/9/2021 | Mapping for DAFM project – HydroSED [long and complex thread of emails on this topic |
11. During the course of this review, Coillte provided this Office with 34 records. It appears to me that the additional information not identified on the schedule of 21 records, the majority of which are emails, comprises attachments and additional information relevant to: record 2 (four attachments); record 4 (one attachment); record 5 (one attachment); record 6 (one attachment); record 9 (one attachment) record 11 (one attachment); record 12 (one attachment); record 15 (additional email record and one attachment); record 19 (one attachment); and record 20 (one attachment). Coillte seemingly did not provide a copy of record 17 as identified on the schedule to this Office and also indicated that there were shapefiles attached to record 16 which had not been provided – however, I am satisfied that I can proceed in making a decision.
12. The scope of this review concerns whether Coillte was justified, under article 9(1)(d) of the AIE Regulations, in refusing access in full to the 21 records identified on the schedule, and their related attachments/information, concerning the HydroSed project.
13. It is clear from the comments of the Court of Appeal in Redmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83, at paragraph 51, that the nature of a review by this Office is inquisitorial, rather than adversarial in nature. The extent of the inquiry is determined by this Office and not by the parties to the appeal.
Appellant’s Position
14. It is the appellant’s position that article 9(1)(d) does not apply to any of the information at issue and, at a minimum, it does not apply to records 1-5, 8, 11, 13 and 18. He also contended to this Office that the public interest test had been “applied as a test to the body of records as a whole" rather than “to each record”, that the fact that HydroSed is a publicly funded project had not been taken into account and “weighed by Coillte in its application of [a]rticle 10(3)”, and that article 10(5) of the AIE Regulations had not been correctly applied.
Coillte’s Position
15. Coillte, in its original and internal review decisions, provided detail in support of its reliance on article 9(1)(d) of the AIE Regulations to refuse access to all of the information at issue, which I have summarised below:
(i) Coillte stated that it is solely an industry partner and is not a Research Performing Body in the HydroSed project. Coillte noted that it maintains a referral role. Coillte outlined that, as such, it does not own any of the intellectual property rights to the material developed over the course of the project. Coillte stated that such intellectual property rights belong to the Research Performing Bodies working on the project.
(ii) Coillte stated that if it were to release the records sought this would have an adverse effect on the intellectual property rights of the Research Performing Bodies in the project, constituting a breach of such rights.
(iii) Coillte stated that as the Research Performing Bodies hold intellectual property rights on all of the records sought, it can rely on article 9(1)(d) of the AIE Regulations as the basis for refusal.
(iv) Coillte stated that the records sought constitute intellectual property which have been generated or developed in the course of the project. Coillte commented that such intellectual property is inherently valuable to the Research Performing Bodies and the protection of such intellectual property is fundamental to the Research Performing bodies, as the release of such material would negatively affect their legitimate economic interests. Coillte submitted that the release of the requested information before the project has concluded and before the final report is published, would be a premature release of the material into the public domain. Coillte contended that once in the public domain it would be impossible for the Research Performing Bodies to attempt to assert their intellectual property rights. Coillte stated that this would hinder the ability of the Research Performing Bodies to complete their research, at great economic expense.
(v) Coillte stated “… the HydroSED Project is time bound, and the project is as of now, still ongoing. Upon conclusion of the project, the requested information on the project will be published, and will be available in the public domain” and “[o]nce the project is complete and the information is published, Coillte will provide access to this information on [its] website, and it will be publicly available.”
(vi) Coillte stated that it weighed the public interest served by disclosure of the records sought against the interest served by refusal. Coillte noted: “…a release of the requested records would adversely affect the intellectual property rights of the Research Performing Bodies. While the public has a right to access information on the workings of public bodies and accountability of decision making, in this case the arguments against release far outweigh those in favour. As Coillte does not own any of the intellectual property rights to the material developed in the course of the project, providing the request information would breach the intellectual property rights of the Research Performing Bodies, thereby causing harm to the Research Performing Bodies.”
(vii) Coillte stated that article 10(5) of the AIE Regulations “cannot be applied in this instance. As stated, as Coillte holds no intellectual property rights to the information requested, it is therefore not capable of separation, and dissemination by Coillte.”
16. During the course of this review Coillte emailed this Office stating: “Coillte have had an involvement with the Hydrosed project, being the subject matter of the AIE Request under appeal, for a number of years. Accordingly, it is my proposal that you approach the Appellant with a request to refine the scope of his request to specific time period, for example, a 3 to 6 month period before the Request.” In response, this Office’s Investigator outlined that given that Coillte identified records relevant to the request and made a decision to refuse those records under article 9(1)(d) of the AIE Regulations, which the appellant appealed to this Office, it was not entirely clear why Coillte subsequently asked for the scope to be narrowed. She further noted that none of the records identified and provided to this Office appeared to be dated in the 3 to 6 month period before the date of the request – the request was submitted on 14 July 2022 and the records provided were indicated on the schedule as being from August 2019 to September 2021 – she asked Coillte to explain why this was the case and why no records dated after September 2021, including from 2022 prior to the date of the request, appeared to have been identified and provided. She outlined that in progressing the matter, it was her view that it was not appropriate for this Office to engage with the appellant to narrow the scope of his request. The Investigator also invited Coillte to make submissions regarding its refusal of the records at issue. In doing so, she asked a number of questions regarding Coillte’s application of article 9(1)(d) of the AIE Regulations. Separately, she noted that this Office had recently issued decisions in two other cases involving the HydroSed project: OCE-133527-Y7Z4G4 - Mr. X and University College Dublin and OCE-136261-T6R0G5 - Mr X and Department of Agriculture, Food and the Marine. Those cases, although also involving the HydroSed project, included different records and article 9(2)(c) of the AIE Regulations. While the decisions of those public authorities were affirmed under article 9(2)(c), it is important to note that each case must be considered on its own merits, having regard to the particular information at issue.
17. In response Coillte stated “...I note what you are saying in relation to Coillte’s proposal for refinement / to narrow the scope. This was an oversight in making that proposal as the correspondence identified is indeed prior to the proposed time period. I am satisfied that the subject matter experts have identified all records within scope, but I will ask that a further review is carried out to ensure there are no later records….”
18. The date for Coillte’s response to the Investigator’s request for submissions was 12 September 2024 and Coillte was subsequently granted a number of extensions. Although Coillte sent a few emails to this Office, indicating that submissions and a revised schedule of records would be provided, no submissions have been received to date and Coillte did not respond to the Investigator’s latest request for an update on 15 November 2024.
19. Article 9(1)(d) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect intellectual property rights. This provision transposes Article 4(2)(e) of the AIE Directive, which, in turn, is based on Article 4(4)(e) of the Aarhus Convention.
20. The Minister’s Guidance, in considering article 9(1)(d) of the AIE Regulations, states:
“A public authority may refuse to make available environmental information where its disclosure would adversely affect intellectual property rights. This would be likely to include copyright protected material, a patented design, the constituents of a product that has yet to be marketed or other confidential trade information. Information that is the subject of copyright does not necessarily prevent public authorities from releasing the information that they hold, but it would be prudent to satisfy itself fully that the information should properly be released and make it clear to the applicant that the copyright exists.” (paragraph 12.5)
21. I also note that the European Commission’s Proposal for the AIE Directive states:
“So far as concerns the exception in relation to intellectual property law, it should be noted that, if access to environmental information covered by such a right is granted, the applicant will have to observe the relevant intellectual property right governing the use intended by him. This generally means that he would not be able to reproduce or exploit it for any other economic purposes without the prior authorisation of the rightholder.”
22. Accordingly, it is this Office’s view that even where information is disclosed under the AIE Regulations, this does not mean that its owner has relinquished any intellectual property rights that they may hold over the information. Therefore, while intellectual property rights do not prohibit disclosure under the AIE Regulations and continue to exist where disclosure occurs, a requester will arguably be limited in what they can do with the information due to enforcement remedies available under intellectual property law.
23. When relying on article 9(1)(d) of the AIE Regulations, a public authority must show that the information at issue is protected by intellectual property rights (identifying the specific material concerned, the intellectual property rights concerned, and the owner of those rights) and also show that those intellectual property rights would be adversely affected by the disclosure of the information at issue (e.g. a monetary loss). It is generally not sufficient for the public authority to simply demonstrate that intellectual property rights would be infringed, rather the public authority should establish that the owner of the intellectual property rights would suffer harm as a result of the infringement of those intellectual property rights and that the owner could not prevent that harm by enforcing those intellectual property rights. The public authority must demonstrate a clear link between the disclosure of the information that has been withheld and any adverse effect. The risk of intellectual property rights being undermined must be reasonably foreseeable and not purely hypothetical. A mere assertion of an expectation of harm is not sufficient.
24. Article 9(1)(d) must also be read alongside article 10 of the AIE Regulations. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
25. Articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stages, consistent with Article 4(5) of the AIE Directive. In this regard, the High Court in Right to Know v An Taoiseach [2018] IEHC 372 noted, in particular, that “in light of the adjudicatory processes in which a decision-maker is required to engage pursuant to Articles 10(3), (4) and (5) and 11(4) of the AIE Regulations, the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal” (paragraph 106). The Court held that in an absence of any indicator in the review decision that the balancing exercise mandated by articles 10(3) and (4) had been carried out, suggested that no balancing exercise had, in fact, been undertaken and that the same was true in respect of the mandatory obligation set out in article 10(5) of the AIE Regulations (paragraph 87).
26. Having examined Coillte’s position, as set out in the Position of the Parties section above, I understand that it considers article 9(1)(d) of the AIE Regulations applies to all of the 21 identified and their related attachments/information. While Coillte provided detail regarding intellectual property rights and how they pertain to the project generally, it did not establish any specific recognisable intellectual property right(s) relating to any of the particular information at issue. While Coillte also made speculative claims in respect of harms arising from disclosure, it did not explain how, or the likelihood that such harms would arise. It did not demonstrate a clear link between the disclosure of the particular information at issue and any adverse effect in its application of article 9(1)(d) of the AIE Regulations. Furthermore, a brief inspection of the 21 records, and their related attachments/information, shows that while intellectual property rights may arise in respect of some of the information at issue, they simply do not arise in respect of other information at issue.
27. It is also of note that notwithstanding Coillte’s statement to the effect that all of the information requested will be available on its website following the completion of and publication of information related to the project, given the nature of some of the information contained in the records identified, I am not satisfied that all of the information at issue will be made available on its website.
28. In the circumstances, I am of the view that Coillte adopted a blanket approach to its refusal of all of the information at issue contained in the 21 records concerned, and their related attachments/information, regardless of its specific nature. While it may be the case that article 9(1)(d) of the AIE Regulations is applicable in respect of certain information (subject to article 10) there is no evidence to suggest that any substantive consideration was given to the actual information concerned, to determine of article 9(1)(d) of the AIE Regulations properly applies. This is not an appropriate application of the application of the provision. It is most disappointing that Coillte does not appear to have fully engaged with its obligations under the AIE Regulations.
29. Accordingly, I do not find that Coillte’s reliance on article 9(1)(d) of the AIE Regulation is justified. I consider that the most appropriate course of action to take at this stage is to annul Coillte’s decision and to direct it to undertake a fresh internal review decision-making process. In reaching this conclusion, while I appreciate that this causes delay for the appellant, where Coillte has not fully engaged with its obligations under the AIE Regulations and properly undertaken its role of assessing the actual information at issue, and in light of the number of records involved and the presence of third party information, I do not believe that it is appropriate for me to direct the release of information at this point. These issues are compounded by Coillte’s failure to respond promptly to this Office’s request for further submissions. This Office has a significant backlog of appeals and I consider that it is not the best use of resources to carry out the task of reviewing information which does not appear to have been done by public authorities in the first instance, or to have to pursue public authorities repeatedly for submissions. I understand that this may be frustrating for the appellant but I consider that the AIE regime is best served by remittal in this case.
30. In re-considering the request, should Coillte wish to rely on article 9(1)(d) of the AIE Regulations (or any other exemption provided for in article 8/9 of the AIE Regulations), it must fully set out its reasons for reaching its conclusions as well as, where relevant, its considerations of article 10 of the AIE Regulations. Finally, given comments made by Coillte in its submissions to this Office regarding information from the three to six months prior to the date of the request, it may also be relevant for Coillte to set out the searches undertaken to identify relevant information to the appellant and, if any information is being refused under article 7(5) of the AIE Regulations on the basis that it is not “held by or for” Coillte, to set out the reasons for reaching that conclusion.
31. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul Coillte’s decision under article 9(1)(d) of the AIE Regulations. I direct Coillte to carry out a new internal review decision-making process.
32. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information