Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-145200-F8Q8G1
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-145200-F8Q8G1
Published on
Whether the Department provided all information relevant to the appellant’s request in accordance with article 7(1) of the AIE Regulations, having conducted adequate searches such as to comply with article 7(5) of those Regulations
29 August 2024
1. On 6 November 2023, the appellant submitted the following request for information with the Department:
“All information related to the response provided to me on TFL00836522 on 2-11-23, to include;
1) Information of the investigation undertaken by DAFM to determine the dates on which Site Notices were erected and maintained pursuant to Regulation 4 of the Forestry Regulations.
2) Evidence to substantiate the date on which the Site Notice was first erected.
3) Evidence to substantiate the date on which the Site Notice was re-erected.
4) Information on the examination of case law on the validity of site notices for consented developments and activities and in the replacing or renewing of a notice that has been removed or become defaced or illegible in the period it is required to be erected and maintained, to include;
a) details of the members/s of staff who carried out the examination
b) a list of the case law examined
c) information to support the conclusion reached
d) legal advice sought and received
e) related correspondence”.
2. The Department issued a decision on 24 November 2023, granting “access to all [six] available records.” Reference was made in the decision letter to items 1-3 of the original request, but none to item 4.
3. On the same day, the appellant submitted an internal review request with the Department, contending that no information had been provided on item 4. However, this Office has had sight of an email exchange between the appellant and an officer in the FOI/AIE unit of the forestry service of the Department dated 6 December 2023 in which the appellant seeks an internal review of the Department’s decision “based on a deemed refusal.” It appears this arose from confusion regarding reference numbers on emails, and has no bearing on this appeal.
4. On 29 December 2023, the Department issued its internal review decision, affirming the original decision but attaching two further records related to the request which demonstrated, according to the Department, that “no further documentation” existed other than that already provided. The letter went into detail in regard to the searches for information that had been carried out by the Department. The internal review decision did not make any specific reference to part 4 of the appellant’s request.
5. Certain email correspondence ensued between the Department and the appellant following the internal review decision, revolving around a thread of email correspondence between Department officials prior to the date of the original request and in which allusion was made to a “substantive response” to issue to the appellant in respect of the validity of site notices (the subject of item 4 of the subsequent request) and also to an “attachment” to one of the emails in the thread that had not been provided to the appellant. This attached document was provided to the appellant later on the same day as the internal review decision.
6. On 10 January 2024, the appellant submitted an appeal to this Office in respect, only, of item 4 of his original request, maintaining that the requested information in relation to that item had not been provided and no reason had been provided under the AIE Regulations.
7. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In carrying out this review, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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);
d. the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
8. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. A review by the Commissioner is considered to be de novo, which means that it is based on the circumstances and the law at the time of the decision.
10. The scope of the review in this case is concerned with whether the Department has complied with articles 7(1) and 7(5) of the AIE Regulations such as to identify adequately all information that may be relevant to item 4 of the appellant’s original request through appropriate searches.
The Appellant’s position
11. The Appellant’s contentions are as follows:
a. The Department has not demonstrated the reasonable steps it took to identify the information requested in each element of item 4 of the request nor has indicated whether the information has been refused or granted; the Department’s response with regard to the reasonable steps it took is generic rather than bespoke to the request;
b. With regard to the electronic communication of 2 November 2023 between Department officials which stated “[I] will come back with substantive response to close off”, which is a pre-request reference to the response to be made by the Department to the appellant on the matter of the validity of felling site notices, the appellant states that the only other piece of correspondence from the author of that line is an email containing the phrase “as promised” with a document attached to the email but with no substantive content;
c. The inclusion of an attachment does not represent an examination of case law (sub-item b of item 4 of the request); the sender of the email has not directed its recipient to any specific case law in the attachment, the appended document does not appear to clarify any matter, relates to planning legislation and not the Forestry Regulations and therefore cannot support any conclusion reached (sub-item c of item 4 of the request);
d. Certain paragraphs in the case law consulted by the Department could not support the conclusion it reached in regard to what it considers to be the correct legal position on the erection of replacement felling site notices, particularly as the case relates to planning law and not the forestry regulations;
e. No evidence has been provided of any legal advice sought or searches for same (sub-item d of item 4 of the request); the Department’s assertion that no legal advice was sought on the matter at hand is an assertion and has not been substantiated, a question remains as to how it was determined that the legal section of the Department was not contacted;
f. The information requested has not been provided and no reason has been provided under the AIE Regulations;
g. Though additional information to that provided may not exist, should the Department consider the information not to exist, it should refuse it under article 7(5) of those Regulations and identify the reasonable steps taken to try to identify it;
h. Should the information exist and has been refused, the basis for the refusal should be stated;
i. It is reasonable to be given an understanding as to whether the Department’s position on a point of law is that of its legal section or that of the head of archaeology.
The Department’s position
12. As stated above, in neither the original nor the internal review decision letters that issued to the appellant was any reference at all made to item 4 of his request. The former set out each of items 1 to 3 of the request and gave a brief description of the information available in each case, stating that the Department was granting access to all six available records that “relate to [the] request”, and the latter affirmed the original decision but granted access to two further records to those already granted. These two records, the Department maintained, showed that “no further documentation is present after what you have already been provided with.” The internal review decision again set out each of items 1 to 3 of the request and a brief description of the information available in each case. This is in spite of the requester having drawn the Department’s attention to the omission of any reference to item 4 in his internal review request and to the fact that one of the email exchanges provided to him between Departmental officials infers the existence of an attached document which had not been provided to him. The latter decision did set out in some detail the searches that had been carried out by the Department in order to identify information relevant to the request.
13. The Department’s position on the matter of item 4, the subject of the appeal, is as follows:
a. The internal review extended the breadth of the search for relevant information to include the inboxes of more Departmental officials, including that of the Assistant Principal Officer of the “Felling Section”; full searches were detailed on the internal review decision letter;
b. The attached document the existence of which is inferred in one of the email exchanges between Departmental officials had been mistakenly omitted from the information already provided to the appellant but was provided when this omission was identified by the appellant in correspondence following his receipt of the internal review decision;
c. Additionally, clarification was given to the appellant in the email that accompanied the omitted document in relation to item 4 of the request, namely that there was no further information outside of what had been provided to him and that a search of the inbox of a named official had not been required, as correspondence to and from this official on the matter at hand had been covered by the searches of the inboxes detailed in the internal review decision, a clarification prompted by a question from the appellant in correspondence with the Department;
d. The appellant’s assertion in his appeal to this Office that the internal reviewer did not engage with him when seeking clarification regarding her decision is refuted by the fact of the email engagement identified in the previous paragraph;
e. In regard to the appellant’s assertion that the attached document that had been mistakenly omitted from the information provided to him but which he subsequently received has “no substantive content”, that “the inclusion of an attachment does not represent an examination of case law” [sub-item b) of item 4], that there had been no direction to any specific case law in the attachment, that the document did not appear to clarify any matter, that it related to planning legislation and not to the Forestry Regulations, that no information had been provided to support any conclusion reached [sub-item c) of item 4], and that no evidence had been provided of any legal advice sought or searches for same [sub-item d) of item 4], the Department states that:
i. the official who provided the attached document to a colleague in the cited email exchange (see paragraph 5) is the head of archaeology in the Department’s Forestry Service, is not part of any legal team and his advice is not that of a legal professional;
ii. no legal advice was sought on this matter from the legal services division of the Department;
iii. the opinion of the appellant that the document provided no substantive content does not equate to other records being available;
iv. the reasonable steps taken by the Department to identify information relevant to the request involved a diligent and systematic approach, ensuring that all potential sources within the Department’s control were explored and that when no other records could be found, screenshots showing this were provided also to the appellant.
f. The attached document alluded to in internal communications between Departmental officials and subsequently provided to the appellant was an Office of the Planning Regulator (OPR) publication with the title OPR Study Paper CSP06 – Planning Application Processing – An Analysis of Planning Authority Validation Processes, referred to in the relevant correspondence as the “OPE compendium”.
g. No other documents or case law were reviewed by the Department for the purpose of the matter at hand;
h. Apart from the official who provided the OPR compendium, no other member of staff of the Department carried out an examination of relevant case law to try to address the issue raised by the AIE requester;
i. The Department’s legal position on the matter of the date to be affixed to a replacement site notice was informed by the decision of the High Court in the case mentioned above, as well as by the plain reading of the statutory requirements for site notices for licensed felling as set out in Regulation 4 of the Forestry Regulations 2017 and the guidance and form issued by the Minister (for Agriculture, Food and the Marine) for the erection of a felling site notice contained in Circular 17 of 2022 – Revised Felling Site Notice, of September 2022 (Circular 17 of 2022);
j. No professional legal advice was sought or received either from in-house Departmental counsel or from external counsel on this matter.
14. The original request for information in this case arose from a response provided by the Department to the appellant in regard to the alleged removal and replacement of a felling site notice, licence reference TFL00836522. There was correspondence on this matter between the appellant and the Department between August 2023 and November 2023. In an email dated 2 November 2023 to the appellant, the Department stated that it had examined a compendium of case law on the on the validity of site notices for consented developments and activities and was satisfied that the licensee acted in full compliance with their statutory obligations.
15. It was the Department’s reference, in its response to the appellant of 2 November 2023, to an examination of “the case law on the validity of site notices” that formed the basis of item 4 of the request in this case, and to this subsequent appeal.
16. The crux of this appeal turns on whether the information requested by the appellant in item 4 of his request was, in fact, provided to him, and whether, if the information should not exist, whether the Department should have refused this element of the request under article 7(5) of the AIE Regulations.
17. At the stage of the original decision, the appellant was provided with an email thread of correspondence between officials in the forestry division in which the correspondence from the appellant regarding this particular site notice was discussed. The relevant assistant principal officer requested assistance from the head of archaeology in responding. In response, he stated that he would “look at the case law on the validity of site notices in the OPE compendium” and come back with a substantive response. The subsequent email stated “as promised”, but the appellant was not initially provided with any attachment to that email. The Department has confirmed that the attachments to that email were a) a copy of the OPR paper and b ) a draft of the response that issued to the appellant by email on the 2nd of November, as referenced above.
Was the appellant provided with all information relevant to item 4 of the request? In other words, did the Department conduct adequate searches and comply with article 7(5) of the AIE Regulations?
18. The appellant asserts that the information requested has not been provided and no reason has been provided under the AIE Regulations, that if the information requested does not exist, the Department should refuse it under article 7(5) of those Regulations and set out the reasonable steps it undertook in order to identify it, and that no evidence was produced by the Department to substantiate its assertion that no legal advice was sought on the matter from its internal legal division.
19. For its part, the Department sets out in detail in its internal review decision the searches it conducted to identify information relevant to the request, namely to items 1-4 of a four-part request, as follows:
a. A digital search of the Departmental database, iFORIS, for specific records relating to [licence ref.] TFL00836522.
b. A digital search of the Departmental database, ShareDrive, for specific records relating to TFL00836522.
c. A search for the physical file in Forestry Division storage basement.
d. A search for the specific physical file in vicinity of desk space area of personnel who were involved with the handling of these documents.
e. Direct contact with personnel who may have access to the information that was requested in AIE request.
f. A search for records in the following inboxes: Felling Section inbox, … personal inbox [of a named district forestry inspector], … personal inbox [of a named Assistant Principal Officer of the Felling Section of the Department’s Forestry Division].
20. It is regrettable that no mention is made in the internal review decision of item 4 of the request. If part of the request had been addressed with the level of detail that was provided to this Office, it may have avoided the need for this appeal. I do however note that the Department did engage with the appellant following the internal review decision and attempted to address this matter with him.
21. The assigned investigator to the appeal, in an effort to close off any possibility that other information might exist that was relevant to item 4 of the request, posed a number of probing questions to the Department during the course of his review of the appeal.
22. In its detailed responses, all of which were conveyed to the appellant for comment, it stated that:
a. The ‘OPR compendium’, together with the text of ‘the substantive response’ that was to issue to the requester in this case on the matter of the validity of felling site notices, were the only documents attached to the internal email sent from the head of archaeology of the forestry service to his colleague on 2 November 2023;
b. No other documents, case law or decisions, other than the decision of the High Court in Springview Management Ltd v. Cavan Developments Ltd. [2000] I.L.R.M. 437 ( Springview Management ), referred to in the OPR compendium, were reviewed as part of the examination of case law; this was the only specific case law examined by the head of archaeology of the Department’s forestry service;
c. The text of this decision was not circulated or shared with any other person;
d. No other Departmental staff member carried out an examination of relevant case law to try to address the matter raised by the appellant;
e. The Department’s legal position that the date of erection of a (including a renewed or replaced) site notice as the date the site notice was first erected, was informed by the decision in Springview Management (paragraphs 14 to 16) and the plain reading by a reasonable person of the statutory requirements for site notices for licensed felling as set out in Regulation 4 of the Forestry Regulations 2017 and the erstwhile applicable guidance and form issued by the Minister for the erection of a felling site notice, as published in Circular 17 of 2022 – Revised Felling Site Notice;
f. No professional legal advice was sought or received either from in-house Departmental counsel or from external counsel.
23. In addition, the Department commented on why it was the OPR compendium that was consulted in order to clarify the matter of the affixation of dates on replacement site notices, stating:
“It was considered that the OPR compendium document, dated April 2022, was likely to have identified the most relevant case law up to that point and to include summaries or key take home points from such cases highlighting best practice or key legal principles for planning or other environmental professionals, including any cases which while not strictly related to the Planning and Development Acts and Regulations, may have a bearing on functions thereunder or comparable functions exercised by other public authorities (including forestry).”
24. The Department has confirmed that no legal advice other than that described above was sought or received, and that it was the head of archaeology of the Department’s Forestry Service that instigated the review of the OPR study paper with a view to forming a legal position on the matter of replacement site notices. Further, in responses to this Office, the Department made known that if any legal advice had been sought and received, it would have been by way of email correspondence with the Department’s legal services division, and it would have been identified in the searches undertaken; none was found.
25. Based on the above, I am satisfied that the appellant has been provided with the OPR paper and related correspondence, and that this constitutes all information held by the Department in relation to parts 4(a), (b), (c) and (e) of his request. I am satisfied that no information is held by the Department in relation to part 4(d) of the request.
42. Having carried out a review under article 12(5) of the AIE Regulations, I am satisfied based on the detail given in regard to the searches undertaken by the Department together with the further detail provided during this investigation, that the Department provided all information held in relation to parts 4 (a), (b), (c) and (e) of the request. I affirm the decision of the Department in respect of those parts of the request. As the Department has confirmed that no legal advice was sought in relation to this matter, part 4 (d) of the request should have been refused under article 7(5) of the AIE Regulations. I vary the decision of the Department accordingly.
43. 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