Cinneadh
Ms. X and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-144910-B4F7D6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-144910-B4F7D6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Coillte has established that it did not hold any further relevant information in accordance with article 7 (5) of the AIE regulations.
28 April 2025
1. This appeal relates to a remitted request by the Commissioner for Environmental Information pursuant to his consolidated decision of 04 August 2023, under case reference OCE-135169-Q7L8F6, where a request dated 07 December 2021 was annulled and Coillte directed to undertake a fresh decision making process.
2. Subsequently, the request in this appeal deemed received by Coillte on 03 October 2023 was as follows:
“Action Point 7 of the National Peatlands Strategy 2015 provides for the following action:
'The relevant authorities working with stakeholders will introduce guidance and criteria for the identification and future management of peat areas currently afforested in line with the aims of this strategy. They will also provide clear guidance on future afforestation of peat soils.'
Bodies responsible for Action Point 7 are noted as:
DAFM and Coillte
Status in relation to implementation of Action Point 7, is reported in the Progress Report 2018 and 2019 as:
'Completed with project continuing to 2022'
Noting the above and for the time period from 1 January 2015 to today (both dates inclusive), please provide, by email, all information in connection with Action Point 7 of the National Peatlands Strategy 2015.
-The information provided should include, inter alia:
-Internal and external correspondence (any media, including text and WhatsApp messages)
-Advice received, including legal advice, including drafts
-Any analysis, review or consideration etc of any material and / or draft proposals relevant to the request
-Consultations, including public consultations
-Draft reports and final reports (including all appendices or annexes)
-Notes of all telephone conversations where any part of the conversation is relevant to the request
-Notes of all meetings (actual or virtual), including agendas, where any part of the meeting is relevant to the request.
-Investigations, either conducted internally, or externally by any third parties, that are relevant to the request.”
3. In its original decision dated 02 November 2023, Coillte identified 11 relevant documents and agreed to grant access, in redacted form, pursuant to 8(a)(i) of the AIE regulations and stating that these records had previously been provided to the appellant.
4. The remaining information:
1. Advice received, including legal advice, including drafts.
2. Consultations, including public consultations.
3. Notes of all telephone conversations where any part of the conversation is relevant to the request.
4. Notes of all meetings (actual or virtual), including agendas, where any part of the meeting is relevant to the request.
5. Investigations, either conducted internally, or externally by any third parties, that are relevant to the request.
was refused under article 7(5), on the basis that Coillte had“been unable to locate any records relevant having taken all reasonable steps to locate the information sought.”
5. The appellant made a request for an internal review on 30 November 2023.
6. In its internal review decision dated 22 December 2023, Coillte affirmed its original decision stating that the records previously provided to the appellant“are all of the records held by Coillte (including emails, draft and final reports) relating to Action Point 7 of the National Peatlands Strategy 2015" and that“no material records exist" in respect of the remaining points.
7. The appellant appealed to my Office on 26 December 2023, contending“it is not credible that Coillte has taken all reasonable steps to locate all of the requested information.”
8. 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’).
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. The appellant in this matter requested that her submissions made on 22 February 2023, in the remitted request (Appeal Ref OCE-135169-Q7L8F6,) be considered in this appeal. In light of the informal procedure encouraged by the Commissioner for Environmental Information, these submissions were considered by this Office and also shared with Coillte.
11. 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.
12. Pursuant to article 7(5) of the AIE Regulations, the scope of this review is to investigate whether Coillte has conducted adequate searches in order to locate all records which may come within scope of the original AIE request.
The appellant
13. In her request for an internal review dated 30 November 2023, the appellant stated:
“Since 2015 (and into 2022) Coillte have been working (with DAFM) on three matters relevant to this AIE request,
a) Guidance and criteria for the identification of peat areas currently afforested in Ireland;
b) Guidance and criteria for the future management of peat areas currently afforested in Ireland;
c) Guidance on future afforestation of peat soils in Ireland.
I have not received any information on the above three matters- i.e Action Point 7 of the National Peatlands Strategy 2015.”
14. The appellant maintains that“it is not credible” that Coillte has taken all reasonable steps to locate all of the requested information. In correspondence to this Office dated 21 January 2024, the appellant contended that in The National Peatlands Strategy Progress Report 2018 and 2019, it was noted that (as at 2019) the status of Coillte’s work on matters (a)-(c) above was“completed with project continuing into 2022”. She argued that it is not“logically possible” for the project to have been completed by 2019 (although the project continuing from 2019 to 2022) and for Coillte to refuse this AIE request under article 7(5) arguing that “both positions cannot apply simultaneously- the two positions are mutually exclusive.”
15. In addition, the appellant also relied on her submissions dated 22 February 2023, made in respect of the remitted appeal OCE-135169-Q7L8F6, . In these submissions the appellant argues that none of the information provided to her, actually provides the specific information requested in respect of“all information in connection with Action 7” , which she states is all information on the work undertaken by Coillte to“introduce guidance and criteria for the identification and future management of peat areas currently afforested in line with the aims of this strategy. They will also provide clear guidance on future afforestation of peat soils.’” The appellant also states that for the period 01 January 2015 to 07 December 2021, she does not know“what scientific research” Coillte has had regard to in relation to matters (a)- (c) above.
16. Further, the appellant opined that the information request “will include, inter alia, all research requested, all research received and all draft and final guidance prepared on:
a) the identification of peat areas currently afforested in Ireland
b) the future management of peat areas currently afforested in Ireland
c) future afforestation of peat soils in Ireland.
It will also include, inter alia, all internal and external communications (all media) relating to and in connection with these three matters.
What I am not seeking under this AIE request are references, in various documents, to Action Point 7 and the work that Action Point 7 requires Coillte (and DAFM) to undertake from 2015. I already know this. However, this is the only information that has been provided to me by Coillte.”
Coillte
17. In its original decision dated 03 November 2023, Coillte stated that it had conducted an interview with the staff member responsible for dealing with the Peatlands Strategy Implementation Group to confirm the adequacy of the search and that members of the AIE team held detailed discussions with the Forest Communications Manager“to ascertain if records relating to the information being sought existed.” Coillte advised that the Forest Communications Manager completed searches and provided the records which have been released to the appellant.
18. Coillte also provided the following information in respect of its record management practices insofar as those practices relate to the request information;
“Notes of telephone conversations, notes of meetings and meeting agendas: The taking of notes during telephone conversations is done at an individual level, where individual staff members may decide to take a brief handwritten notes as an ‘aide memoire’ during a telephone conversation. There is no requirement to retain or store telephone notes and consequently they are destroyed as soon as they are no longer required by the note-taker, typically within a matter of days. The sole exception is where the staff member elects to prepare a typed telephone attendance memo which is then saved to the appropriate case file (this is typically only done by the Legal Teams). Meeting notes are not taken unless there is a necessity to issue formal minutes. Meeting agendas are created on an ad hoc basis where required and circulated by email to attendees.”
19. In its internal review decision dated 22 December 2023 Coillte affirmed its original decision reiterating that“the records already provided to you are all of the records held by Coillte (including emails, draft and final reports) relating to Action Point 7 of the National Peatlands Strategy 2015 and that having taken “all reasonable steps” to locate the request information in points 1-5 above, that “no material records exist with this information.”
20. Coillte also stated that that in order to determine if records relevant to the request exist, detailed discussions were held with two 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.
21. Further, Coillte carried out interviews with individual members of staff who manage landscape units to confirm the adequacy of the searches;
• A meeting was held, with the Peatlands Strategy Implementation Group, to understand the request and what information Coillte might hold relevant to the request.
• A separate meeting was held with Coillte’s Communication Manager to understand the request and what information Coillte might hold relevant to the request.
• A follow up meeting was held with the subject matter experts which confirmed that the information requested does not exist in Coillte.
22. On the basis of the steps outlined above, Coillte concluded that no records relevant to the request are held on file.
23. In submissions to this office dated 08 March 2024, Coillte refuted the appellant’s assertion that“…it is not credible that Coillte has taken all reasonable steps to locate all of the requested information” and reiterated the searches carried out, highlighting the personnel who were consulted and who carried out searches, together with the details of meetings with relevant employees.
24. In addition, Coillte stated that it had “consulted further the identified SMEs and with the IR Decision maker requesting more specific details on the searches carried out. Keyword searches were carried out in outlook and Office 365 using keyword“National Peatlands Strategy”. Coillte engages in external correspondence with Stakeholders, to include the Department of Agriculture, Food and the Marine, in a professional and formal manner therefore any communications would be located by the SME on carrying out a reasonable search in outlook.”
25. Following a request for certain clarifications from this Office, Coillte in correspondence dated 11 April 2025 confirmed that searches had been carried out on the email accounts of the Communications Manager, Coillte Forest and Director of Coillte Nature and Stewardship Risk, & Advocacy Director, Coillte Forest. Key word searches of SharePoint Online together with outlook and Office 365 were also conducted as“these are the systems used to generate, relay and store information of this nature.”
26. Coillte also advised, by way of background information that“The National Peatlands Strategy has as its vision statement to provide a long-term framework within which all of the peatlands within the State can be managed responsibly in order to optimise their social, environmental and economic contribution to the well-being of this and future generations”. It sets out a cross-governmental approach to managing issues that relate to peatlands, including compliance with EU environmental law, climate change, forestry, flood control, energy, nature conservation, planning, and agriculture. The Strategy has been developed in partnership between relevant Government Departments/State Bodies and key stakeholders through the Peatlands Council. It is underlined by 25 key principles and commits to the undertaking of 32 actions across various sectors and themes, including Research, Tourism, Agriculture, Forestry, Conservation, Restoration, Peat Extraction, Energy, Water Quality and Climate Change”
27. The general thrust of the appellant’s position is that Coillte’s decision under article 7(5) of the AIE Regulations was not justified as“it is not credible that Coillte has taken all reasonable steps to locate all of the requested information.”
Article 7(5)
28. 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”.
29. 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.
Duty to give reasons
30. 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.
31. Article 7(5) of the AIE regulations allows a public authority to refuse a request if it does not hold the requested information. In order for a public authority to successfully rely on this provision, it must, amongst other things, provide evidence that it carried out adequate searches for the environmental information requested. The requirement under article 7(5) of the AIE Regulations for a public authority to clearly set out the actions it has taken in response to a request is not only necessary for this Office in its considerations, but also gives confidence to the appellant that suitable search procedures were conducted in response to their request.
32. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also 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 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal.
33. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed, whether at internal review stage or through an appeal to this Office.
34. In its internal review decision to the appellant and submissions to this office, Coillte outlined the steps undertaken with respect to searches for information relevant to this AIE request.
35. I have carefully examined the steps that Coillte says it took to ensure all information relevant to the request has been identified. This includes steps taken when the AIE request was first received, outlined in point 17 above and further details in the internal review decision, submissions to this Office and on foot of a clarification request, outlined in point(s)19-26. It is Coillte’s contention that the 11 records it released to the appellant, represent the only records it holds, relevant to the scope of the request.
36. In the appellant’s appeal, together with her submissions outlined in point(s) 14-16 above, she argues that it is not credible that Coillte have taken all reasonable steps to search for the information requested and she does not know what “scientific research” Coillte has carried out in relation to Action Point 7 of the National Peatlands Strategy 2015.
37. In light of the above, it is evident that Coillte has carried out detailed searches in processing the appellant’s request, which included interviews/conversations with subject matter experts and relevant staff members, electronic searches of relevant databases in addition to further searches of relevant staff member’s emails accounts. I am satisfied that the searches carried out by Coillte are reasonable within the meaning of the AIE Regulations.
38. Considering the circumstances, I am persuaded based on the information before me that Coillte has taken sufficient steps to determine that it does not hold further 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.
39. 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.
40. 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