On 12 November 2018, the appellants submitted an AIE request to Coillte asking for the following information “regarding Coillte’s proposed windfarm at Cullenagh, County Laois:
1. Details of the cost benefit analysis (or other economic analysis as applicable) used to underpin the Cullenagh Co. Laois wind farm project.
2. Details of all objectives/key drivers/reasons upon which the project is based or is designed to facilitate (including short, medium, and long-term objectives).
3. A statement explaining whether there are different versions of the business case. In the instance that there are differing versions, I am requesting that all versions are supplied.
4. All documentation that was submitted to Coillte Board to underpin the project.
5. A copy of the decision of the Board to proceed with the project.
6. A copy of all Board meeting minutes discussing the project.”
Coillte acknowledged receipt of the request on the same day. Four days later Coillte informed the appellants that it considered the request to have been made in too general a manner and it invited them to make a more specific request. In particular, it invited clarification of the scope of what it called “requests numbered 1, 2, 3 and 4”, which I will refer to as parts 1, 2, 3 and 4 of the AIE request.
The appellants replied, offering the following modified version of the request:
1. “A copy of the cost benefit analysis (or other economic analysis if this exists) used to underpin the Cullenagh Co. Laois wind farm project.
3. A copy of the business case for the Cullenagh wind farm project, Co. Laois. (In the instance that there are differing versions, I am requesting that all versions are supplied.)
4. All documentation that was submitted to Coillte Board regarding the Cullenagh wind farm project, Co. Laois.
5. A copy of the decision of the Board to proceed with the project.
6. A copy of all Board meeting minutes discussing the project.”
They added that “A business case is usually* the key document of record that integrates all of the various elements required to support a decision on the merits of a proposal and is expected to include Objectives, Scope, Feasibility, Options Appraisal (Economic / Financial / Risk Analysis), planning and design issues and a final recommendation”.
(*The appellants were not confining this part of their request to a business case which meets this description in full. The description simply set out what the appellants expected a business case to include.)
Coillte appeared to be satisfied with the appellants’ clarification and, on 11 December 2019, it gave notice of its decision, which was to refuse the request in its entirety. It refused access to information held in relation to parts 1, 3, 4, and 6 on the basis of a finding that it was not environmental information. It refused part 5 on the basis that the Board had not made any decision to proceed with the project. In addition, the decision said:
· In relation to part 1 of the request:
o “Disclosure of the … cost benefit analysis may be refused on the basis that it comprises information in the course of completion and/or unfinished documents or data for the purposes of article 9(2)(c) of the AIE Regulations. Coillte has not yet finalised the cost benefit analysis for the project and the estimated time needed for completion will be better understood once the project has achieved all the necessary planning consents”.
o “Disclosure of the cost benefit analysis, once completed, would adversely affect commercial or industrial confidentiality pursuant to article 9(1)(c)”.
· In relation to part 3 of the request:
o “Coillte has not yet finalised the business case … and the estimated time needed for completion will be better understood once the project has achieved all the necessary planning consents”.
o “Disclosure of the business case, once completed, would adversely affect commercial or industrial confidentiality pursuant to article 9(1)(c)”.
· In relation to part 6 of the request:
o “Disclosure … would adversely affect commercial or industrial confidentiality such that access to this information may be refused under article 9(1)(c)”.
On 10 January 2019 the appellants requested an internal review of that decision, saying that Coillte had not applied the Regulations correctly. They said:
· “Cost benefit /economic analysis clearly is environmental information. See AIE Regulations definitions, (e).
· The Board clearly did make decisions to proceed with the project, e.g. Coillte decided to proceed with design of the project, applications for planning permission, construction, court case, etc.
· All information requested is information ‘on’ the Cullenagh wind farm project, i.e. the very definition of environmental information.
· Documents which are draft / incomplete/ in the course of completion are not outside the Regulations yet Coillte are treating them in this manner.
· Commercial/ industrial confidentiality has not been demonstrated, no reasons provided.
· No public interest tests conducted.
· No schedule of documents provided.”
Coillte later complained that it did not receive this request because of an error in the email address to which it was sent. The appellants accept that they made this mistake, but pointed out that they had also sent a copy of the request to email@example.com. Coillte had itself used the latter email address when sending emails to the appellants in relation to this matter. I am therefore satisfied that Coillte received the request on 10 January 2019. I accept that the Coillte officer who deals with AIE reviews did not receive the review request on 10 January 2019 and that this contributed to the appellants not receiving a review decision within the statutory timeframe. However, the fact remains that the request for a review was received by Coillte on 10 January 2019 and this entitled the appellants to receive a decision by 9 February 2019 at the latest. Since they did not receive a decision by that date, they acquired the right to appeal to my Office, which they exercised on 23 February 2019.
Coillte set out its position in a submission to this Office on 5 April 2019 and sent a copy of the same document to the appellants. It also provided a schedule of records. My investigator sought clarification on some aspects of that position and Coillte provided a revised and clarified position to my Office on 20 September 2019. At the request of my investigator, it sent a copy of the same document to the appellant. The following is a summary of Coillte’s revised position on each part of the request:
Part 1: Coillte accepts that a cost-benefit analysis “could be” environmental information, but denies having conducted any cost-benefit analysis in this case. Its position is therefore that it does not hold information meeting this part of the request.
Part 3: Coillte accepts that a business case “could be” environmental information, but denies holding a business case for this project.
Part 4: Coillte acknowledges that it holds four documents (records 1–4) meeting this part of the request Coillte accepts that these records “could be environmental information”, but, “without prejudice to this”, maintains that withholding this information is justified under articles 8(a)(iv) and/or 9(1)(c).
Part 5: Coillte accepts that a decision of the Board to proceed with the project “could be” environmental information but it denies that such a decision has yet been made.
Part 6: Coillte acknowledges holding one record meeting this part of the request (record 5) and accepts that such information “could be” environmental information. It maintains that, “without prejudice to this”, withholding this information is justified under articles 8(a)(iv), 9(1)(c) and 9(2)(d).
Coillte also informed my Office that, after this appeal was initiated, it identified a number of additional documents falling within the scope of parts 4 and 6 of the request. It said:
“These were not identified previously and therefore Coillte has not made any first instance or effective decision in their regard. Coillte is of course willing to make a decision on these documents in due course, in accordance with any decision of the Commissioner to remit the matter to it”.
My investigator told Coillte that a number of specific documents appeared to be missing and that he expected the following to be held relation to parts 4 and 6:
· A copy of a “decision item” document which (it appeared) would have been submitted to the Board prior to its meeting on 25 July 2013.
· The minutes of the Board meetings which took place on 31 July 2014, 27 January 2016, 7 April 2016 and 28 April 2016.
Coillte confirmed that those records are amongst the 11 records recently identified. As it is not my role to make first instance decisions, my investigator did not ask for copies of these additional records and I did not make a decision on access to those records.
In carrying out my review I had regard to the submissions made by the appellants and Coillte. I also 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’); and the relevant jurisprudence of the courts.
Scope of review
I identified two issues:
1. Whether Coillte was justified in refusing parts 1, 3 and 5 of the request on the ground that it did not hold the requested information.
2. In relation to records 1–5 (i.e. those identified and considered by Coillte in relation to parts 4 and 6 of the request):
(a) Whether they constitute or contain environmental information.
(b) If they do, whether I should require Coillte, in the light of its article 8(a)(iv), 9(1)(c) and 9(2)(d) arguments, to release any or all of the withheld information.
Issue 1: Whether Coillte was justified in refusing parts 1, 3 and 5 of the request on the ground that it did not hold the requested information?
Coillte’s position is that it did not hold a business case, cost-benefit analysis, or a “Board decision to proceed with the project”.
The appellants’ position is that:
“The project had already started construction when the local community stepped in and highlighted that the project had not completed the planning process. Since then, our court case challenging this project on environmental grounds has been to the Court of Justice of the European Union and won. The Board of Coillte is responsible for major capital expenditure decisions such as the decision to proceed with the Cullenagh windfarm i.e. the project had been committed to by the Coillte Board by allowing construction works to start. The project had clearly moved beyond the stage of using the business case/costs-benefit analysis as a decision-making tool. The documents must have been sufficiently developed to allow the Board of Coillte to make that decision. Please see also the response from Coillte dated 11th December 2018 [i.e. Coillte’s original AIE decision] confirming the documents are held by Coillte but using every possible AIE angle to refuse access”.
“The Board clearly did make decisions to proceed with the project, for example, Coillte decided to proceed with design of the project, applications for planning permission, construction, court cases, etc.”
Each of the items requested required separate consideration and I began by considering the Board decision.
Board decision: My investigator asked Coillte what it understood this part of the request to mean. He asked if it was perhaps the case that a project such as this requires the approval of the Board at multiple stages and if Coillte regards only the final decision as the “decision to proceed”. Coillte confirmed that this is the case. It said that it processes such projects in two main stages: a development stage and a capital works stage. Coillte explained that it took this part of the request to be a request for a copy of a Board decision “to approve final investment in the project”.
While it would have been helpful if Coillte’s original decision-maker had explored the scope of this part of the request with the appellants before making a decision, they did not do so. Notwithstanding that, the request for an internal review made it clear that this part of the request sought copies of any and all Board decisions, i.e. decisions— in the words of the appellants— “to proceed with the project, for example … to proceed with design of the project, applications for planning permission, construction, court cases, etc.” Given that clarification, I do not consider that Coillte adequately answered this part.
My investigator asked Coillte if its Board had made a decision which authorised the commencement of physical works as part of this project. Coillte replied that it had: it had made an interim decision on some elementary stages of the project which it identified in a submission. Coillte emphasised that: “this interim Board approval did not include or comprise a decision for final investment in order to proceed with the Project. Therefore, Coillte’s genuine view was that this interim approval did not fall within the scope of part 5 of the request”.
Conclusion: I accept that Coillte did not hold a copy of a Board decision “for final investment” in the project. However, I find that it did hold (by its own admission) a copy of interim decision(s) to proceed with steps in the project. I am satisfied that such decision(s) fall within the scope of part 5 of the request. I therefore found that this part of Coillte’s decision was not justified and remains to be addressed by Coillte.
Cost-benefit analysis: It is striking to note that while Coillte’s original decision gave the clear impression that Coillte held a cost-benefit analysis for this project (albeit in an incomplete form), Coillte’s position now is that it does not hold and has never held such an analysis. Coillte apologized to my Office “for the confusion caused in this regard” and submitted that “the project will only be fully defined once the ongoing development phase is complete and the project can progress to the Board for approval of final capital investment supported with a completed business case”. Coillte submitted that “the project is not sufficiently advanced” to allow a cost-benefit or other economic analysis to be undertaken.
Conclusion: Having considered the submissions of the parties, I accept Coillte’s assurance that it did not hold a single cost-benefit analysis for the overall project and I therefore find that this part of its decision was justified.
Business case: It is similarly striking to note that while Coillte’s original decision gave the clear impression that it held a business case for this project (albeit in an incomplete form), Coillte’s position now is that it does not hold and has never held such records. Coillte apologized to my Office “for the confusion caused in this regard”. My investigator asked Coillte if it had advanced this project to the degree it did without a business case being produced and approved by its Board. Coillte confirmed that this was the case.
Having considered the submissions of the parties and the records provided to me by Coillte, I accept that Coillte did not hold a single business case for the entire project. However, I note that records 1–4 set out what is, in effect, the business case that was put to the Board when approval for various project steps was sought. I regard all such “Decision Item” documents pertaining to the Cullenagh wind farm project as business cases recommending the approval of steps in the project. It is clear that Coillte holds at least one other similar record, captured by this part of the request, which had not yet been considered by Coillte in responding to the AIE request.
Conclusion: I am satisfied that Coillte held a number of business cases for the project, albeit in a step-by-step format rather than as one overarching business case. I therefore find that its decision on this part of the request was not justified. Moreover, I note that the same records (i.e. records 1–4) contain elements of cost-benefit analysis for proposed project steps and I regard that information as being very much within the scope of the AIE request.
Issue 2(a): Whether records 1- 5 constitute or contain environmental information.
Coillte provided my Office with copies of records 1-5. Records 1-4 are complete documents, while record 5 is an extract from a larger document. Coillte’s Company Secretary assured my Office that the latter is the only part of that larger document (which records the minutes of a Board Meeting) that relates in any way to the project at issue. I accept that assurance.
I was satisfied that the information in records 1-4 falls within the scope of the AIE request and this appeal. Record 5, however, relates to multiple projects. It is a record of a Board decision made on 25 July 2013 concerning two other projects as well as the Cullenagh windfarm project and it specifies a sum of money that relates to all three projects together. I regard the information on the other projects as outside the scope of this appeal (since it was outside the scope of the AIE request). Similarly, since the sum of money specified in the record applies to all three projects, a reader cannot see how much of that sum applies to the Cullenagh windfarm. I therefore consider that the sum of money is out of scope. What remains of record 5, within scope, is a Board decision, without reference to other projects and without reference to a sum of money.
I noted that Coillte’s revised position no longer maintains that this information is not environmental information, but merely records that it “could be environmental information”. Since this appeal concerns specific records rather than hypothetical records such as ‘minutes in general’, it was unhelpful for Coillte not to have clearly stated a view as to whether or not the specific information that is now at issue constitutes or contains environmental information. The AIE Regulations require public authorities to make decisions on such matters.
I considered the question in the light of the definition of environmental information provided in article 3(1) of the AIE Regulations. That definition provides that “environmental information” means 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,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(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 paragraph (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 paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);
I first considered the information in records 1-4. I found no information which falls within categories (a), (b) (d) or (f) of the definition. Because a plan to build a windfarm is a measure that affects or is likely to affect “the elements and factors referred to in paragraphs (a) and (b)” of the definition, most notably landscape, I concluded that each of these records contains information on the Cullenagh windfarm plan that is environmental information falling within category (c) of the definition.
Next, I considered the information that I had identified as being within scope (see above) in record 5. It records a Board decision relating to the Cullenagh windfarm project and I was satisfied that it constituted environmental information falling within category (c) of the definition.
Conclusion: I found that the information in records 1-5 is environmental information.
I proceeded to consider whether I ought to require Coillte to provide the appellants with access to this environmental information.
Issue 2(b) Whether Coillte justified its withholding of the environmental information in records 1-5.
Coillte cited articles 8(a)(iv), 9(1)(c) and 9(2)(d) of the AIE Regulations as justification for its withholding of environmental information:
Article 8(a)(iv) 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”.
Article 9(1)(c) 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”.
Article 9(2)(d) provides that:
“a public authority may refuse to make environmental information available where the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure”.
Each of those articles is subject to article 10.
Coillte’s position in respect of articles 9(1)(c) and 8(a)(iv), as I understand it, can be summarised as follows:
· Disclosure would adversely affect commercial or industrial confidentiality in circumstances where such confidentiality is provided for in national or Community law “as per article 9(1)(c)”.
· Disclosure would adversely affect the confidentiality of Coillte’s proceedings where such confidentiality is protected by law, “pursuant to article 8(a)(iv)”.
Coillte has not identified any particular law which protects such confidentiality. The Regulations empower me to require the release of environmental information “where appropriate”. Given the circumstances of this case, including the confusion around what Coillte took the request to mean, and, in particular, the existence of 11 additional records which have yet to be considered by Coillte, I do not consider that it would be appropriate for me at this stage to require the release of the information in records 1–5.
Coillte gave an additional reason why the information in record 5 should not be released. It submitted that:
“the refusal to disclose this documentation is justifiable pursuant to article 9(2)(d) of the AIE Regulations, as it concerns internal communications of public authorities, taking into account the public interest served by the disclosure”.
I accept that the AIE request concerns Coillte’s internal communications. However, because Coillte refused just part 5 of the request on the ground, I considered whether I should regard that part as “concerning internal communications”.
The Minister’s Guidance on article 9(2)(d) says:
“Public authorities should bear in mind that the use of this exception is discretionary. It should not be resorted to as a simple expedient to protect all internal communications in circumstances where it would be unreasonable to do so”.
Clearly, most if not all information held by public authorities is at some stage communicated internally or intended to be communicated internally. It would be unreasonable to refuse access to all such environmental information held by a public authority on that ground, as it would defeat the aims of the Directive and Convention. Although the information in this case is simply a record of a decision, I am prepared to accept, in the context of it being recorded in the Board minutes, that it could concern internal communications. However, I am not satisfied that the information in record 5 is of the type intended to be provided for under article 9(2)(d), taking account of the public interest served by disclosure and the discretion provided for in that exception as highlighted in the Guidance referred to above. Even if I were satisfied that the information was capable of being protected under article 9(2)(d), I am satisfied that, under article 10(3), the public interest in the decision being made available in the interests of transparency would outweigh the public interest served by refusal.
I am cognisant of the fact that the decision at issue, as I explained earlier, is an interim decision by Coillte to proceed with steps on the project. In addition, I have already found that the information on other projects - including the sum of money - contained in the record identified is outside the scope of the request. I therefore conclude that refusal to provide access to the ‘in scope’ information in record 5 was not justified on the ground of article 9(2)(d).
Articles 8(a)(iv) and 9(1)(c) can justify refusal of AIE requests only when such refusal is compatible with the provisions of article 10, and article 10(3) requires the weighing of the interest served by refusal against the public interest in disclosure.
The appellants submitted the following public interest argument:
“It is absolutely in the public interest for Coillte to disclose any environmental information related to a decision it took to commence works on a site that is subject to the Habitats Directive despite being fully aware that it was likely that planning permission was required.”
I am not satisfied that Coillte has properly made out a case for withholding records 1–5 in reliance on articles 8(a)(iv) and 9(1)(c) in circumstances where there has been uncertainty around its treatment of the request and where it has acknowledged holding 11 additional records which it has not yet considered. Even if such grounds are properly made out so as to show that the exceptions are engaged in these circumstances, the necessary weighing of the competing interests in relation to the information is clearly best done when all of the information falling within the scope of the request can be considered together. In addition, my finding that the information at issue is environmental information has removed any doubts around Coillte’s tentative position in this regard.
Having carried out a review under article 12(5) of the AIE Regulations, I hereby vary Coillte’s decision by making the following findings:
· I find that Coillte was justified in refusing part 1 of the request on the ground that it did not hold the requested information but it was not justified in maintaining that it did not hold business cases or any Board decision to proceed with the project.
· I find that all interim decision(s) by Coillte’s Board to proceed with stages of the project fall within the scope of the request.
· I find that the withheld information in records 1–5 is environmental information.
· I find that records 1-4 include business case and cost benefit analysis information within the scope of the request.
· I find that the information in record 5 that relates to other projects is out of scope.
· I find that Coillte was not justified in refusing access to the in-scope information in record 5 on the ground of article 9(2)(d) of the AIE Regulations.
I expect Coillte to make a fresh decision on this request which will reflect these findings.
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.
In the interest of providing clarity for both parties, the following is how I expect Coillte to respond to this decision:
If Coillte decides not to appeal this decision to the High Court, it should:
1. Inform the appellants of that decision as soon as it is taken and ask if they want Coillte to proceed with the case.
2. If the appellants want Coillte to proceed, Coillte should regard itself as having received an AIE request on the date when the appellants make that wish known, asking for*:
a. All environmental information in documentation that was submitted to Coillte’s Board regarding the Cullenagh wind farm project, Co. Laois up to 12 November 2018.
b. All decisions of the Board to proceed with any stage of the project (including interim decisions) up to 12 November 2018.
c. All of the information in the 11 documents recently located by Coillte, in so far as those documents were held by Coillte on 12 November 2018.
3. Process the request in accordance with the AIE Regulations, giving notice of a decision within the statutory timeframe and informing the appellants of their right to request a review of that decision.
*Coillte may regard the request as asking for any lesser part of a, b or c above, if the appellants indicate that that is their wish. There can be no question, however, of expanding the scope of the request at this stage.
Commissioner for Environmental Information