Councillor Michael Kilcoyne and Coillte Teoranta

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0021
• Decision Date: 06 July 2017
• Issuer: Coillte Teoranta
• Applied Rules: Art.3(1) Art.7(3) Art.9(1)(c) Art.15(5), European Communities (Access to Information on the Environment) Regulations, 2007

Councillor Michael Kilcoyne and Coillte Teoranta

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0021

Published on 6 July 2017

1. Background
2. Scope of review
3. Analysis and findings
4. Decision
5. Appeal to the High Court

Background

Coillte is a private company established under the Forestry Act 1988 to manage the State's forests on a commercial basis. On 28 March 2016, the appellant emailed an AIE request to Coillte for access to "the mean wind speeds measured for each anemometer on your Cluddaun wind mast" The appellant also requested information on the height of each measurement instrument and the dates of measurement.

Coillte responded on 20 April 2016. It stated that it carried out wind speed measurements at Cluddaun between January 2013 and May 2014, using a temporary "Metmast" weather station. In its decision, Coillte did not disclose the wind speed data collected by the on-site Metmast, but stated the wind data gathered from the Metmast "accords with" the wind speed information contained in Section 2 of the Environmental Impact Statement prepared for the development. Coillte stated that the EIS statement of wind speed was taken from the Irish Wind Atlas published by the Sustainable Energy Authority of Ireland (SEAI). Coillte stated that the SEAI Wind Atlas "confirmed the site as a very good wind resource and suitable for wind energy generation."

The appellant requested an internal review on 24 April 2016, pursuant to article 11 of the AIE Regulations. In an internal review decision of 13 May 2016, Coillte affirmed its earlier decision not to disclose the on-site wind speed measurements on the basis that the exception to disclosure under article 9(1)(c) applied to the information. Coillte clarified that the on-site measurements accorded with the 2003 wind atlas, and not the later 2013 wind atlas. Coillte also suggested that the exceptions to disclosure under articles 8(a)(iv) and 9(1)(d) could apply to the information. Coillte stated that it had taken the public interest into account in refusing the appellant's request.

The appellant appealed Coillte's decision to my Office on 12 June 2016.

Scope of review

Under article 12(5) of the AIE Regulations, my role is to review Coillte's internal review decision and to affirm, annul or vary it. Coillte provided my Office with copies of the Cluddaun Metmast data for the purpose of my review. I have also had regard to submissions made to my Office by the parties.

The AIE Regulations transpose Directive 2003/4/EC into Irish law. This Directive implements the first pillar of the 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). In making this decision I have had regard to the Guidance for Public Authorities and others on implementation of the Regulations (May 2013) published by the Minister for the Environment, Community and Local Government [the Minister's Guidance]; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide].

Coillte's Position

Coillte made two submissions to my Office on this appeal. Coillte contended that information on wind speed did not fall within any of the six categories set out in the definition of "environmental information", as provided by article 3(1) of the AIE Regulations.

Article 7(3)(a) of the AIE Regulations provides that, where an AIE request is made in a particular form or manner, access shall be given in that form or manner unless the information is already available to the public in another form or manner that is easily accessible, or access in another form or manner would be reasonable. Coillte submitted that the wind speed measurements recorded at Cluddaun were "effectively the same" information as the data contained in the 2003 SEAI Wind Atlas. Coillte submitted that "no case has been made out to Coillte as to why the publicly available SEAI Wind Atlas is insufficient".

Article 9(1)(c) provides that an AIE request may be refused where disclosure would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest. Coillte characterised its wind speed data as commercial and industrial, on the basis that this information informed the design, financing and business case for a wind farm development. Coillte contended that the common law duty of confidence provides for the confidentiality of this information in national law. Coillte also submitted that section 33 of the Forestry Act 1988 protected commercial and industrial confidentiality for the purpose of article 9(1)(c)

9(1)(d) provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect intellectual property rights. Coillte submitted that it holds the copyright in this information. Coillte stated that the data has ongoing prospective value to Coillte and its partners "only for so long as the data remains confidential and not publicly available".

Coillte brought to my attention its statutory functions as set out in the Forestry Act 1988, and stated that it is obliged to carry on the business of forestry and related activities on a commercial basis. Coillte stated that the public interest was not served by disclosure of information which would interfere with its commercial objectives.

The Appellant's Position

In his appeal to my Office, the appellant submitted that disclosure of the wind speed information would not adversely affect commercial or industrial confidentiality. The appellant submitted that the wind speed data requested is specific to Cluddaun, a forested area, and is of little or no relevance to locations with different topology. The appellant also submitted that as planning permission for the development has been refused, commercial considerations no longer applied with regard to the information. The appellant also submitted that Coillte disclosed aspects of the wind speed information in its planning application and at an oral hearing held by An Bord Pleanála. The appellant submitted that a nearby wind farm disclosed detailed wind speed data in its Environmental Impact Statement.

The appellant submitted that public interest in disclosure outweighed the interest served by refusal, and referred to the public ownership of Coillte in this regard.

Analysis and findings

Consideration of the definition of "environmental information"

Coillte contended that the information requested was not "environmental information" as defined in article 3(1) of the AIE Regulations. With regard to paragraph (a) of the definition, which includes any information on the state of the elements of the environment, including air and atmosphere, Coillte stated that information on wind speed "does not impart any knowledge or insight" on the content or quality of the air or atmosphere. Wind is the movement of air caused by differences in atmospheric pressure. Wind speed data is therefore information on the state of air and the atmosphere, as a description of the movement of air in the environment at a particular place and time, and atmospheric conditions. I am therefore satisfied that information on wind speed falls within the definition of "environmental information" set out in article 3(1).

Consideration of article 7(3)(a)

Article 7(3)(a) provides that, where an applicant requests access to...