Mr Jim Redmond and Coillte Teoranta

• Case Number: CEI/14/0011
• Decision Date: 02 November 2015
• Issuer: Coillte Teoranta
• Applied Rules: Art.7(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr Jim Redmond and Coillte Teoranta

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/14/0011

Published on 2 November 2015

Note: This decision was appealed to the High Court. The High Court delivered its judgment in Redmond & anor -v- Commissioner for Environmental Information & anor [2017] IEHC 827 on 14 December 2017 in favour of the Commissioner.

The matter was appealed to the Court of Appeal by the appellant. The Court of Appeal delivered its judgment in Jim Redmond & Mary Redmond -v- Commissioner for Environmental Information & Coillte Teorantia [2020] IECA 83 on 3 April 2020 in favour of the appellant. It quashed my decision and held that, unless the appellant makes a new request for information to Coillte, the case should be remitted to me to reconsider.

Appeal to the Commissioner for Environmental Information

European Communities (Access to Information on the Environment) (AIE) Regulations 2007 to 2014 (the Regulations)

Appellant: Jim Redmond

Public Authority: Coillte Teoranta, Dublin Road, Newtownmountkennedy, Co. Wicklow (Coillte)

Issue: Whether Coillte was justified in refusing the appellant's request for access to information relating to the sale of land and trees at Kilcooley, County Tipperary

"This decision was judicially reviewed by the High Court and the Court's judgment is available at http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/f60cf3511d84e8ea802582390037281c?OpenDocument

Note: While the High Court upheld the Commissioner's decision, it found that it "erroneously referred to the date of March 2011 as being the date for the sale". OCEI apologises for any inconvenience caused by this error."

Summary of Commissioner's Decision

The Commissioner found that Coillte was justified in refusing access to information which was not environmental information and to environmental information which was not held by or for Coillte. Accordingly, the Commissioner affirmed Coillte's decision, while partly varying the grounds justifying refusal.

Background

In March 2011, Coillte sold its leasehold interest in 402.92 hectares of land at Kilcooley Abbey Estate, Thurles, Co. Tipperary, to a private buyer. On 22 May 2014, the appellant submitted an AIE request to Coillte, seeking the following items of information in relation to the sale:

1. On what date was the land lease for forestry at Kilcooley Abbey Estate purchased from Coillte by the new owner?

2. How many acres were purchased from Coillte and what other assets were included in the sale?

3. Who purchased the Coillte land/forestry at Kilcooley Abbey Estate?

4. What price was paid to Coillte for the leasehold of the forestry land or other leases at Kilcooley Abbey Estate?

5. What other parties and legal representatives were involved in transferring the lease to the new owner?

6. Provide details on who valued the leased lands/ forestry, and how the valuation was compiled.

7. What was the valuation of the leased lands/forestry?

8. Any information or correspondence on the proposed development of the lands/forestry at Kilcooley Abbey Estate.

Coillte gave notice of its decision on 11 June 2014. In the decision, Coillte: provided information relevant to item 1 and to the first part of the item 2; sought clarification on what was meant by item 8; and refused access to information relating to the other items on the grounds of commercial sensitivity, citing Article 9 of the Regulations.

The appellant replied on 23 June 2014. In relation to item 8, he said he was seeking information or correspondence on the proposed development of the land, forestry etc and information on rights of way to and throughout the land. He asked if Coillte had considered the impact which the disposal of the land would have on the environment and rights of way, and he sought information or a report on how this was assessed and the finding of that assessment. He also wanted to know who requested the issuing of contracts in 2011 and who Coillte issued the contracts to.

On 2 July 2014, the appellant requested an internal review of Coillte's decision.

On 16 July 2014, Coillte notified the appellant of its internal review decision. Coillte affirmed the original decision while varying the grounds for partial refusal: Coillte now maintained that refusal was justified on the ground that the information sought was not environmental information in the meaning of the Regulations. In relation to the question asking "what other assets were included in the sale", Coillte said that it had sold "a leasehold interest in trees". Coillte maintained that it had no information on, or involvement in, any proposed development of Kilcooley Abbey Estate.

Jim and Mary Redmond appealed to this Office on 7 August 2014. They acknowledged that the question posed in part 2 of item 2 had been answered, i.e. by the provision of the information that a leasehold interest in trees had been sold along with the land lease. They made it clear that they were seeking access to the information which Coillte had withheld on the ground that it was not environmental information, i.e. information which could address items 3 to 8 of the request.

Coillte provided a copy of the relevant records to my Office.

In conducting this review, I have taken account of the submissions made by the appellant and by Coillte. I have had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the Regulations (the Minister's Guidance); Directive 2003/4/EC (the Directive), upon which the 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).

Scope of Review

Under Article 12 of the Regulations, my role is to review Coillte's internal review decision and to affirm, vary or annul it. My review is concerned with whether Coillte's decision in relation to the information requested was justified. In this regard, I plan to address the following questions:

Question 1: Was Coillte's internal review decision justified because the information requested was not environmental information?

Question 2: If the information requested was environmental information, was refusal justified on the ground that such information was not held by or for Coillte?

Question 3: If the answer to question 2 is "no", was refusal justified under Article 8(a)(ii)?

Question 4: If the answer to question 3 is "no", was refusal justified under Article 9(1)(c)?

I regret the delay that arose in dealing with this review. The delay was due to a shortage of resources which has now been addressed.

Two preliminary issues arise in this case: standing and public participation.

Standing

This appeal was brought by Jim and Mary Redmond. The records do not show that Mary Redmond submitted a request for environmental information to Coillte or a subsequent request for internal review. Article 12 allows a person who was not the applicant to make an appeal to my Office only where that person would be incriminated by the disclosure of the environmental information concerned. Since this is not the case, I must find that Mary Redmond does not have standing to appeal to this Office. I therefore regard this appeal as having been made by Jim Redmond alone.

Public participation

In his submissions the appellant asserted that there had been no opportunity for public participation in the land sale. The provision of opportunities for public participation in environmental decision-making is an important part of the Aarhus Convention. However, in conducting this review my remit is confined to reviewing Coillte's internal review decision. I have no remit to investigate or rule on the provision of opportunities for public participation in decision-making. However, since the assertion that there was no opportunity for public participation will appear in the text of this decision, I feel obliged to say that records provided to me by Coillte show that it placed a newspaper advertisement and conducted public consultation in advance of the sale. I have nothing further to say about public participation.

Statutory Provisions

Article 3(1) of the Regulations provides that "environmental information" means any information in written, visual, aural, electronic or any other material form on --

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,

(d) reports on the implementation of environmental legislation,

(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and

(f) the state...