Whether Coillte’s decision on this AIE request, made on multiple grounds, was justified
06 June 2019
On 1 August 2018 the appellant submitted an AIE request to Coillte saying:
“I note that in 2005, Coillte had a number of co-development agreements for the development of windfarms. These agreements were with entities such as ESB, Airtricity, SWS/South Western Services, Treasury Holdings etc.
I am requesting the following information under the Access to Environmental Information Regulations.
1. A copy of these co-development agreements for windfarms.
2. A copy of correspondence between Coillte and windfarm developers which resulted in the Midlands Wind export project (including the minutes of meetings, emails/letters/memos, criteria for suitable sites, reports).
3. A copy of the Cost-Benefit Analysis for the Cullenagh Wind farm project in Laois.
4. A copy of all correspondence between Coillte and ESB/EirGrid regarding connections to the Grid for wind farms on Coillte land in County Laois.”
Coillte replied on 21 August 2018, saying that the request was too general and inviting a more specific request in accordance with article 7(8) of the AIE Regulations. That subarticle provides:
Where a request is made by the applicant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request, invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request.
Coillte offered to provide assistance and it asked the appellant to clarify aspects relating to her request by specifying the time period, windfarms, developers and developments to which the request related. It also said it was extending time due to the volume and/or complexity of the information sought (in accordance with article 7(2)(b)). It undertook to issue a decision by no later than 28 September 2018, although this commitment was clearly dependant on the appellant clarifying the request so that it was no longer, in Coillte’s view, “too general” to process.
The appellant responded on 22 August 2018, saying that, since parts 1 and 3 of her request were already specific, she presumed that Coillte’s request for clarification applied only to parts 2 and 4. Accordingly, she clarified those parts as follows:
“Clarified 2. A copy of correspondence between Coillte and windfarm developers which resulted in the Midlands Wind Export Project (e.g. developers may include Element Power, SWS, SSE, Mainstream Renewables, Bord na Mona, Airtricity, etc, but may also involve others acting with or on behalf of these companies such as consultants or subsidiaries of these). Correspondence = including the minutes of meetings, emails/letters/memos, criteria for suitable sites, reports). Suggested date range: 01 January 2006 to 31 December 2013.”
“Clarified 4. A copy of all correspondence between Coillte and ESB/EirGrid (or others acting on their behalf) regarding connections to the Grid for wind farms on Coillte land in County Laois. Suggested date range: 01 January 2006 to 31 December 2013.”
She said she was unable to specify particular windfarm developments and submitted that Coillte was better placed to identify the relevant windfarms. She submitted that the same applied to the Midlands Wind Export Project and wind farms on Coillte land in County Laois.
Coillte processed the request and issued a decision on 28 September 2018.
It refused part 1 of the request on the basis that the co-development agreements “do not fall within the definition of environmental information”. It added that refusal would also be justified under article 9(1)(c) of the AIE Regulations because disclosure of those agreements would adversely affect the commercial or industrial confidentiality of the negotiated contract terms with the relevant parties.
It part-granted part 2 of the request by providing access to 13 records, but without mentioning that it had first redacted those records. It refused to provide access to an unstated number of other records on the grounds of articles 9(1)(c) and 8(a)(ii).
It refused part 3 of the request on the basis that the requested cost-benefit analysis “does not fall within the definition of environmental information”. It added that refusal would also be justified under article 9(2)(d) of the AIE Regulations because the cost-benefit analysis had not yet been finalised and added that Coillte would be unable to say when it would be finalised until all necessary planning consents had been achieved.
It part- granted part 4 of the request by providing access to two records. It refused access to an unstated number of other records on the grounds that “certain correspondence does not fall within the definition of environmental information” and because “disclosure of this correspondence” would adversely affect commercial or industrial confidentiality.
On 23 October 2018 the appellant asked for a full internal review. She said it appeared that “a full search for applicable records may not have been carried out”. She also said that “the decision and redactions were fundamentally flawed” and no “public interest test had been carried out”. She provided examples of what she regarded as the shortcomings of the decision. Amongst these, she said:
· “No reasons were given for the redaction of information in the released documents.
· A wind farm is clearly an activity that will impact the environment. An agreement to develop a windfarm is information on that activity and it is clearly environmental information.
· The definition of environmental information clearly states that a cost benefit analysis is environmental information.
· As the development of the Cullenagh wind farm has commenced, the costs benefit analysis for it had obviously been sufficiently completed.”
Coillte issued a review decision on 21 November 2018. This decision:
· Affirmed the original decision on part 1 of the request, for the same reasons plus two new grounds: articles 8(a)(ii) and 8(a)(iv).
· Affirmed the original decision on part 2 of the request, for the same reasons plus one new ground: article 8(a)(iv).
· Varied the original decision on part 3 of the request by omitting its earlier statement that the requested cost-benefit analysis does not fall within the definition of environmental information and by relying solely on a finding that “no cost-benefit analysis has in fact been completed”.
· Varied the original decision on part 4 of the request by releasing some additional information, while continuing to refuse access to the remaining information on the ground that “certain” information is not environmental information and on the ground of article 9(1)(c).
As in the original decision, the review decision did not mention or explain the redactions made to released records.
The appellant appealed to my Office on 21 December 2018, saying:
· “Part 1 of my request seeking co-development agreements was refused.
· Part 2 of my request was refused.
· Documents relating to other parts of my request which were released were inappropriately redacted.
· The schedule of documents only lists the documents released and not the full results of the search.”
In order to be satisfied that an AIE request was justifiably refused in whole or in part, I have to be able to satisfy myself in relation to the following:
1. That I understand the request sufficiently to be able to distinguish information that was asked for from information that was not asked for.
2. That I understand the public authority’s positon with regard to:
a. The identification of all relevant environmental information that was held.
b. The identification of all relevant environmental information that was withheld.
c. The reason or reasons why the withheld information was withheld.
In the current case I find that I am unable to be satisfied that Coillte’s part-refusal was justified. This is due to numerous difficulties that were created by the parties. Although I am not a first-instance decision-maker in this process, my investigator went to great lengths to try to clarify the request and Coillte’s decisions. Arguably, my Office should not have to use its resources in resolving the kind of difficulties encountered in this case.
The first difficulty arose from the wording of part 2 of the AIE request. Initially this sought:
“A copy of correspondence between Coillte and windfarm developers which resulted in the Midlands Wind Export Project (including the minutes of meetings, emails/letters/memos, criteria for suitable sites, reports)”.
Coillte, rightly in my view, told the appellant that the request was too general and invited a more specific request. The appellant clarified it to a degree, by saying that what she wanted was:
“A copy of correspondence between Coillte and windfarm developers which resulted in the Midlands Wind export project (e.g. developers may include Element Power, SWS, SSE, Mainstream Renewables, Bord na Mona, Airtricity, etc, but may also involve others acting with or on behalf of these companies such as consultants or subsidiaries of these). Correspondence = including the minutes of meetings, emails/letters/memos, criteria for suitable sites, reports). Suggested date range: 01 January 2006 to 31 December 2013.”
Coillte appeared to accept that following this clarification, the request was no longer “too general” and it went on to process the request. In my view, this was a mistake since this part of the request remained too general. Coillte later confirmed to my investigator that it had no knowledge of any project called the “Midlands Wind Export Project”. My investigator asked the appellant for assistance in this regard. In an email, he explained:
“I would therefore appreciate if you could provide me with solid information (perhaps internet links to credible sources) on the Midlands Wind Export Project. I expect to have to form a view (for the purpose of being in a position to brief the Commissioner) as to whether there was such a thing as a “Midlands wind export project” and whether it should be regarded as a “measure likely to affect elements of the environment”. To my mind a “measure” doesn’t exist until it is formally adopted (or, perhaps, formally proposed)… I have been unable to find information of this type on the internet”.
The appellant undertook to assist my investigator in this regard. However, in the event, no assistance was forthcoming. For Coillte’s part, it said that it had presumed that the appellant was referring to two other projects. However, it did not ask the appellant to confirm that this presumption was correct. I did not consider that it would be appropriate for me to conduct my review on the basis of such a presumption.
More serious difficulty was created by the use, in this part of the request, of the words “which resulted in”. While my investigator engaged with the parties in attempt to establish what those words were intended to mean or taken to mean, he did not obtain any satisfactory answer. The appellant did not explain what she meant and Coillte explained that it had read those words as if the words “which relate to” had been used in their place. The AIE Regulations require AIE requests to state, in terms that are specific as possible, the environmental information that is sought. I have taken this to mean that the Regulations require applicants to frame their requests as specifically as they can. It follows that public authorities must have due regard to the specific words chosen by applicants and seek clarification if it is not clear what was asked for. Coillte did not do this.
As a consequence of Coillte interpreting this request as seeking information beyond what was asked for, in relation to a project that does not appear to have ever had any real existence, I had no means of distinguishing correspondence which resulted in the specified project from correspondence which did not have that result.
The second difficulty lay in the large number of records associated with this case. To some extent that was a result of Coillte reading the request as asking for more than it actually asked for. It was also a result of the “trawling” nature of parts 2 and 4 of the request. AIE requests should clearly state the environmental information that is sought. It is unhelpful when requesters ask for a wide range of records instead of stating what environmental information they wish to obtain. AIE is about access to environmental information and not about access to records per se.
The combined result of the wording of the request and Coillte’s interpretation of it, was that Coillte’s identification of relevant information was incomplete. Coillte explained how it conducted its search in the following terms:
“… relevant files were extracted from the Coillte database and a consideration of individual documents was undertaken with a view to considering their potential relevance to various parts of the request. A large quantity of documentation exists in respect of the various projects and developers specified in the request. In order to demonstrate the breadth of the search undertaken, Coillte has attempted to provide all documents of possible relevance to each part of the request”.
That was an appropriate first step. However, responding properly to this request required the taking of a second step, to filter the potentially relevant records in order to identify with precision the information that was actually as distinct from potentially relevant. Any such filtering would have to have regard to the wording of the request. In the current case, in addressing part 2 of the request potentially relevant records needed to be filtered in order to identify information that met a number of criteria.
Criterion 1: The information had to be contained in “correspondence between Coillte and windfarm developers”. Information in internal Coillte correspondence or correspondence between Coillte and anyone other than a windfarm developer would be filtered out.
Criterion 2: Such correspondence must have somehow “resulted in” a particular project. Coillte needed to form a view as what those words were intended to mean and the best way would have been to have simply asked the appellant. Coillte had no discretion to disregard the wording used in the request and it ought to have known that to read the request as if the appellant had instead written “related to” would distort its meaning and result in the identification of many more records. While Coillte was entirely free to give a requester more information than it was asked for, it was not entitled to regard information that was not asked for as falling within the scope of the request and then to refuse access. Coillte ought to have known that if such a decision were appealed, I would have to confine my considerations to information that was both asked for and withheld.
Criterion 3: The particular project that the requested information must have “resulted in” was described by the appellant as the “Midlands Wind Export Project”. As Coillte was unaware of a project of that name, it should have informed the appellant of that fact and asked for clarification.
Coillte failed to take the required second step. It did not process this part of the request sufficiently in order to separately identify the information that fell within the scope of the request.
The next difficulty is that Coillte did not satisfactorily identify for me all of the environmental information that it withheld. It released redacted documents but did not provide my Office with un-redacted copies of the same documents. The schedule of records given to my Office simply listed those records as “granted” without referring to any redactions.
There was a lack of clarity as to the justification of Coillte’s statement that it held just two records captured by part 1 of the request. In its submission it argued that
“disclosure of co-development agreements for the development of wind farms with entities such as Airtricity, Greenwire Limited, Element Power, Mainstream Renewable Power Energy Bridge Limited were refused on the basis that disclosure would also adversely affect the interests of persons who voluntarily supplied the information”.
That suggested that Coillte held more than two such agreements. This was at odds with Coillte’s insistence that it held copies of just two such agreements. In response to questions about this from my investigator, Coillte referred to an earlier reference by it to “historical co-development agreements” (i.e. agreements other than the two that it acknowledged that it now holds) and said that these:
“related to co-development agreements that Coillte would have entered into many years ago in respect of projects which were not since developed and as such those agreements fell away. As a result of this, Coillte does not hold copies or records of such historical agreements on its files”.
My investigator put it to Coillte that he took this to mean that although Coillte had in the past entered into more than two co-development agreements for windfarms, when it searched for information relevant to part 1 of the AIE request it found only two and concluded that it does not hold any more such records. It would follow that such previously held records must have been either destroyed or lost, because they are no longer held by Coillte. Coillte did not dispute that conclusion. I would expect Coillte to have been able to say if it had destroyed such “historical agreements” and, if it had not destroyed them, to have been able to state a conclusion that any copies of such agreements must be presumed to have been lost if a search of Coillte’s “historical agreements” failed to locate them. Coillte did not say either. It offered no explanation for the absence of copies of what it called “historical agreements”. In particular, it did not state that it had conducted a search of its archives.
Even in relation to the two agreements that Coillte said it held, there was confusion. Coillte submitted that as certain agreements “were only entered into in 2003 and were not entered into in respect of the Midlands Wind Export Project, they were not therefore considered to be relevant to the request in Coillte’s view”. There was absolutely no basis for that view. Part 1 of the request sought copies of co-development agreements (for windfarms) held by Coillte in 2005. It was not confined to, or even expressly related to, a “Midlands Wind Export Project”. Neither was it affected by the “date range” clarification given by the appellant in relation to other parts of her request.
There was a lack of clarity about whether Coillte withheld any record captured by part 3 of the request. Its schedule of records did not list any record captured by this part as having been refused. However, its submission stated that its refusal to provide this information was justified on the ground of on article 9(2)(c), which provides that “a public authority may refuse to make environmental information available where the request concerns material in the course of completion, or unfinished documents or data”. It added that “the said cost-benefit analysis has not yet been finalised by Coillte in relation to the Cullenagh Wind Farm Project”. The appellant argued that, fully completed or not, Coillte’s analysis must have been sufficiently complete for it to have been relied on. As Coillte did not provide my Office with any part-completed document(s) to consider in relation to this part of the request, I was not in a position to assess the appellant’s argument.
That last point leads me to the difficulties that arose concerning the clarity of the reasons why each piece of information was withheld. Coillte’s position relied on multiple grounds but without specifying which argument applied to which information.
· It maintained that “certain” information in the withheld records is not environmental information, but did not identify that particular information for me.
· It cited article 8(a)(ii), which provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the interests of any person who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information.
o Did not identify such information for me.
o Did not identify who had provided it.
o Did not say if it had sought consent from such third parties or in the absence of consent, information about how the third parties believed (if at all) that their interests would be affected by disclosure.
· Coillte cited article 8(a)(iv), which provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect, without prejudice to paragraph (b), the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts); or (b) to the extent that it would involve the disclosure of discussions at one or more meetings of the Government, is prohibited by Article 28 of the Constitution. I noted, however, that:
o Coillte submitted that disclosure of the withheld information would adversely affect the confidentiality of information that is exempt under sections 35 and 36 of the Freedom of Information (FOI) Act 2014. This argument is off-point since it is the confidentiality of proceedings rather than of information per se that is at issue under this ground. Coillte went on to submit that “in light of the protections afforded in Irish and EU law to the confidentiality of proceedings of public authorities, Coillte submits that its decision to refuse [the] request is justified under article 8(a)(iv)”. It did not, however, cite any law other than the FOI Act.
o Coillte did not make clear what “proceedings” it had in mind.
o Coillte did not identify for me the information that it believed, if disclosed, would adversely affect the confidentiality of proceedings.
· Coillte cited article 9(1)(c), which provides that a public authority may refuse to make environmental information available where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest. Coillte submitted:
“In light of the protections afforded in Irish and EU law to commercial and industrial confidentiality, including those provided for it in the FOI Act, Coillte submits that its decision to refuse [the] request is justified under article 9(1)(c)”.
However, apart from a reference to the FOI Act, it did not identify the Irish or EU law that applied to the confidentiality of any of the withheld information. Moreover, it did not identify the particular information to which it believed this ground applied.
· Coillte cited article 10(3), which provides that a public authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. In this regard, Coillte says that it considered the following factors in the course of weighing the public interest:
· “The public interest in individuals exercising their rights under the AIE Regulations to access environmental information”. This “factor” has no bearing on whether a particular AIE request should be granted. The appellant had exercised her right to ask for environmental information. Whether she was entitled to receive it was the issue to be determined.
· “The public interest in members of the public having access, to the greatest extent possible, to environmental information to which they are entitled to under the AIE Regulations”. This is meaningless because the whole object of considering an AIE request is to determine whether a requester is entitled to the access requested.
· “The public interest in State, State-owned and commercial entities being able to pursue legitimate interests without fear of suffering commercially as a result of disclosure of sensitive information”. Public authorities have to be mindful at all times that they may be required by the AIE Regulations to provide the public with access to environmental information even when it is sensitive information.
· “The public interest in preventing the disclosure of internal communications of public authorities which is contrary to the public interest”. This was akin to listing the public interest in protecting the public interest. It added nothing of substance to the list of factors to be considered. The AIE Regulations require the weighing of the public interest in disclosure against the interest served by refusal.
· Coillte noted that the appellant’s “intended use of the information is unknown and it cannot be guaranteed that she will not put the information into the public domain, as the AIE Regulations place no express restriction on the subsequent uses to which environmental information may be put. In this regard, release of the information into the public domain could adversely affect the competitive market position of both Coillte and the developers concerned”. This is not a separate factor in favour of refusal. Concerns of this nature are addressed by the grounds for refusal provided in the Regulations, in this case, article 9(1)(c). Once a public authority has established that a ground of refusal applies, it must then proceed to assign a weight to the interest served by that ground and then weigh that interest against the public interest in disclosure.
· Coillte did not expressly address article 10(3), which 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”.
Article 9(2)(a) permits the refusal of an AIE request where it is manifestly unreasonable having regard to the volume or range of information sought. Article 9(2)(b) permits the refusal of an AIE request where, after taking account of article 7(8), it remains formulated in too general a manner. Article 7(5) sets out what a public authority should do when it finds that some or all of the requested information is not held by or for it. These provisions clearly show that the principles of reasonableness and proportionality permeate and underpin the AIE Regime. The AIE Regime does not require a public authority to do anything unreasonable or disproportionate. Neither does it require my Office to devote unreasonable or disproportionate resources to reviewing cases where the parties themselves have not been sufficiently clear on exactly what was asked for and exactly what information was withheld in response, and why.
Coillte submitted that “cumulatively, Coillte considers that these grounds justify its decision to refuse certain parts of [the] request”. In conducting reviews, I must be satisfied that each ground of refusal is justified on its own merits before considering cumulative effects. To do that I must know which ground applies to which information and that was not made sufficiently clear in this case.
Having carried out a review under article 12(5) of the AIE Regulations, I am not satisfied that Coillte adequately responded to the AIE request and that its part-refusal was justified. I therefore annul its decision and require it to process the request afresh, having first contacted the appellant to confirm that she wishes this case to proceed.
The starting point should be engagement between the parties with the aim of ensuring that Coillte properly understands what it is being asked for. Coillte should then unambiguously clarify whether or not it holds any of the environmental information being sought. It would be helpful, in that regard, if the appellant would clarify her request further in order to specify the environmental information (rather than the records) that she requires, bearing in mind articles 9(2)(a) and (b). If Coillte determines that it does not hold environmental information that is requested, it should inform the applicant of that fact as soon as possible in accordance with article 7(5) of the AIE Regulations.
Appeal to the High Court
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