Oliver Cassidy and Coillte Teoranta

• Case Number: CEI/13/0008
• Decision Date: 01 October 2015
• Issuer: Coillte Teoranta
• Applied Rules: Art.8(a)(i) Art.8(a)(iv) Art.9(1)(c) Art.9(2)(c) Art.9(2)(d), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Oliver Cassidy and Coillte Teoranta

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/13/0008

Published on 1 October 2015

1. Background
2. Scope of Review
3. Analysis and Findings
4. Material in the Course of Completion
5. Decision
6. Appeal to the High Court

**Appeal to the Commissioner for Environmental Information

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

Appellant: Oliver Cassidy, Cartron, Gaybrook, Mullingar, Co. Westmeath

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

Issue: Whether Coillte was justified in refusing the appellant's request for access to environmental information relating to wind energy projects

Background

In December 2012, Element Power Ireland Ltd (trading as Element Power) issued a press release announcing that it had signed a land lease option agreement with Coillte. The release stated that "the deal gives Element Power the potential to incorporate a selection of Coillte sites within clusters of wind farms being developed for the Greenwire Project across the counties of Kildare, Laois, Meath, Offaly and Westmeath". The Greenwire Project is a wind energy project aimed at constructing windfarms in Ireland to supply energy to the UK. Element Power is the parent company of Greenwire Ltd. For the purpose of my review I will regard Element Power and Greenwire as being a single corporate entity.

On 26 April 2013, the appellant wrote to Coillte requesting access to environmental information held by Coillte in relation to future wind energy projects including, but not limited to, the following points of information:

1. Details of locations (e.g. maps) currently being evaluated for future wind energy development.

2. Details of environmental (e.g. noise, ornithology, etc.) studies undertaken by Coillte for sites identified for future wind energy development.

3. Locations of land held by Coillte identified and agreed for use by Element Power in relation to wind energy export projects.

Coillte informed the appellant that it needed more time to respond to the request. On 28 June 2013 Coillte notified the appellant of its decision to part-refuse the request. Coillte provided access to information to answer point 1 of the request. In relation to point 2, Coillte said that environmental studies, once complete, would be submitted along with planning applications, where they would be available for public inspection. In relation to point 3, Coillte referred to the existence of a "Land Option Agreement" between Coillte and Element Power. Coillte refused to provide access to information which would identify the relevant locations on the grounds that "it would be premature to provide information on potential sites that might ultimately not be included in a planning application should they prove unfeasible".

On 15 July 2013, the appellant sought an internal review "in particular with regard to the Land Option Agreement and initial list of potential locations as outlined" in the original decision.

On 9 August 2013, Coillte affirmed its original decision to refuse to provide access to information relating to point 3 of the request. The reasons given were that disclosure would adversely affect commercial and industrial confidentiality and because the request concerned both material in the course of completion and the internal communications of a public authority.

On 28 August 2013, the appellant appealed to this Office for a review of Coillte's decision. 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.

Scope of Review

In conducting this review, I take account of: the submissions of the appellant and Coillte; the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the Regulations, dated May 2013 (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).

My function is to review Coillte's internal review decision and to affirm, vary or annul it in accordance with Article 12 of the Regulations.

A degree of "request-narrowing" took place in this case. Despite the original request being for information in relation to future wind energy projects "including but not limited to" three specific points, Coillte treated the request as having been limited to those three points. The appellant did not challenge this treatment of his request in either his request for an internal review or in his appeal and later submission to this Office. I therefore take it that the appellant acquiesced to this narrowing of his request.

In its original decision, Coillte made it clear that it had decided to grant access to the information which it held which was relevant to point 1 of the request. In relation to point 2, Coillte's position appeared to be that no such information was, at the time, held by or for it. Article 7(5) of the Regulations obliges a public authority, when the requested information is not held by or for it, to inform the applicant of that fact as soon as possible. The Regulations do not describe such an outcome as a "refusal", but Article 4(1)(a) of the Directive makes it clear that such an outcome constitutes a "decision to refuse". I therefore take it that Coillte, in its original decision, technically refused to provide access to information which would answer point 2 of the request. The appellant did not later claim that information which could address point 2 was in fact held by or for Coillte, in either his request for an internal review or in his appeal and later submission to this Office. In other words, he did not maintain that Coillte was withholding information of this type from him. I conclude that the appellant accepted this part of the decision.

In light of the above, I understand that the request for internal review was restricted to a request for access to information on point 3 of the original request, i.e. a request for access to information on the location of Coillte lands which had been agreed for use by Element Power in relation to wind energy export projects.

The Withheld Information

Following a request for the withheld records, Coillte provided this Office with a number of coloured maps. These maps are undated enlarged copies of Ordnance Survey Ireland 1:50,000 scale maps. Each map shows a number of named Coillte-owned forest properties. On each map, one or more of the forest properties is highlighted in yellow. According to Coillte, "the area highlighted in dark yellow on the maps is the area which has been optioned". In this context, "optioned" lands are Coillte-owned lands which were the subject of the Land Option Agreement previously mentioned. Following a request, Coillte provided a copy of the agreement to this Office. It is an agreement between Coillte and Greenwire Ltd and it is entitled "Option Agreement for Lease". I will refer to it as "the Agreement". Under its terms, Coillte allowed Element Power to conduct "test surveys" on specified lands for the purpose of assessing the feasibility of including those lands in the Greenwire project. The "optioned lands" are depicted on black and white maps of a different scale to the maps previously provided by Coillte. My investigator compared the different maps and established that the coloured maps provided by Coillte show the same lands as those specified in the Agreement. I am therefore satisfied that the coloured maps provided by Coillte depict the withheld information. I will refer to them as "the maps".

Plan of Review

Coillte has not argued that the maps do not contain environmental information. Nonetheless, I have decided to consider this question before proceeding to examine the decision to refuse access to the maps.

In light of the above, I consider that in conducting this review I should address three questions.

Question 1: Do the maps contain environmental information in the meaning of the Regulations?

Question 2: Was Coillte's decision to refuse access to the maps justified for the reasons given?

Question 3: Is there any other reason why refusal to provide access is justified?

Statutory provisions

The Regulations provide for mandatory refusal (subject to Article 10) in circumstances covered by Article 8.

Article 8(a)(iv) provides that refusal is mandatory where disclosure would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law, including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts.

The Regulations provide for discretionary refusal (subject to Article 10) in circumstances covered by Article 9.

Article 9(1)(c) provides that refusal is discretionary 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.

Article 9(2)(c) provides that refusal is discretionary where the request concerns material in the course of completion, or unfinished documents or data.

Article 9(2)(d) provides that refusal is discretionary where the request concerns the internal communications of public authorities, taking into...