Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-134520-D1G1H3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-134520-D1G1H3
Published on
Whether the Department has complied with its obligations under the AIE Regulations in processing the appellant’s request
1. On 11 October 2022, the appellant wrote to the Department of Agriculture, Food and the Marine (the Department), requesting information as follows:
“Do the Pesticide Registration & Control Divisions (PRCD) hold records of all imports into Ireland of pesticides/biocides treatments for the eradication of sea lice on farmed fish.
If the answer to the above question is yes, please supply the names of each pesticide, the quantities imported and who they were imported to in Ireland from the 1st January 2018 to the present day.”
2. The appellant also stated in his request – “If your department does not hold these records, can you please inform me who does.”
3. On 14 November 2022, the appellant sought an internal review on the basis that no response had been received to his original request. No reply was received.
4. The appellant submitted an appeal to this Office on 16 January 2023 on the basis of a deemed refusal by the Department.
5. On 16 January 2023, this Office wrote to the Department requesting that it provide the appellant with a letter specifying its position in relation to the appellant’s internal review request and outlining reasons for this position, as soon as possible but no later than 31 January 2023.
6. The Department issued its position to the appellant on 20 January 2023, which stated as follows:
“We have been instructed by the OCEI to re-process your request. I have been liaising with the possibly relevant area with regards to your request. Please see observations below:
Erad Vet Meds has responsibility for the regulating and supply of veterinary medical products (VMPs) within Ireland – and I think Mr. [X] is clear in his final part of his request where he is seeking specific commercial information with regards pesticides being used.
Whilst we do keep records of what products are imported under Special Import Licence – we do not keep any records of VMPs that are imported naturally under EU authorisation. Pesticides are NOT VMPs so for the record we do not hold any information on any imported Pesticide data.
If Mr. [X] clarifies his query further and has any specific product in mind, then we will of course look to our records.
Would you be willing to reformulate your request in order for me to process accordingly please?”
7. The appellant submitted an appeal to this Office on 24 January 2023, on the basis that he was not happy with the response from the Department.
8. I am directed by the Commissioner for Environmental Information to complete a review under article 12(5) of the Regulations. In doing so, I have had regard to submissions made by the parties in this matter. I also have had regard to:
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Summary of Submissions
10. The Department wrote to this Office on 2 February 2023 and outlined a “list of events” in respect of the appellant’s request. The Department acknowledges that the request was received on 11 October 2022 and submits that it was “dealt with by a colleague who is no longer in [the Department] and it slipped through the cracks.”
11. The Department submits that, following instruction received from this Office to issue an effective position, various areas within the Department were consulted to determine the existence of relevant records. Copies of related internal emails were provided to this Office. The Department outlines that enquiries concluded that “the appellant had not supplied enough information in order for [the Department] to process the original request and that some of the records he was requesting were not in the remit of [the Department].” The Department submits that it requested the appellant to refine/clarify his request; however, the appellant came back to this Office with the current appeal.
12. The appellant made submissions to this Office on 13 February 2023 in support of his appeal. The appellant submits that it is “extraordinary that the Pesticide Registration and Control Division (PRCD) of [the Department] should claim that they don't hold records in relation to imports into Ireland of the amounts and types of pesticides (i.e. Emamectin benzoate, deltamethrin and Hydrogen Peroxide etc.) or "Veterinary Treatments” as they are commonly called in the salmon farming industry.”
13. The appellant submits that the Department “is the competent authority for all dangerous substances used in Aquaculture which includes salmon farming and according to Statutory Instrument No. 466 of 2008 , European Communities (Control of Dangerous Substances in Aquaculture) Regulations 2008.” The appellant argues that the Department “has the authority to acquire/seize documents of the use, amounts and types of pesticides/biocides from third parties… [and] … If Erad Vet Meds is an agent of [the Department] or Government, then the PRCD should have no problem acquiring the information from them.”
14. The appellant submits that he “has, in the past, asked [the Department] and the Marine Institute for similar information on pesticide use on salmon farms” and the answer he received was that “the Department does not hold these records and that it is only the salmon farm companies that hold these records”. However, the appellant argues that “it is stipulated in all salmon farm licences that, (a) The Licensee shall keep full records of all chemicals and antibiotics with which the fish have been treated, including quantities and times of use. etc. and, (b) The Licensee shall furnish promptly to the Department of Communications, Marine and Natural Resources, Coastal Zone Management Division (now the Department), such returns relating to the licensed areas as may be required from time to time.” The appellant’s submissions to this Office include a copy of a licence for the cultivation of salmon issued under the Fisheries (Amendment) Act 1997 (No. 3) in support of this argument.
15. The appellant queries “whether [the Department] are infringing the EU Habitats Directive by not keeping records of dangerous substances used on salmon farms”. Finally, the appellant submits that “consumers who purchase so called organic farmed salmon have a right to know that the product they are purchasing is truly organic and that whether or not pesticides/biocides or other dangerous chemicals have been used in any way in the rearing of these fish… [the Department] are denying consumers of that right in not making the records available to the public.”
16. This Office wrote to the Department on 13 July 2023, inviting it to provide further detail in a focused submission and including specific request to provide full and complete details of the steps taken to identify and locate information within the scope of the appellant’s request. No response from the Department was received.
17. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the Department’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, the Commissioner will require the public authority to make available environmental information to the appellant.
18. The scope of this review is confined to whether the Department has complied with its obligations under the AIE Regulations in processing the appellant’s request.
19. Article 7 of the AIE Regulations establishes the conditions under which a public authority must deal with a request for environmental information. The Minister’s Guidance outlines how a public authority must respond to (i.e. deal with and decide on ) a request as soon as possible and at the latest within one month of having received a request. (emphasis added)
20. It is reasonable to expect that a public authority may not be in a position to identify and retrieve information within the scope of a request if that request is formulated in too general a manner. This is recognised by the AIE Regulations and the Directive which allow public authorities to refuse requests on such a basis (see article 9(2)(b) of the Regulations and 4(1)(c) of the Directive). Article 7(8) of the AIE Regulations provides that where a request is made by an appellant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request.
21. The Department accepts that it did not deal with the appellant’s request until directed to do so by this Office. It is clear that the Department did not seek any necessary clarification within one month of receipt of the request, and did not issue a decision on the request within the timelines set down in the AIE Regulations. As such, that opportunity had passed when requested by this Office to issue an effective position in relation to the appellant’s internal review request.
22. It is clear from the background and submissions sections above that the appellant’s request was not correctly handled by the Department in accordance with the AIE Regulations. Fundamentally, the Department does not appear to have yet made a decision on the appellant’s request. It is unclear to this Office why the Department have encountered such difficulty in responding to this request, which appears to be worded in a quite specific manner. The first part of the appellant’s request explicitly enquired whether records were held by a specific section of the Department, i.e. the Pesticide Registration & Control Divisions (PRCD). I note from the following Department website - https://www.pcs.agriculture.gov.ie/ , that pesticides are regulated in Ireland by the PRCD to ensure their safe use and high levels of protection of human and animal health and the environment.
23. The copies of internal emails provided by the Department indicate a period of communications between the AIE team and various business units within the Department, in an effort to assign ownership and respond to the appellant’s request. It is the apparent from these emails that the effective position issued by the Department on 20 January 2023 was devised largely by information proffered by the ‘Veterinary Medicines (ERAD)’ business unit of the Department. Whilst it does appear that the PRCD was consulted by the AIE team, any contribution which may have been made by it was not provided to this Office for review, or indeed to the appellant.
24. Accordingly, I find that the Department has not complied with its obligations under the AIE Regulations in processing the appellant’s request, as it did not make a decision on the request within one month of the request being received. The Department has not yet issued a decision on the appellant’s request. I consider that the only available option to me is to remit this matter to the Department to make a first instance decision in accordance with the provisions of the AIE Regulations and to allow the appellant the option of an internal review, should he deem that to be necessary. I appreciate that remitting the case back to the Department causes further delay for the appellant. However, I do not believe that there is an appropriate alternative course of action to take in this instance, given the engagement with this request by the Department so far.
25. I note in his submissions to the Office, as outlined above, the appellant appears to have elaborated further on the type of information requested. However, if the Department continues to consider that the request is too general, the requester should be offered assistance in preparing a more specific request, this time in line with the requirements of article 7(8) of the AIE Regulations. If the Department remains of the view that no information within the scope of the request is held by or for it following engagements to refine the request or that the request has not been sufficiently refined, it should provide reasoning for that position to the appellant in accordance with the requirements of article 7(4) of the AIE Regulations and the general duty to give reasons as set out in cases such as Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90.
26. If no information within the scope of the appellant’s request is located by the Department, it should provide full and complete details of the steps taken by it in conducting relevant searches. Given the particular content of the appellant’s submissions, when considering the appellant’s request afresh, the Department should take note of article 3(1) of the AIE Regulations and the relevant definitions in respect of “environmental information held by a public authority” and “environmental information held for a public authority”.
27. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the Department’s decision and direct it to carry out a fresh decision-making process having regard to the comments above.
28. 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