Case number: OCE-116233-H0K1M3
24 March 2023
PDF of the issued decision can be found at the following link:
1. On 22 September 2021, the appellant requested information on a number of specified forest road applications. In particular, he requested:
“a. Form 2 Submission Reports & Maps,
b. Cost of Works Carried Out Forms,
c. Any records relating to amendments made post the issuing of the licence,
d. Post licence Inspection Reports, and
e. Related correspondence”.
2. The Department issued a decision on the request on 19 October 2021, part-granting the appellant’s request. It made no reference to the Form 2 reports but outlined that it considered information requested by the appellant on the costs of works carried out was not relevant to an AIE request. It also noted that “access to some information sought is refused under article 8(a)(i)” but did not provide further detail.
3. The appellant requested that an internal review be carried out on 22 October 2021. He highlighted what he considered to be a number of issues with the Department’s decision. He noted that he had received the information requested in paper format despite asking to be provided with it electronically. He also disagreed with the Department’s contention that costs of works information was not relevant to an AIE request. Finally, he noted that no Form 2 submissions or records relating to post-licence amendments had been provided despite being referenced in his request.
4. The Department issued its internal review decision on 19 November 2021. It affirmed the original decision and stated that all relevant information had been released other than “the Form 2 application and related material”, which it considered to be “a contractual matter between the applicant and the Department and is not environmental material as set out in article 3”. No further detail was provided as to the basis for the conclusions reached as part of the internal review.
5. The appellant submitted this appeal to my Office on 24 November 2021.
6. My review in this case is concerned with whether the Form 2 application and related material comes within the definition of “environmental information” contained at article 3(1) of the Regulations.
7. I have now completed my 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. I have also examined the contents of the records at issue. In addition, I have had regard to:
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. The appellant submits that the details contained in the Form 2 report come within the definition of “environmental information” as set out at article 3(1) of the AIE Regulations. He believes that by refusing the information on the basis that it is not environmental information, the Department has avoided having to conduct the balancing test mandated by article 10 and consider the public interest in disclosure of the information. He also notes that a Form 2 has been provided to him by the Department as part of previous AIE requests. He describes a Form 2 as a submission report completed by a registered forester in order to make a claim for payment under the Forest Roads Scheme, which is operated by the Department as part of the 2014 – 2020 Forestry Programme. He submits that a Form 2 is accompanied by documents including maps and costs of works documents and contains details of the location of the actual works carried out (including maps), the date of the field assessment by the registered forester, the length and type of road constructed, the length for which payment is being claimed, the amount of public funding being claimed as well as details of particular features (e.g. whether Special Construction Works were involved) and the tonnage of stone and gravel used.
9. The Department has made submissions to my Office on two occasions. On both occasions it has reiterated its position that the Form 2 reports and “certain information in relation to Form 2 applications” do not constitute “environmental information”. Its most recent submissions, the Department states that “Form 2s are more of a contract between parties and not environmental information that would assist members of the public in identifying impacts of a project on the ground”. It also addressed the appellant’s submissions regarding previous provision of a Form 2, submitting that the decision-maker for the previous requests was incorrect to have supplied that information to the appellant. No further detail has been provided by the Department in support of its position.
10. Environmental information is defined in article 3(1) of the Regulations and article 2(1) of the Directive as “any information in written, visual, aural, electronic or any other material form on:
a. the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
b. factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);
c. measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements of the environment referred to in (a);
d. reports on the implementation of environmental legislation;
e. cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and
f. the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a), or, through those elements, by any of the matters referred to in (b) and (c).
11. The AIE Regulations transpose the AIE Directive at national level. The AIE Directive was adopted to give effect to the first pillar of the Aarhus Convention in order to increase public access to environmental information and enable an informed public to participate more effectively in environmental decision-making. It replaced Council Directive 90/313/EC, the previous AIE Directive.
12. According to national and EU case law on this matter, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg, at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig, at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond, at paragraph 58; see also ESB at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the Court of Justice of the European Union.
13. The right of access to environmental information that exists includes access to information “on” one or more of the six categories at (a) to (f) of the definition. In his decision in RTÉ, Barrett J expressly endorses the approach set out by the Court of Appeal of England and Wales in Henney to determine the “information on” element of the definition of “environmental information” (RTÉ, at paragraph 52). The first step is to identify the relevant category of the definition to which the information in question relates.
14. A Form 2 is a feature of the Forest Roads Scheme 2014 – 2020 operated by the Department. The terms and conditions of the Forest Road Scheme are available at https://www.uat.gov.ie/en/publication/eab84d-terms-of-the-forest-road-scheme/. Anyone wishing to construct a forest road must obtain prior approval from the Department. However, the Forest Road Scheme is a voluntary scheme whereby those who seek and obtain approval from the Department to construct a forest road may also apply for grant aid for the project. Application for approval to construct a forest road is made using a Form 1. My understanding is that a Form 1 is used whether or not the applicant is seeking grant aid in respect of the construction. The application for payment of the first instalment of any grant aid approved by the Department is made using a Form 2. A Form 3 is then used to claim the final instalment of the payment.
15. Having regard to the categories referred to at paragraphs (a) to (f) of the definition, it seems logical to first address whether the Forest Road Scheme can be considered a measure or activity affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b), or a measure or activity designed to protect those elements, within the meaning of paragraph (c) of the definition. If the answer to that question is yes, the next question to be addressed is whether the Form 2 “and associated documents” requested by the appellant can be considered information “on” the Forest Road Scheme.
16. A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. While it is not necessary to establish the probability of a relevant environmental impact, something more than a remote or theoretical possibility is required (Redmond, at paragraph 63). Information may be “on” one measure or activity, more than one measure or activity or both a measure or activity which forms part of a broader measure (Henney, at paragraph 42). In identifying the relevant measure or activity that the information is “on” one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned, and it may be relevant to consider the purpose of the information (ESB, at paragraph 43).
17. The Aarhus Guide notes that the Aarhus Convention expressly includes “administrative measures, environmental agreements, policies, legislation, plans and programmes” when referring to “measures” and “activities” likely to affect the environment. Similar wording is used in article 2(1)(c) of the Directive and article 3(1)(c) of the AIE Regulations. The Aarhus Guide notes that the use of these terms suggests that some degree of human action is required. The Guide also describes the terms “activities or measures” as referring to “decisions on specific activities, such as permits, licences, permissions that have or may have an effect on the environment”. The Court of Appeal in Minch was of the view that the reference to “plans” and “policies” in article 3(1)(c) is significant, and suggest that the “measure” or “activity” in question must have “graduated from simply being an academic thought experiment into something more definite such as a plan, policy or programme – however tentative, aspirational or conditional such a plan might be – which, either intermediately or mediately, is likely to affect the environment” (paragraph 39). Hogan J went on to explain that this requirement for there to be a plan or something in the nature of a plan, curtails a potentially open-ended or indefinite right of access to documents (paragraph 41). If this were not the case, then virtually any information held by or for a public authority referring, either directly or indirectly, to environmental matters would be environmental information. This would run contrary to the CJEU’s judgment in Glawishnig (paragraph 21; see also Glawishnig at paragraph 25).
18. The CJEU in Mecklenburg stated at paragraph 20 of its judgment that “the use in Article 2(a) of the Directive of the term ‘including’ indicates that ‘administrative measures’ is merely an example of the ‘activities’ or ‘measures’ covered by the Directive”. It noted that “as the Advocate General pointed out in paragraph 15 of his Opinion, the Community legislature purposely avoided giving any definition of ‘information relating to the environment’ which could lead to the exclusion of any of the activities engaged in by the public authorities, the term ‘measures’ serving merely to make it clear that the acts governed by the directive include all forms of administrative activity”.
19. Barrett J remarked in RTÉ that “the European Court of Justice [in Mecklenburg] could not have taken a more expansive view of what comprises an administrative measure for the purposes of the 1990 directive” (paragraph 19). He also noted that Recital 2 of the current AIE Directive should be borne in mind when approaching case law, such as Mecklenburg, which is concerned with Directive 90/313/EEC, the predecessor to the current AIE Directive (RTÉ, paragraph 7). Recital 2 of the AIE Directive provides as follows:
“Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment initiated a process of change in the manner in which public authorities approach the issue of openness and transparency, establishing measures for the exercise of the right of public access to environmental information which should be developed and continued. This Directive expands the existing access granted under Directive 90/313/EEC…”
20. Barrett J considered the reference to the current AIE Directive having “initiated a process of change” to be noteworthy and concluded that “what had been in play over the course of the lifetime of [the previous AIE] directive and its more recent successor is an evolutionary process”, the consequence being that “one must approach the current directive as being not just expansive but increasingly so” (RTÉ, paragraph 8). He also stated that it was “difficult to conceive of how the Community legislature could have taken a more expansive approach to the scope of the concept of “environmental information”, having regard to Recital 10 of the current AIE Directive (RTÉ, paragraph 9).
21. That terms and conditions of the Forest Road Scheme outline that the Scheme “provides opportunities to forest owners to improve access to forests and facilitate forest management and the harvesting of timber”. It also outlines that “forest roads…provide additional biodiversity opportunities by increasing the amount of open space, forest edges and facilitating thinning which can open up the canopy”, that “increased light levels on the forest floor contribute to the development and enhancement of ground floor native plants” and that “the interface between the forest edge and the forest road provides many opportunities for biodiversity enhancement throughout the rotation”.
22. The Scheme is 100% Exchequer funded and its objectives are as follows:
23. It is therefore clear that the Forest Road Scheme is a measure, which brings with it a real and substantial possibility of impact on the environment. In the first instance, the provision of grants encourages the building of roads to increase forestry activity, which will change the landscape of forests by encouraging an increase in the construction of infrastructure such as bell-mouths, turntables, drains, culverts and bridges. In addition, the setting of conditions for the approval of forest roads and the need to satisfy the Department through submission of Forms 1 to 3, that the roads have been built in accordance with those conditions, encourages the construction of forest roads in compliance with approved criteria. In that regard, paragraph 7.6 of the Terms and Conditions document notes that:
“Payments shall be made in respect of applicants who make valid applications prepared by a registered forester and who have constructed their forest road in accordance with the pre-approval and in compliance with:
24. The Terms and Conditions also provide that the Department is entitled to attach further conditions to the construction of a forest road and to withhold or redeem payment as a penalty for failure to comply with any conditions attached.
25. In addition, the Scheme is, in part, designed to protect the environment by increasing the biodiversity value of commercial forests. The environmental impact of the Scheme is admitted by the Department itself on the webpage for the Forest Road Scheme (https://www.gov.ie/en/service/8ca495-forest-road-scheme/) which notes that “forest roads…improve the environmental value of forests by increasing edge effects”. I am therefore satisfied that the Forest Road Scheme is a measure likely to affect the environment and one designed to protect it.
26. Even in the absence of the Scheme, the construction of a forest road is an “activity” which carries with it a real and substantial possibility that it will affect the environment as it involves a significant change to the character of the area and facilitates increased access to that area which in turn is likely to have an impact on the environmental elements and factors associated with the area.
27. The next question to consider is whether the information requested by the appellant is information “on” the Forest Road Scheme. Again RTÉ (see paragraph 52) endorses the approach set out in Henney. The Court in Henney found that “information is ‘on’ a measure if it is about, relates to or concerns the measure in question” but “simply because a project has some environmental impact, it does not follow that ‘all information concerned with that project must necessarily be environmental information” (see paragraphs 37 and 45). The Court found that:
“…the way the line will be drawn is by reference to the general principle that the Regulations, the Directive and the Aarhus Convention are to be construed purposively. Determining on which side of the line the information falls will be fact and context-specific. But it is possible to provide some general guidance as to the circumstances in which information relating to a project will not be information on the project for the purposes of section 2(1)(c) because it is not consistent with or does not advance the purpose of those instruments.
My starting point is the recitals to the Aarhus Convention and the Directive, in particular those set out at para 15 above. They refer to the requirement that citizens have access to information to enable them to participate in environmental decision-making more effectively, and the contribution of access to greater awareness of environmental matters, and eventually, to a better environment. They give an indication of how the very broad language of the text of the provisions may have to be assessed to provide a framework for determining the question of whether in a particular case information can properly be described as on a given measure” (paragraphs 47 and 48).
28. Henney suggests that, in determining whether information is “on” the relevant measure or activity, it may be relevant to consider the purpose of the information such as why it was produced, how important it is to that purpose, how it is to be used, and whether access to it advances the purposes of the Aarhus Convention and the AIE Directive (paragraph 43; see also ESB at paragraph 42). Information that does not advance the purposes of the Aarhus Convention and AIE directive may not be “on” the relevant measure or activity (Redmond, at paragraph 99). As the court noted in Henney, the recitals of both the Aarhus Convention and the AIE Directive refer to the requirement that citizens have access to information to provide for a greater awareness of environmental matters, to enable more effective participation in environmental decision-making and to facilitate the free exchange of views with the aim that all of this should lead, ultimately, to a better environment. They give an indication of how the very broad language of the text of the provisions in the Convention and Directive may have to be assessed and provide a framework for determining the question of whether, in a particular case, information can properly be described as on a given measure (see Henney, paragraph 48 and RTÉ, paragraph 52). Finally, as the High Court noted in ESB, information that is integral to the relevant measure or activity is information “on” it (see paragraphs 38, 40 and 41) while information that is too remote from the relevant measure or activity does not qualify as environmental information (see paragraph 43).
29. The guidance provided by the Courts therefore suggests that there is a sliding scale, with information integral to a measure at one end (in the sense that it is quite definitively information “on” a measure) and information considered too remote from the measure on the other end (in the sense that it is not). The example referred to in Henney noted that a report on PR and advertising strategy might be considered information “on” the Smart Meter Programme “because having access to information about how a development is to be promoted will enable more informed participation by the public in the programme”. However, information relating to a public authority’s procurement of canteen services in the department responsible for delivering a road project would likely be considered too remote (see paragraph 46). Henney also makes it clear that the definition should be applied purposively having regard to matters such as “the purpose for which the information was produced, how important it was to that purpose, how it is to be used and whether access to it would make the public better informed about, or to participate in, decision-making in a better way” (paragraph 43).
30. The Department’s internal review indicated that “the Form 2 application and related material” was not environmental information and that “all other relevant documentation has been released”. The Department was asked by my Office to provide a copy of all of the records which were the subject of the appellant’s request. The documents provided by the Department to this Office appear to be those contained on the files maintained in respect of each forest road sought by the appellant. They include Forms 1, 2 and 3, various checklists, maps and invoices, tax clearance certificates, statements of costs, forest road specifications, referrals to and responses from other public authorities, inspector certifications and correspondence with applicants or those acting on their behalf.
31. The inspector certifications, approval letters and certain maps and correspondence with public authorities were provided to the appellant, according to the Schedules supplied to my Office by the Department. Some information was redacted from the documents provided with the Department relying on article 8(a)(i) of the Regulations. The remaining information appears to have been refused on the basis that it was not “environmental information” within the scope of the Regulations.
32. Having reviewed those documents, I am satisfied that all of them satisfy the definition of “environmental information” contained at article 3(1) of the Regulations as they are all information “on” the Forest Road Scheme which is a measure within the meaning of paragraph (c) of that definition.
33. In the first instance, the Form 2 requested by the appellant is information “on” the Forest Road Scheme. The purpose of the Form 2 is to provide the Department with the details necessary to process and consider an application to receive the first instalment of a cost-based Forest Road Grant following the construction of an approved Forest Road in accordance with the terms of such approval. That approval is granted following the submission of a Form 1, which sets out details of the ownership and use of the proposed site, its location and area, details of afforestation grants and felling licences associated with that site, the planting years of plantations, details of the proposed forest road and single consent and environmental considerations.
34. A Form 2 requires an applicant for a grant under the Forest Road Scheme to provide details of the contractors used, the name and address of the company to which the grant is mandated, the completion date of the works carried out, the cost of the works carried out (including detail on the material used and the road type). It also sets out that an applicant must provide the following documents along with the Form 2 as part of their claim: a location map, a road map, a biodiversity map, invoices for all direct costs incurred, tax clearance details for the applicant and all contractors employed and, where appropriate, a valid mandate.
35. Both Form 1 and Form 2 therefore contain information that is integral to the Forest Road Scheme. Without the information provided in those forms, the Department would not be in a position to determine whether it is appropriate to grant approvals for the construction of forest roads, whether it is necessary to attach conditions to that approval and whether grants should be paid out in connection with the construction of the forest road, on the basis it has been built in accordance with the approval granted and whether all other conditions necessary for payment of the first instalment have been satisfied. Access to information of the type contained in Forms 1 and 2 advances the purpose of the Aarhus Convention and the AIE Directive as it enables the public to be better informed as to the operation of the Forest Roads Scheme thus enabling more informed participation in debate as to its wider impact. Access to such information would thus “make the public better informed about, or to participate in, decision-making in a better way” as referenced in Henney at paragraph 43.
36. All of the information that is required to accompany a Form 1 or 2 (and any supporting documentation which does in fact accompany those Forms) is information “on” the Forest Roads Scheme for the same reason. Access to this information, among other things, not only allows the public to see the level of scrutiny being adopted by the Department when assessing such applications, whether evidence exists to demonstrate that grants are appropriate in the circumstances and whether the conditions for the payment of such grants are being satisfied. It also allows the public to better understand the conditions in place and to appreciate how they operate in practice thus allowing more informed participation in debates on their overall impact and effectiveness.
37. The same is true of a Form 3, which is an application to receive the second instalment of the cost-based Forest Road Grant following the construction of an approved Forest Road in accordance with the terms of such approval. The Form 3 contains information on the area of the relevant forest, which has been thinned/harvested and is accompanied by a map identifying those areas. It also contains certain confirmations with regard to compliance with environmental guidelines and conditions attached to applicable licences and approvals. Again, I consider that access to such information enables greater public awareness of the operation of the Forest Road Scheme in turn facilitating greater and more informed participation in debate relating to the environmental decision-making processes relating to that Scheme.
38. All of the above information is also information “on” the construction of the relevant road as it enables the public to be better informed about matters such as the size of the road, its location and the costs associated with its construction.
39. Similarly, correspondence with other public authorities in relation to the construction of the relevant forest road is information “on” the Forest Road Scheme as well as information “on” the building of forest roads generally. While I must be careful not to disclose withheld information in my decision meaning the detail I can give about the content of records is limited, the correspondence in this case sets out observations by the relevant public authority in relation to the construction of the relevant forest road. Those observations are information which would “make the public better informed about, or to participate in, decision-making in a better way” as referenced in Henney (paragraph 43). It is also interesting to note that the Department has provided the appellant with correspondence with the Department of Arts, Heritage and the Gaeltacht in relation to one forest road application but has refused correspondence with two local councils in relation to other applications on the grounds that these are not environmental information.
40. I believe all of the information I have reviewed is information “on” the Forest Road Scheme and is therefore “environmental information” within the meaning of article 3(1) of the Regulations. The Department is therefore not entitled to refuse access to that information on the basis that it does not come within the scope of the AIE Regulations.
41. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision and remit the matter to the Department for processing in accordance with the requirements of the AIE Regulations.
42. 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.
Commissioner for Environmental Information