Decision
Ms X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153030-L6F7T8
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153030-L6F7T8
Published on
Whether the Department was correct in its application of article 7(5) of the AIE Regulations.
3 April 2024
1. On 28 February 2024, the appellant requested:
I. Please provide, by email, information on the dates of all meetings (including both face-to-face and virtual meetings) held in February 2024 between DAFM and Coillte. Information to include, inter alia, the dates of all: a) Routine weekly meetings held between DAFM with Coillte b) Meetings attended by the Minister of State (DAFM) with Coillte.
II. Please provide, by email, a copy of the agendas and minutes (both handwritten and otherwise) for all February 2024 meetings covered by this AIE request.
III. Please provide by email, all information received by DAFM from Coillte in relation to all February 2024 meetings covered by this AIE request, whether received by DAFM prior to the scheduled meeting with Coillte or received by DAFM during the scheduled meeting with Coillte.
IV. Please provide by email, all information received by Coillte from DAFM in relation to all February 2024 meetings covered by this AIE request, whether received by Coillte prior to the scheduled meeting with DAFM or received by Coillte during the scheduled meeting with DAFM
2. On 26 March 2024 the Department responded informing the appellant that it was granting the request in full. One record was released in the form of an email thread which showed that the AIE unit of the Department had asked a relevant member of staff to address the appellants AIE request and included his reply to the unit in relation to each part of the request as follows;
Part I. (a) There are fortnightly meetings held between DAFM and Coillte. These took place on the 5th and the 19th in February 2024. There is no agenda or minutes taken by either parties for these bi-weekly meetings.
Part I. (b) no meetings took place which the staff member was aware of.
Part II. AIE 24 153 was not discussed in either of the bi-weekly meetings.
Part III. No records existed which the staff member was aware of.
Part IV. No records existed which the staff member was aware of.
3. The appellant requested an internal review on 26 March 2024.
4. The Department responded on 24 April 2024 informing the appellant that, after conducting some further searches and making enquiries with relevant inspectors within the Department it was varying its original decision and refusing the appellants request under article 7(5) of the AIE Regulations on the basis that no relevant records exist.
5. The appellant appealed to my Office for the first time on 27 May 2024. The Department were offered the opportunity to make submissions on the appeal, but no response was received.
6. The appeal was investigated by my office and a decision was issued on 30 August 2024. I annulled the internal review decision of the Department and directed that a new internal review decision should be issued to the appellant.
7. On 23 September 2024, the Department issued a new internal review decision where it varied the decision taken in the original AIE request and released 2 documents, in the form of 2 agendas for the relevant meetings.
8. On 21 October 2024, the appellant submitted a further appeal to my Office in relation to the Department’s new internal review decision dated 23 September 2024.
9. The Department has been offered the opportunity to make submissions on the appeal on a number of occasions, but unfortunately it failed to respond.
10. 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 the Department of Agriculture, Food and the Marine. 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); and
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
11. In accordance with article 12(5) of the AIE Regulations, the role of this Office 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, the public authority may be directed to make available environmental information to the appellant.
12. The scope of this review is confined to whether the Department has taken reasonable and adequate steps to identify all information held by or for it within the scope of the appellant’s request such that article 7(5) of the AIE Regulations applies.
13. I acknowledge that the increase in AIE requests and subsequent appeals in relation to forestry issues continues to be challenging for the Department, however I would encourage the Department to review its procedures for searching for environmental information, and take account of the requirement under article 5(1)(b) of the AIE Regulations for it to make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible.
14. The Department should also note that it is unacceptable for it to not respond to requests for submissions in support of its decisions from this Office. In future cases where this lack of engagement occurs, I may consider simply directing release of information which the Department has refused to release in relevant cases, or alternatively, using the powers provided to the Commissioner under article 12(6) of the AIE Regulations to require the Department to provide environmental information to this Office.
15. Article 7(5) of the AIE Regulations is the relevant provision of the Regulations when a request is refused on the grounds that a public authority does not hold the information sought, as follows:
“7(5) 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.”
16. In cases where refusal is based on article 7(5) of the Regulations, the reasons for the conclusion that no relevant information is held by or for the public authority should be provided to the appellant. 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. This Office must be satisfied that adequate steps have been taken to identify and locate relevant records, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply.
17. 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. 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.
18. During the course of the investigation the appellant in this case provided this Office with evidence which suggests that the Department may hold further records which are within the scope of the appellants original AIE request. This evidence was in the form of emails, a compliance memo, an agenda and a licence inspection report which do appear to relate to the meetings in question. The appellant had received this information from Coillte after submitting a similar AIE request to that public authority. This Office’s Investigator sent this evidence to the Department with a request for submissions on the Department’s position in this appeal and clarification on whether or not it held any further relevant records. The Department did not respond.
19. In addition to this the Department stated in the new internal review decision that it again contacted three named staff members. The first staff member advised that there are “no agendas or minutes for these meetings”. The second staff member stated that he had no agendas or minutes for the meetings, but did not provide any information on searches carried out by him in relation to the request. However, in the same decision, the Department informed the appellant that the third member of staff had located the agendas for the meetings in question, which it released, with no further reasons provided to the appellant. This clearly casts doubt over the information provided by the first subject matter expert, who stated that there are no agendas for the meetings in question, and whether any or not any adequate steps were taken to identify information relevant to the appellant’s request. This Office asked the Department for clarification on this matter but again, no response was received. While it may be the case that there is a reasonable explanation for the apparent conflict in the information provided, it is not possible for this Office to resolve this in the absence of engagement by the Department.
20. It is noted that the internal review decision provided the correct dates of relevant meetings in question to the appellant but did not specify why the incorrect dates were given in the first instance.
21. Given that a) the appellant has provided this Office with information relevant to this request that would appear to be held by the Department and b) the conflicting information provided by the Department staff in relation to this request, I cannot be satisfied that the Department has taken all reasonable steps to search for information relevant to this request. I will annul the new internal review decision dated 23 September 2024 of the Department. The Department should now issue a new internal review decision to the appellant, taking the above into account and providing details of all searches carried out to locate records which may be within scope of the original AIE request.
22. Having carried out a review under article 12(5) of the AIE Regulations, I annul the internal review decision of the Department. The Department should now issue a new internal review decision to the appellant.
23. 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.
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Julie O’Leary
On behalf of the Commissioner for Environmental Information