Cinneadh
Mr X and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-158933-P7G5Y7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-158933-P7G5Y7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
1. On 3 March 2025, the appellant submitted a request to Coillte as follows:
“In relation to Coillte's response to the consequences of Storms Darragh and Eowyn; I am seeking information related to any;
1) Consultation / Communication with other public authorities with relevant responsibilities regarding environmental impacts To include
a) National Parks and Wildlife Service
b) IFI
c) Local road authorities
d) ESB
e) Uisce Eireann
2) Legal advice sought and received related to liabilities for damage caused by trees from the Coillte estate.
3) Assessments of (or plans to assess) the forestry related environmental impacts of the two storms - particularly in relation to water quality.. Please interpret this request broadly. Please provide a schedule of records with your decision”
2. On 12 March 2025, Coillte wrote to the appellant, inviting him to refine his request. The appellant responded, noting that he did not wish to reduce the scope of the request.
3. Coillte issued its original decision on 3 April 2025 wherein it refused Item 1 and Item 3 of the appellant’s request on the basis of the request remaining formulated in too general a manner pursuant to article 9(2)(b) of the AIE Regulations; and also that the request was manifestly unreasonable having regard to the range of information sought and may be refused pursuant to article 9(2)(a) of the AIE Regulations.
4. In relation to article 9(2)(b), Coillte set out that “under the AIE Regulations, if a request is not refined after an invitation by the public authority to the requester to do so, the request can be refused”.
5. Coillte noted that the appellant’s response to the refinement invitation did not provide any further clarity or specificity regarding the nature of environmental information the appellant was referring to, leaving the request formulated, in Coillte’s opinion, in too general a manner.
6. Coillte further noted that even if the appellant’s request was deemed to have been formulated with the requisite specificity, that it is Coillte’s view that the request is manifestly unreasonable having regard to the range of information sought. Coillte also set out its position that the appellant’s request was not directed to any specific category of environmental information or to a particular geographical area. In addition, Coillte submitted that “it is manifestly unreasonable to seek to use the AIE Regulations in this way to obtain information relating to such events, rather than specified environmental information”.
7. Coillte’s original decision also considered the public interest test as set out in article 10(3) of the AIE Regulations. Coillte considered that factors in favour of granting access include that the public interests served by disclosure would be openness and transparency, and also the dissemination of environmental information to the public “in order to achieve the widest possible systematic availability and dissemination to the public of environmental information”. Coillte also noted that “the interests served by refusal are also public interests, including the fact that the unreasonable burden of fully processing the requests would divert BAU staff away from their normal work and cause a substantial and unreasonable disruption to that work, including the staff within the AIE Team itself”. In addition, Coillte also noted that “there is also a strong public interest in the efficient and effective performance of Coillte”. As a result, Coillte outlined its position that it was satisfied that the balance of legitimate public interest does not weigh in favour of disclosure of the requested information in this case.
8. Coillte’s original decision also acknowledged article 10(5) of the AIE Regulations which states 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”. This would include Coillte’s reliance on article 9(2)(a) of the AIE Regulation in stating that the appellant’s request is manifestly unreasonable. However, Coillte set out its view “that as the Request is formulated in too general a manner pursuant to Article 9(2)(b), Article 10(5) cannot be applied”.
9. In relation to Item 2 of the appellant’s request, Coillte’s original decision refused this element pursuant to article 7(5) of the AIE Regulations on the basis that no information exists for legal advice ‘sought and received related to liabilities for damage caused by trees from the Coillte estate’. Coillte outlined that on receipt of the appellant’s AIE request, the AIE team assigned it to the Legal Affairs Manager who is the relevant subject matter expert. Coillte noted it was confirmed during discussions that no information exists relevant to this Item of the request. Coillte added that the reason why this information does not exist is that Coillte did not seek or receive legal advice on such matters. On that basis, the request was refused under article 7(5) for Item 2 of the request.
10. The appellant requested an internal review of Coillte’s decision on 4 April 2025. He contended that Coillte failed to fully engage with him on his request and he also set out his view that Coillte did not consider what it would entail to meet his request. The appellant made reference to the fact that Coillte’s original decision cited 321 forest units, and noted that there are only six BAU’s which each have their own manager. He contended that “a manager would (or should) have oversight of the activities in the BAU”. In addition, the appellant noted that “Coillte's application of article 10 has failed to address the strong public interest that exists regarding the impacts of the two Storms”.
11. Coillte issued its internal review decision on 30 April 2025. In relation to Item 1 and Item 3 of the appellant’s request, Coillte affirmed the decision of the original decision maker. In doing so, Coillte noted that it relied on the reasoning provided to the appellant within the original decision. With regard to Item 2, Coillte noted that it considered that reasonable steps were undertaken to locate the requested information and establish whether the information the appellant requested exists. Coillte outlined that “the nominated subject-matter expert is a senior member of staff, whose role it is to seek or receive legal advice on such matters that are the subject of this element of the request. Therefore, searches of the systems were not conducted, and it was confirmed by the subject-matter expert that no material records or documents exist containing the information being sought”. Consequently, Coillte re-iterated the position of the original decision and confirmed its view that no records relating to this element of the appellant’s request exists in Coillte.
12. The appellant submitted his appeal to OCEI on 14 May 2025, limiting the appeal to Item 1 and Item 3. He set out his view that a requester is not required to limit a request to part of the Coillte estate, and also noted that if environmental impacts are nationwide that it is reasonable for him to seek information on a national basis. The appellant outlined his position that he specifically indicated impact on water quality in terms of the assessments he was seeking in his request. He noted that his request was specific and clear such that article 9(2)(b) does not apply and also contended that “there is no evidence that Coillte have made any meaningful effort to determine what work would be required to address this request to determine that article 9(2)(a) applies”.
13. Within the appellant’s appeal to OCEI he also commented that “the release of silt and sediment from the rootplates of windblown trees (and through the action of pumping (where trees rocking in the wind bring silt to the surface which can then move by overland flow) could be considered to be emissions in to the environment”. On that basis, he contended that Coillte cannot rely on the exceptions they have to refuse the request under Item 3 as it relates to information on emissions in to the environment.
14. 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 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’).
15. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
16. Coillte provided a submission to this Office on 4 June 2025 wherein it requested that OCEI “decides on the application of article 9(2)(b) before a decision is made on the appeal as [Coillte] submit the applicability of article 9(2)(b) is a determinative factor in assessing whether the Appeal has grounds to proceed”.
17. Notwithstanding Coillte’s refusal of the appellant’s request under article 9(2)(b), the Investigator also noted Coillte’s position that “even if the request were formulated with the requisite specificity, it would be manifestly unreasonable due to the range of information sought”. On that basis that the Investigator invited Coillte to make submissions on article 9(2)(a) in order to deal with the matter as efficiently as possible.
18. The Investigator liaised with Coillte on a number of occasions seeking 9(2)(a) submissions, and provided an extension on submissions when requested to allow Coillte sufficient time to gather information and carry out any necessary consultation with internal subject matter experts. Despite this, no article 9(2)(a) submissions were received from Coillte.
19. I wish to note here that it is clear from the comments of the Court of Appeal in Redmond, at paragraph 51, that the nature of a review by this Office is inquisitorial rather than adversarial in nature. The extent of the inquiry is determined by this Office and not the parties to the appeal.
20. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s decision and to affirm, annul or vary it. I note that the appellant makes reference in his appeal to this Office that Item 3 of his request could be considered to be emissions in to the environment. Introducing this element to the appeal at this time would involve considering the article 10(1) provision of the AIE Regulations which holds that “a request for environmental information shall not be refused where the request relates to information on emissions into the environment”.
21. The scope of this review concerns the original decision making stages, wherein the request was refused on the basis of the request being formulated in too general a manner pursuant to article 9(2)(b) of the AIE Regulations; and also that the request was manifestly unreasonable having regard to the range of information sought and may be refused pursuant to article 9(2)(a) of the AIE Regulations. Should the appellant wish to pursue an argument under article 10(1), he should submit a new AIE request to Coillte.
22. As such, this review is concerned with whether Coillte was justified in its refusal of the information sought under articles 9(2)(a) and 9(2)(b) of the AIE Regulations.
23. In his statement of appeal to this Office, the appellant indicated that he relies primarily on his internal review request as his submission, which has been considered.
24. Coillte provided a submission to this Office on 4 June 2025 wherein Coillte set out its position regarding its refusal of the request under article 9(2)(b). As set out above, Coillte submitted that “if the OCEI determines that Parts 1 and 3 of the Request are not formulated in too general a manner, then I submit, without prejudice to Article 9(2)(b), that Article 9(2)(a) of the AIE Regulations can be applied regarding the range of information requested”.
25. Coillte made reference to article 9(2)(b) and also article 7(8) of the AIE Regulations. In addition, Coillte referenced article 6(1)(d) which provides that a “request for environmental information shall—d) state, in terms that are as specific as possible, the environmental information that is the subject of the request”.
26. Coillte also made reference to the refinement request issued to the appellant in this case. Coillte submitted that it was “satisfied that the decision maker acted in accordance with article 7(8) of the AIE Regulations by inviting the Applicant to submit a more specific request within the prescribed timeframe. Furthermore, I am satisfied that the initial decision maker provided appropriate assistance to the Applicant, suggesting ways to refine the Request to meet the necessary requirements”.
27. Coillte submitted its view that the appellant did not sufficiently specify his request. In addition, Coillte noted that the appellant explicitly asked Coillte to interpret the request “broadly”, which in Coillte’s view, contravenes article 6(1)(d) of the AIE Regulations.
28. Coillte submitted that the appellant did not refine the request in response to the Refinement Request. Coillte also added that the appellant declined to reduce the geographical area covered by Part 1 of the request and failed to clarify or specify the category of environmental information sought. Regarding Part 3 of the request, Coillte submitted that the appellant was only willing to consider limiting the scope of requested assessments if Coillte provided a list of assessments undertaken. In addition, Coillte submitted that “the decision maker determined that, even if the request were formulated with the requisite specificity, it would be manifestly unreasonable due to the range of information sought”.
29. Coillte further submitted the following in relation to the appellant’s request:
“Given the widespread damage caused by Storms Darragh and Éowyn (“Storms”) and the large number of personnel involved in recovery efforts, the AIE Team would need to consult numerous individuals to identify relevant materials. This would require reviewing records from various levels of engagement with public authorities, verifying their relevance to environmental information, and applying necessary redactions. Moreover, as the Request does not target a specific type of environmental information or a defined geographical area, it does not align with the intended use of the AIE Regulations. Accordingly, I concur with the decision maker that “it is manifestly unreasonable to seek to use the AIE Regulations...to obtain information relating to such events [i.e. the Storms], rather than specified environmental information”. Consequently, without prejudice to Article 9(2)(b), Coillte deems the Request to be manifestly unreasonable having regard to the range of information sought, pursuant to Article 9(2)(a) of the AIE Regulations”.
30. Coillte also submitted that the appellant’s appeal narrowed the scope of the assessments requested under Part 3 of the Request from“Assessments of (or plans to assess) the forestry-related environmental impacts of the two storms—particularly in relation to water quality” to“In terms of assessments, I specifically indicated impacts on water quality” . Coillte submitted that the revised request in the appeal differs from the initial Request, as it introduces a level of specificity that was absent in the original request.
31. In considering the public interest in accordance with article 10(3) and 10(4) of the AIE Regulations, Coillte’s submissions also set out factors both for and against release of the requested information, set out as follows:
A. “In favour of granting access:
There is a public interest in ensuring openness and transparency in environmental matters. Moreover, achieving the widest possible systematic availability and dissemination of environmental information aligns with the fundamental objectives of the AIE Regulations.
B. In favour of refusing access:
Undertaking Part 1 of the Request would place an unreasonable burden on Coillte’s staff, diverting BAU personnel from their essential duties. This would cause a substantial and unjustifiable disruption to their work, including the operations of the AIE Team itself. Given the restoration efforts required following the Storms, such a diversion would further strain resources and impede critical recovery work. There is a strong public interest in ensuring that Coillte functions efficiently and effectively, making it imperative to prioritise core responsibilities over disproportionate administrative burdens. Similarly, Part 3 of the Request does not satisfy the public interest test, as the Applicant has not provided specificity regarding the environmental information sought. Precision in defining the Part 3 of the Request would benefit both Coillte and the Applicant, and, by extension, the public interest, enabling a more effective exchange of information”.
32. Based on this, Coillte submitted it was satisfied that the public interest would be best served by the refusal of Parts 1 and 3 of the Request.
33. As indicated in the “Background” section there was correspondence between the parties in respect of reformulation/refinement of the request. The decision maker in Coillte set out their view that the appellant’s request was manifestly unreasonable having regard to the volume or range of information sought. Coillte noted that the appellant’s request sought access to information that may exist for every BAU (Business Area Unit) in Coillte, which amounts to 321 forest units. Coillte outlined that “considering the severity of damage caused by Storm Darragh and Storm Éowyn throughout the country and the fact that multiple staff and contractors in each area were directly involved in any related work thereafter, the AIE Team would have to engage directly with each relevant member of staff to confirm whether or not they hold material that falls to be released. It is important to note that this may include details of engagement at local level with staff, contractors, Coillte’s legal department, stakeholders, local authorities, etc. which would necessitate each record being retrieved and validated to ensure that all necessary redactions are applied as required”. On that basis, Coillte requested that the appellant “refine [his] request to a particular geographical area, for example, a particular forest within a BAU or a specific county”.
34. Coillte also made reference to article 9(2)b) which provides that a public authority may refuse a request where the request remains formulated in too general a manner. Coillte outlined its opinion that the appellant’s request was formulated in too general a manner, and in accordance with article 7(8) invited the appellant to make a more specific request. Coillte informed the appellant that in making a more specific request that he “may wish to outline what environmental information [he was] seeking by clarifying what nature of ‘assessments’ [he was] referring to”.
35. Coillte set out their view that “as currently worded, the Request seeks access to information held relating to all acts of assessment or appraisal carried out by Coillte staff, contractors and external third parties in relation to damage caused by Storm Darragh and Storm Éowyn. Further any appropriate assessments carried out by relevant staff would currently fall within the scope of the Request”.
36. On 13 March 2025, the appellant responded to the refinement invitation including the following comments:
“I see no basis to reduce the area covered by this request. The impacts of the storms was countrywide and Coillte will be aware of where the most significant impacts occurred and what assessments have taken place at a broad and local scale.
If you wish to provide me with a list of the assessments that have been undertaken I will consider limiting my request to specific assessments. but in the absence of a list it is unreasonable of you to expect me to know what assessments have been undertaken in order to reduce the scope of my request and my request remains unchanged. You have to help me to help you.
I would point out that there is a very significant public interest in understanding how Coillte have addressed the environmental implications of the storms”.
37. Having examined Coillte’s correspondence to the appellant and the detail provided therein, it is clear that Coillte offered help to the appellant to refine the request and provided examples of how this might be done (e.g by refining the request to a particular geographical area, clarifying the nature of assessments sought). However, I also note from the appellant’s response to the refinement invitation that the appellant indicated if Coillte could provide a list of assessment which had been undertaken he would consider limiting his request to specific assessments.
38. Beyond the appellant’s response to the refinement request on 13 March 2025, there is no further evidence to suggest that any further engagement between the parties regarding the reformulation/refinement of the request. While I acknowledge the initial engagement between the parties, the lack of further constructive engagement is disappointing. However, this is not, in and of itself, a requirement for a public body’s reliance on or an immediate basis for refusal under article 9(2)(a) of the AIE Regulations.
39. Accordingly, while a requester’s refusal to refine a request and reduce the volume or range of information sought may impact whether a request is manifestly unreasonable, and this Office would encourage both parties to liaise constructively, a requester’s unwillingness to engage with a public authority is not, in and of itself, a basis for refusal under article 9(2)(a) of the AIE Regulations.
40. Taking the above into account, it is my view that Coillte have applied article 7(8) of the AIE Regulations. I will now consider if article 9(2)(b) is engaged in this case.
41. Article 9(2)(b) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request remains formulated in too general a manner, taking into account article 7(8). Article 9(2)(b) seeks to transpose article 4(1)(c) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is formulated in too general a manner, taking into account article 3(3), and, in turn, is based on part of article 4(3)(b) of the Aarhus Convention.
42. Article 9(2)(b) must be read alongside article 10 of the AIE Regulations, which provides for certain limitations on the ability of a public authority to refuse environmental information. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal and article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 7(4)(c) of the Regulations requires a public authority to specify the reasons for refusal of a request.
43. The Minister’s Guidance at paragraph 12.8 states the following:
“Article 9[(2) …] clarifies that a public authority may refuse to make information available if the request is considered unreasonable due to the range of material sought, if the request is too general or if the material requested is not yet completed. Public authorities are requested to invoke these grounds for refusal sparingly, and to assist the applicant (to reformulate a request, for example) as appropriate”.
44. Article 9(2)(b) of the AIE Regulations and article 4(1)(c) of the AIE Directive respectively require that article 7(8) of the AIE Regulations and article 3(3) of the AIE Directive be taken into account. Article 7(8) of the AIE Regulations provides that 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. Article 3(3) of the AIE Directive provides that if a request is formulated in too general a manner, the public authority shall as soon as possible, and at the latest within one month, ask the applicant to specify the request and shall assist the applicant in doing so. As previously set out, it is my view that Coillte have adequately applied article 7(8) of the AIE Regulations in seeking the refinement and providing adequate assistance to the appellant in that regard.
45. In considering if article 9(2)(b) is engaged, I acknowledge that Coillte did ask the appellant to refine his request and have considered the appellant’s response to that request. While I consider it clear that the appellant’s request is potentially wide-ranging, I do not consider that this renders it “too general” such that article 9(2)(b) would apply. The request relates to two specific weather events and seeks a range of information relating to those events. While Coillte’s original decision questioned the nature of “assessments” the appellant might be referring in his request, I think it is clear that the appellant is seeking information on all acts of assessment or appraisal carried out by Coillte in relation to the two storms. As Coillte state in the decision, the request may indeed cover assessments and communications across the whole estate at all level of management. I do not agree that this means that the request is “too general” and I consider that these matters are more relevant to the question of whether the request is manifestly unreasonable, which I will consider below.
46. Accordingly, I find therefore, that article 9(2)(b) of the AIE Regulations is not engaged in this case.
47. Article 9(2)(a) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. This provision seeks to transpose Article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and, in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.
48. Article 9(2)(a) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations 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.
49. The European Commission’s First Proposal for the AIE Directive envisaged that the exception in Article 4(1)(b) would cover requests “variously described in national legal systems as vexatious or amounting to an abus de droit.” It noted that “compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. Public authorities should be able to refuse access in such cases in order to ensure their proper functioning.” The Aarhus Convention Compliance Committee (ACCC) has emphasised that “whether or not a request is manifestly unreasonable relates to the nature of the request itself, for example, its volume, vagueness, complexity or repetitive nature, rather than the reason for the request, which is not required to be stated.” (Report adopted on request for advice by Belarus, ACCC/A/2014/1, para. 28).
50. In respect of a request which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, it is clear that a request is not necessarily covered by the “manifestly unreasonable” exception just because it is voluminous or complex. Both article 7(2)(b) of the AIE Regulations and Article 3(2)(b) of the AIE Directive specifically envisage that public authorities will deal with voluminous or complex requests, albeit in a longer timeframe. I further note the parallel duty in Article 7(1) of the AIE Directive to ensure that public authorities organise environmental information with a view to its active and systematic dissemination to the public, and article 5 of the AIE Regulations which seeks to implement that provision. In his Opinion in C-217/97 Commission v Germany at paragraph 30, Advocate General Fennelly stated that the duty in Article 7 of the AIE Directive indicates that individual requests should, in principle, be on matters of detail. Accordingly, the fact that a request is detailed does not mean that it is necessarily unreasonable.
51. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, I must examine whether responding to the request would involve the public authority in disproportionate cost or effort, or would obstruct or significantly interfere with the normal course of its activities. In light of the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission, at paragraphs 101-115, I consider that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request. I expect that if a public authority wishes to rely on the manifestly unreasonable nature of a request, that public authority will clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.
52. This position is supported by recent comments from Advocate General Medina in his opinion on Coillte v Commissioner for Environmental Information Case C-129/24, in which he stated “in so far as it constitutes an exception to the general rule that information must be provided, refusal on the ground of a manifestly unreasonable request must remain exceptional”. In this opinion he also states “In particular, with regard to the volume of the information requested, according to Article 3(2)(b) of Directive 2003/4 that factor (as well as the complexity of the information requested) justifies an extension of the one-month time limit in which the administration must reply. It follows from a combined reading of Article 3(2)(b) of Directive 2003/4 and Article 4(2)(b) of that directive that the volume of the requested information alone does not render a request manifestly unreasonable”. He concludes however that a holistic view must be taken of each case, stating “it follows that determining whether a request is manifestly unreasonable depends not on the number, the nature or the frequency of requests taken in isolation, but on all the circumstances of each case.”
53. It is also important to bear in mind article 5 of the AIE Regulations and Articles 7 and 3(5) of the AIE Directive, which place duties on public authorities to organise and actively disseminate environmental information, to support the public in seeking access to information and to put practical arrangements in place to ensure the effective exercise of the right to access environmental information. It is not within this Office’s powers to examine the implementation of article 5 of the AIE Regulations or article 7 of the AIE Directive by public authorities. However, I am satisfied that the exemption in article 9(2)(a) is not intended to endorse any failure by a public authority to comply with its duties to organise and disseminate environmental information under those provisions. Furthermore, in every case, regard should be had to the purpose of the AIE Regime, as reflected in Recital 1 of the Preamble 6 to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment.” Accordingly, in cases involving article 9(2)(a) this Office may consider whether the information requested is the kind of environmental information that one would expect to be organised by the public authority in a manner that enables its easy dissemination.
54. In its original decision and internal review decision, Coillte stated that “the AIE Team would need to consult numerous individuals to identify relevant materials”, and also that “this would require reviewing records from various levels of engagement with public authorities, verifying their relevance to environmental information, and applying necessary redactions”. I do not consider that this level of detail is sufficient for me to find that article 9(2)(a) applies to this request.
55. Coillte did not identify the number of, or which specific staff member(s) would be involved, explain their day-to-day duties, or give any indication as to how their other work / other work of Coillte would be impacted. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request, and this requires the public authority to provide a satisfactory level of detail regarding the time it would take to process the request. This detail should include how many staff members would be required, what steps would be involved in answering the request and how much time would be spent on each of those tasks. While it would appear, having regard to the wording of this request, that could potentially be a large volume of information that would be relevant, without the information above I cannot fully consider whether article 9(2)(a) may apply to the request.
56. The duty to give reasons, for the refusal of requests, arises not only by virtue of the AIE Regulations and Directive, but is recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example,Meadows v Minister for Justice [2010] IESC 3 andBalz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Similarly, articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stage, consistent with Article 4(5) of the AIE Directive. In this regard, the High Court inRight to Know v An Taoiseach [2018] IEHC 372 noted, in particular, that “in light of the adjudicatory processes in which a decision-maker is required to engage pursuant to [a]rticles 10(3), (4) and (5) and 11(4) of the AIE Regulations, the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal” (paragraph 106). The Court held that in an absence of any indicator in the review decision that the balancing exercise mandated by articles 10(3) and (4) had been carried out, suggested that no balancing exercise had, in fact, been undertaken and that the same was true in respect of the mandatory obligation set out in article 10(5) of the AIE Regulations (paragraph 87).
57. Accordingly, it is my view is that the threshold for finding the request to be manifestly unreasonable has not been met at this time. Accordingly, Coillte has not established that article 9(2)(a) of the AIE Regulations applies to this request.
58. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul Coillte’s decision and direct it to undertake a fresh internal review decision-making process in respect of the appellant’s request, having regard to the comments above.
59. 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