Cinneadh
Mr N and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-147884-V2F2H6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-147884-V2F2H6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Coillte was justified in refusing access to the appellant’s request on the basis that no further relevant environmental information was held by it
18 September 2025
1. On 27 December 2023, the appellant requested the following information from Coillte:
“I wish to request under the Access to Information on the Environment Regulations, in electronic format;
1) A copy of any submission made by Coillte to the review of the AIE Regulations
2) Any related information which has informed the preparation of a submission, whether submitted or not.”
2. Coillte issued its original decision on 7 February 2024. It said it had identified three records which it was granting release of in full. It also said it was applying no charges as the information was easily accessible.
3. On 27 February 2024, the appellant requested an internal review of this decision on the basis that“Coillte has omitted to provide information relating to their engagement of Philip Lee and Company to assist in the preparation of the submission. The scope of my request would include the brief provided to Philip Lee & Co and the response received, plus any related correspondence. Why was this information not identified by the original decision maker?”
4. On 25 March 2024, Coillte issued its internal review affirming the original decision:
“Part 1
In the Decision you were provided with three documents, two of which related to Part 1 of your Request, being the following:
➢ Submission of Coillte CGA, issued to the Department of the Environment on 8 January 2024, Climate and Communications (“DECC”) on the Public Consultation on Proposed Amendments to the European Communities (Access to Information on the Environment) Regulations 2007 – 2014 (the “AIE Regulations”).
➢ Appendix I: Submission of Coillte CGA to the Department of the Environment, Climate and Communications (“DECC”) Public consultation on the review of the European Communities (Access to Information on the Environment) Regulations 2007-2014. I deem that the provision of this information satisfies, in full, this element of the Request, comprising the Submission made by Coillte to DECC relating to the review of the AIE Regulations.
Part 2
In the Decision you were provided with a document which related to part 2 of the Request, comprising a list of issues which Coillte provided to Philip Lee Solicitors. The exact wording of part 2 of the Request is as follows “Any related information which has informed the preparation of a submission, whether submitted or not.” (emphasis added) In your comments in the request for internal review, you state that this information should include “information relating to their engagement of Philip Lee and Company to assist in the preparation of the submission” and that the scope of the Request, “would include the brief provided to Philip Lee & Co and the response received, plus any related correspondence.” As noted above, a list of issues was issued to Philip Lee & Co, which constituted “the brief” to our legal advisors and this has already been provided to you in the Decision. There was a cover letter with the brief which issued to Philip Lee & Co which was not provided to you as this information did not inform the preparation of the submission. To provide further context in relation to the brief that issued to Philip Lee & Co, online meetings were held with them on 22 November 2023 and 5 January 2024 and no minutes were taken during these meetings. Therefore, I am satisfied that the information in relation to “the brief” was issued to you in full. You provided further information/clarification on the Request in your comments for internal review which indicated that you also wished to receive “any related correspondence”, with Philip Lee Solicitors. In this regard, I note that there were a number of emails between Coillte and Philip Lee & Co regarding their fee, the deadline to submit to DECC, etc., none of which falls within the scope of the Request, which specifically sought records that informed the submission. General administrative correspondence with our legal advisors could not be said to have “informed” the preparation of the submission and is therefore not within the scope of the Request. Specificity in all requests is mutually beneficial by aiding Coillte in adhering to the Request as accurately and efficiently as possible. Providing Coillte with as much information as possible on the Request, as opposed to at internal review stage, would ordinarily be mutually beneficial for the efficiency of the process. The additional information referred to in your request for internal review, in my view, is outside the scope of the original Request and was wording generated from the information granted to you in the Decision. In this regard, I considered the Decision of the Commissioner for Environmental Information in Mr F and Coillte (Case reference: OCE-132562-W9P1C6), wherein the Commissioner stated, “that the incorrect conflating of issues or the widening of the scope of a request, once it has been submitted to a public authority, is not permitted under the AIE Regulations and that public authorities are entitled in such cases to restrict their responses to the request actually submitted to them by requesters.”
5. The appellant appealed to this Office on 4 April 2024. In his preliminary submission the appellant stated the following:
“At stage 1 Coillte provided a single document which it claimed at IR was in relation to Item 2.
No Schedule of Records was provided to identify which record related to which element of my request. In my view it would be good practice, where there are a number of elements to a request, that records provided are related to the relevant element of the request.
I contend that the fact that Coillte engaged a legal firm to assist them in compiling their submission to a public consultation is relevant related information in its own right.
The document that was provided by Coillte does not contain any indication of having been submitted to Philip Lee and Company - it is my view that the cover letter should also be provided to provide context to the record. It is not clear from the list provided as to what Coillte is expecting from the Solicitors.
It is not clear in the records provided to me that Coillte had even engaged a firm of Solicitors.
Interpretation of the Scope of the Request
I contend that Coillte has applied the narrowest interpretation possible of my request in taking it to mean information solely related to the content of the submission. I contend that my request can (and should) be interpreted more broadly in terms of information related to the process which informed the submission. In this regard the engagement of a firm of Solicitors is related to how the submission was informed.
In this regard the agreed fee is relevant as it is an indication of the amount of time / work that Coillte is expecting the Solicitors to put into the process of providing advice.
"To provide further context in relation to the brief that issued to Philip Lee & Co, online meetings were held with them on 22 November 2023 and 5 January 2024 and no minutes were taken during these meetings. Therefore, I am satisfied that the information in relation to “the brief” was issued to you in full."
Please note that this does not refer to either an Agenda for the meetings or any response received by Coillte from Philip Lee Solicitors subsequent to either meeting.
Can the investigator clarify whether there was any written output from Philip Lee Solicitors as Coillte's IR decision does not address any response received - this was raised in my request for an internal review.
I contend that correspondence related to the two online meetings (including the Agenda) also falls within the scope of my request as would details of the attendees at the two online meetings.
The parties involved in the preparation of the submission is information related to how the submission was informed.
The document provided does not indicate any 'outputs' so it is unclear as to precisely what Philip Lee Solicitors role was in the process of the development of the submission. Was it solely restricted to verbal meetings which did not result in any formal Agenda or Minutes? This seems unlikely. Coillte's submission to the public consultation is highly detailed including specific recommendations for modification to the text of the draft Regulations. It does not strike me as credulous that Coillte would engage a firm of Solicitors to merely provide unrecorded verbal advice and it result in such a detailed submission. Why get a dog and then bark yourself?
The fact that a meeting was not Minuted does not mean that records relevant to my request exist (or existed when the request was made). Coillte staff who attended the meeting are very likely to have both made notes and may well have had prepared notes in advance of the meeting. These would fall within the scope of my request.
Coillte has not indicated that any searches were conducted include searches for notes taken by Coillte representatives during the meetings? These may have been subsequently used to inform the submission and would also fall within the scope of my request. It would be most unusual for no notes to have been taken during such meetings given the subject matter and the fact that no-one was taking Minutes. There were six weeks between the two meetings (albeit including the Christmas holidays) - was there no correspondence between the parties during that period?
How were the meetings convened?
I contend that, taking a broad interpretation of my request, Coillte's submission was informed by their engagement of and with Philip Lee Solicitors and that information regarding that engagement falls within the scope of my request. There is a very incomplete picture of the role of Philip Lee Solicitors in the process of informing the submission and I find it difficult to accept that there is not more information held by Coillte in respect of this.
On this basis I do not consider that Coillte has conducted this request in accordance with the Regulations.
As it was not public knowledge that Coillte had engaged Philip Lee Solicitors it is expecting a bit much of me to make reference to this in my request.
Coillte has not made it public (including in their submission) that they engaged a firm of solicitors in the preparation of that submission.
I did not request any additional information at the internal review stage. I was able to highlight what I consider to be a deficit in the information provided as a result of other information received.
I am of the view that the fact that Coillte failed to even inform me that they had engaged Philip Lee Solicitors in its original decision is tantamount to deceit in their handling of this request.
Had I not found out otherwise Coillte would have been able to keep this fact out of the public domain. I do not consider that they have acted in the spirit of the Regulations as well as the letter in addressing this request.
I became aware between making the request and the initial decision that Coillte had engaged Philip Lee Solicitors in preparing their submission. I therefore sought an internal review”
6. I am directed by the Commissioner to carry out a 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 Coillte. 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’).
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
9. The appellant has stated that he is appealing Part 2 of his request only. Therefore, I consider Part 1 of the request to be out of scope of this appeal.
10. Part 2 of the request concerns“any related information which has informed the preparation of a submission (to the review of the AIE Regulations), whether submitted or not.”
11. As set out above, one record was identified by Coillte and released in full to the appellant at original decision stage, in relation to Part 2 of the request. The appellant considers more information is likely to be held by Coillte in relation to this part of the request – and that Coillte has taken too narrow an interpretation of his request. In particular he states that the brief provided to Philip Lee (Coillte’s legal advisors) should be included, as well as any related correspondence between Philip Lee and Coillte, and any information related to “theprocess which informed the submission.”
12. Coillte’s position is that the brief it provided to Philip Lee was contained in the record furnished to the appellant at original decision stage. It stated that the cover letter provided to Philip Lee is out of scope of the request as it did not inform the preparation of a submission to the review of the AIE Regulations. Similarly, correspondence regarding other general administrative issues such as the fee paid, and the deadline for the submission, is also out of scope, as it could not be said to have“informed” the preparation of the submission.
13. I am satisfied that information pertaining to fees paid to its legal advisors, along with the aforementioned cover letter and other administrative correspondence goes beyond the scope of this appeal. I have come to this conclusion after carefully examining the wording of the appellant’s request, and the submissions from both parties.
14. I do however consider the (online) meetings held between Coillte and Philip Lee in relation to Coillte’s AIE Consultation submission to be in scope of this appeal. Coillte has said no written records exist in relation to these meetings – and the appellant disputes this. Accordingly, the scope of this appeal to be confined to whether the public authority holds any further environmental information within scope of the appellant’s request.
15. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. It is the relevant provision to consider where the question arises as to whether the requested environmental information is“held by or for” the public authority concerned. In cases where a public authority has effectively refused a request under article 7(5), this Office must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply.
16. Coillte has stated that 2 online meetings took place between Coillte and its legal advisors on 22 November 2023 and 5 January 2024 – but that no minutes were taken. The appellant questions why no minutes were recorded for these meetings, and why no response from the legal advisors was provided subsequent to either meeting. The appellant has made a number of points as to why further information should exist including –that Coillte’s submission to the public consultation is highly detailed with specific recommendations for amendments to the text of the draft Regulations. Therefore, he considers it likely that written advice would have been provided to Coillte rather than purely verbal advice.
17. As stated above, I must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. With this in mind, an investigator wrote to Coillte asking it to set out in detail the steps it took to determine no records are held by it in relation to these meetings.
18. Coillte, in submission to this Office, set out the steps it took to search for minutes of the meetings held on 22 November 2023 and 5 January 2024.
“(i) the attendees of each meeting were identified, and (ii) each attendee was consulted. The Coillte staff members present at both meetings were the Company Secretary and Director of Legal Affairs, and the AIE Solicitor. Both of these subject matter experts (“SMEs”) were consulted, and each affirmed, based on their own recollection, that no minutes were taken during either meeting. It is reasonable for Coillte to rely on the knowledge of these SMEs, given that they attended both meetings and were consulted shortly thereafter, at a time when their recollections would be expected to be clear and reliable.
Following completion of these searches and SME consultation, it was confirmed that minutes in relation to these meetings do not exist within Coillte and no additional records were identified as falling within the scope of the Request.”
19. Public authorities are required to carry out adequate and thorough searches in order to identify information relevant to a request. However in the particular circumstances of this case, I consider it reasonable to rely on the knowledge of Coillte personnel present at the online meetings, if they consider that information relating to a request or an element of a request does not exist. In these circumstances the carrying out of searches would be a redundant exercise and would not be a good use of public resources. This is because if such subject-matter experts present at the meetings, who have intimate knowledge of the field in which they work on a daily basis, as appears to be the case in this instance, affirm that no information of the type requested exists, then to require a public authority in such circumstances to conduct a needless search would be tantamount to requiring it to direct resources to a meaningless and futile task.
20. The search undertaken by Coillte in this case was by way of consulting with the experts in the field/attendees at the meetings not long after these meetings took place, I consider it likely that no relevant information exists. In my view, it is not unreasonable in this case for Coillte to rely on the knowledge held by such experts who attended these meetings.
21. Further, I am not persuaded by the appellant’s point that because Coillte’s submission to the public consultation is highly detailed with specific recommendations for amendments to the text of the draft Regulations –written advice must have been provided to Coillte.
22. As part of its response to this request for information, Coillte provided the appellant with a record titled“list of issues for submission 2023” which it sent to its legal advisors, Philip Lee. This record sets out in one column 18 areas within the AIE Regulations that Coillte proposed submitting amendments to. In the next column sets out a list of notes in relation to each proposed amendment, including some specific questions in relation to the proposed amendments. From looking at this record it is clear that there were particular issues that Coillte wished to discuss with its legal advisors. Legal advice and the services provided by such advisors can come in different forms, and as there were 2 meetings online meetings held between Coillte and Philip Lee in relation to the AIE Regulation submission, I think it is entirely plausible that advice was provided verbally and no written correspondence which“informed its submission” (as per the wording of the request) was received by Coillte.
23. It is also important to note that we do not generally expect public authorities to carry out extensive or indefinite general searches for information simply because an applicant asserts that more records should or might exist, or rejects a public authority’s explanation of why a record does not exist. The test in article 7(5) is whether the body has taken all reasonable steps to locate the record sought – and on this occasion I consider it has done so.
24. For the reasons I have set out above, I affirm Coillte’s decision to effectively refuse the request on the basis of article 7(5) and I consider that adequate steps have been taken to identify and locate all relevant environmental information on this occasion.
25. I note Coillte has referenced a number of records which on the face of it contains environmental information which I have found to be outside the scope of this appeal. I remind the appellant that it is open to him to make a fresh AIE request in relation to this issue– if he wishes to do so.
26. Having carried out a review under article 12(5) of the AIE Regulations, I affirm Coillte’s decision.
27. 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