Cinneadh
Ms Y and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-144905-L0G2K2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-144905-L0G2K2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Coillte was justified in refusing access to information under article 7(5) of the AIE Regulations on the grounds that the requested information is not held by or for it
1. On 16 January 2023 the appellant submitted a request to Coillte seeking access to the following:
“I refer to the Coillte report 'Strategic Vision for our Future Forest Estate' launched on 21 April 2022 and specifically, page 27. I note the following from page 27:
'Further areas of our estate could be transformed for nature, through:
• Converting peatland forests where appropriate to semi-natural wilderness to promote species diversification.
• Transitioning forests near recreational areas to semi-natural forests where appropriate.
• Redesigning poorly performing forests to enhance biodiversity and climate benefits.
I request, by email, all information relating to:
1) the definition of 'poorly performing forests' adopted by Coillte for purposes of the April 2022 report 'Strategic Vision for our Future Forest Estate',
2) an Excel spreadsheet relating to all 'poorly performing forests' analysed by Coillte, as noted by Coillte on page 27 and, as analysed, for purposes of the April 2022 report.
The Excel spreadsheet to include the following information:
County location of the poorly performing forest
Forest name (of the poorly performing forest)
Coillte reference number for the poorly performing forest
Size of poorly performing forest (in hectares)
Information on the current species mix within the poorly performing forest
Current age(s) of the trees within the poorly performing forest
Forest Service reference number for the most recent felling licence granted by DAFM in relation to the poorly performing forest
Date of the most recent felling licence granted by DAFM in relation to the poorly performing forest
3) a map (preferably interactive) of the poorly performing forests listed in the excel spreadsheet in (2) above”.
2. On 15 February 2023, Coillte issued its decisions, stating;
“Regarding part 1 of your request regarding the definition of 'poorly performing forests’, I am granting you access by way of a high-level definition of poorly performing forests as set out below. Poorly preforming forests or ‘legacy areas’, are those where the current forest is not meeting one of our core objectives and can provide opportunities to create new habitats. Redesigning these areas would provide greater species diversification as well as potential ecological and climate benefits. For parts 2 and 3 of your request, I have been unable to locate any records relevant to your request. I therefore refuse your request under Article 7(5) of the AIE Regulations”
Coillte confirmed they had conducted;
“• a search of the electronic databases and records held both on mainframe computers and individual staff computers.
• interviews with individual members of staff who may have dealt with such records.
• detailed discussions with the records management staff”.
3. On 15 February 2023, the appellant requested an internal review of Coillte’s decision.
4. On 14 March 2023. Coillte issued its internal review decision. In doing so, it affirmed its original decision and stated;
“The request, as originally submitted, sought a definition for Poorly Performing Forests, which was duly provided to you. Following a re-examination of the information the definition of poorly preforming forests was provided to you and I am satisfied that Coillte have fulfilled their obligation in this regard. The information sought in your internal review request, relates to new and further definitions and their application in Coillte considerations. This goes above and beyond the scope of the Request as originally submitted”.
Coillte also stated;
“The formulation of the Future Forest Vision was carried out at a strategic level and is in the preliminary stages and there is no information that is capable of extraction at this time”.
5. On 3 April 2023, the appellant submitted an appeal to this Office and resulting from that this Office issued a decision dated 4 August 2023, under case reference OCE-137137- X0S9V4 , which is available on our website, www.ocei.ie ,and directed Coillte to undertake a fresh decision making process.
6. On 2 November 2023, Coillte issued a new decision. In doing so, it affirmed its original decision. Coillte stated;
“I made a decision on your request on 2 November 2023 as a fresh decision-making process. I examined material held by Coillte and having taken all reasonable steps to locate the requested information and establish whether the information you have requested exists, I have been unable to locate any records relevant to your request. I therefore refuse your request under Article 7(5) of the AIE Regulations, other than that part hereunder relating to Part 1 of your request, where a definition has been provided”.
Coillte also stated:
“To clarify the position relating to parts 2 and 3 of your request, the document titled “Strategic Vision for our Future Forest Estate” that you have quoted from in this AIE request is a future vision for the transformation of certain categories of the estate such as; converting peatland forests, transitioning forests near recreational areas and redesigning poorly performing forests. The formulation of the Future Forest Vision was carried out at a strategic level with the objectives being identified at a national scale. Further research is required in some areas, particularly in relation to forests and water to inform the future management of biodiversity areas and the wider estate in relation to key species, habitats, and environmental features. The results and output of this research will produce a detailed list of potential sites in due course”. Coillte clarified “No physical ‘record’ exists with this definition, and it is being provided to you to provide context for Coillte’s ongoing work relating to our 'Strategic Vision for our Future Forest Estate'”.
7. On 02 November 2023, the appellant requested an internal review of Coillte’s decision dated 02 November 2023.
8. On 22 December 2023, Coillte issued a new internal review decision and affirmed its original decision.
9. The appellant appealed to my Office on 26 December 2023.
10. 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:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
11. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
12. In accordance with article 12(5) of the AIE Regulations, my role is to review Coillte’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require Coillte to make available environmental information to the appellant.
13. The scope of this review is to determine whether Coillte were justified in refusing access to the requested material under article 7(5) of the AIE regulations on the grounds that there are no actual records available.
14. On 19 April 2023, the appellant provided a submission to this Office in support of her appeal. An additional submission was provided by the appellant on 21 January 2024. These submissions were provided to Coillte, who were requested to provide full and complete details of the steps and searches it had undertaken, along with details of its record management, retention, and disposal policies, in respect of the information sought in this case.
15. As part of the Internal Review on 22 December 2023, Coillte provided details of the searches that had been conducted stating;
“The records typically created for the purpose of developing and progressing this strategic vision would involve collation of data from the Coillte estate, analysis at a broad strategic/level, and presentation of our analysis in report/document form.
The result of this search demonstrated that the following documents were accessed to develop the vision:
(i) Coillte’s Forest Inventory layer is available to download through Coillte’s Map Viewer.
The Map Viewer allows members of the public to download and view Coillte maps and dataset layers. The map viewer, on the Coillte website, provides the following information:
• Property Boundaries of the entire Coillte Estate, including: leases, vesting’s, farm partners, IFUT and AIM - this is required as the licences for felling are applied on all areas of the estate. The following information can be found on Coillte’s Map Viewer:
• Forest Inventory for Coillte Owned land.
• Forest Roads – this is built forest roads for all the estate
• Recreation Trails – all recreation trails that cross Coillte land
• BAU and Forest Boundaries are also available here.
Further data, for the purpose of developing the strategic vision, was gained by the team from the following publicly available information sources:
(ii) EPA GIS data portal ( http://gis.epa.ie )
(iii) Copernicus EU Digital Elevation Model (EU DEM):
(iv) NPWS protected site data:
(v) Information in relation to peat lands was accessed through to the EPA GIS data portal ( https://gis.epa.ie/ ) under the section ‘Soil and Subsoils,’ both areas are publicly accessible.
The following documents are the outputs of this analysis and are accessible on the Coillte website, https://www.coillte.ie/ :
Forests for Climate Report on Carbon Modelling of the Coillte Estate
Coillte-Strategic Vision for our Future Estate
Detailed discussions were held with subject matter experts who deal with this type of information in Coillte to ascertain (a) if this information typically exists and/or is held by Coillte and (b) to request they carry out appropriate keyword and file searches if such information is held by Coillte.
The following meetings were held:
(i) information was provided to the AIE Team by Coillte’s Environmental Technical Lead and Forest Communications Manager during discussions held to ascertain if information relevant to the Request exists.
(ii) As part of the internal review process three separate calls/meetings were held with the Inventory & Resource Information Lead and the Development Manager to ascertain what information exists in relation to the request. The team outlined the status of the project by discussing the tangible outputs, and that status of the document at the time of the AIE request. It was confirmed by the team that this information does not exist. To support this assertion the previous and current Inventory Resource Managers and the Strategic Planning Lead searched the following sources and confirmed same:
The Strategic Vision for our Future Forest Estate
The Forests for Climate Report on Carbon Modelling of the Coillte Estate
The project team sites and all relevant databases.
The Land Resource Manager (LRM) programme
Following these detailed enquiries and discussions with the relevant subject matter experts, I am satisfied to confirm that information in relation to your Request does not exist in Coillte.
The basis on which Coillte has concluded that some or all of the information sought does not exist is that the strategic vision is the starting point of a process to develop a long-term strategic plan for Coillte’s mission to deliver the multiple benefits of forestry to society across climate, nature, wood and people in a sustainably balanced way”.
16. The appellant maintains“it is not credible that Coillte has taken all reasonable steps to locate all of the requested information” and provided this Office with a PowerPoint presentation entitled ‘Coillte Strategy Engagement – Commercially Sensitive’ and argued this should have been provided by Coillte as part of her request.
17. The appellant argued the definition of poorly performing forests provided by Coillte referred to only one core objective not being met, while four core objectives were identified in Coillte's Strategic Vision. The appellant speculated that Coillte’s definition of poorly performing forests when the core objective not being met is ‘forests for wood’, is based on yield class and argued a copy of this presentation should have been provided. Page 11 of the presentation details the yield class of forested deep peat by hectare and from this the appellant has extrapolated,“Coillte define ‘poorly performing’ as meaning a forest where the projected Yield Class is <=10 (where the forest is planted on Raised Fen) and is <=8 (where the forest is planted on Blanket Peat)”.
18. Coillte submits“that the presentation is not relevant to the Request. There is no reference to “poorly performing forests” within that presentation. With reference to Parts 2 and 3 of the Request, the Appellant is seeking specific categories of environmental information which are not contained within the presentation.”
19. In this case, the appellant contends that Coillte should hold further information relevant to her request. Article 7(5) of the AIE Regulations is the relevant provision to consider, where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned. It provides as follows;
“Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it”.
20. What will be considered reasonable will vary from case to case, but as a general guide, I set out below the type of information that my Office would generally expect to be set out in a decision where a public authority is relying on article 7(5) of the regulations;
(i) an outline of exactly which areas/units etc. of the organisation were searched for the information;
(ii) an explanation of how searches were carried out (i.e. manually, by computer, by name, by key words). Keywords should be recorded and provided in the decision as appropriate;
(iii) details of the individuals consulted in connection with the search;
(iv) a description of the searches carried out to cover the possibility of misfiled/misplaced records;
(v) details of guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of information requested in this case;
(vi) the basis on which the public authority has concluded that it does not hold any information within the scope of the appellant’s request and that no such information is held by any other person or body on its behalf.
21. This Office’s approach to dealing with this type of case is to assess whether 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 is applied. What will be considered reasonable will vary from case to case.
22. Coillte have clearly outlined the steps it took in searching for the requested information. Coillte provided a definition of poorly performing forests, as used in its'Strategic Vision for our Future Forest Estate'. Coillte described the sources used to develop the vision and directed the appellant to each of these sources. Coillte also confirmed subject matter experts were consulted, and searches conducted of project team sites and all relevant databases.
23. Coillte maintain the appellant sought to broaden her AIE request at internal review by seeking“new and further definitions”. A review by this Office is limited in scope by the wording of an appellant’s original request and, while it can be narrowed further, it cannot be expanded. The appellant’s original request related specifically to a definition of poorly performing forests as“adopted by Coillte for purposes of the April 2022 report 'Strategic Vision for our Future Forest Estate',” an excel spreadsheet of the poorly performing forests as analysed by Coillte for the purposes of the April 2022 report, as well as an interactive map of these poorly performing forests. Coillte provided the appellant with the definition of poorly performing forest used for its Strategic Vision and maintain no other information exists as the Strategic Vison was the starting point of a long-term strategic plan.
24. In this case I find the appellant’s AIE request was explicitly linked to Coillte’s report 'Strategic Vision for our Future Forest Estate'. As such I hold the view that the searches conducted by Coillte were appropriate and reasonable in the circumstances. I am satisfied that Coillte has taken sufficient steps to determine that it does not hold environmental information relevant to the appellant’s request and accordingly was justified in refusing the request based on article 7 (5) of the AIE regulations. For the sake of completeness, I note that the appellant has the option to submit a fresh request for information beyond the scope of her original request should she wish to do so.
25. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby affirm the decision of Coillte.
26. 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