Decision
Mr F and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-159449-B3H5B5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-159449-B3H5B5
Published on
Whether the Department was justified in refusing access to the requested environmental information on the basis that no relevant environmental information was held by or for it.
1. On 24 March 2025, the appellant contacted the Department requesting the following under the AIE Regulations:
“1) Assessments of the impact on carbon sequestration / emissions from forestry as a consequence of Storms Darragh and Eowyn.
2) An assessment of the impacts on water quality from forestry as a consequence of Storms Darragh and Eowyn.
3) Maps in GIS format of forest areas impacted by the two storms”
2. The Department responded to the request on 10 April 2025. It refused the request under article 7(5) of the AIE Regulations on the basis that the Department identified no records in relation to the appellant’s request. The Department outlined that the following searches were undertaken -
i. In relation to Part 1 of the appellant’s request, the Department set out that the Senior Inspector, in Forest Sector Development including forestry carbon reporting, identified no records relevant to your request searching his email inbox, own drive, eDOCs and paper records using the search words ‘carbon sequestration’, ‘emissions’, ‘Storm Darragh’ and ‘Eowyn’”.
ii. In relation to Part 2 of the request, the Department outlined that a Grade 1 Forestry Inspector, Head of Environment Division, and a Grade 2 Forestry Inspector, Subject Matter Expert in hydrology, met to identify any relevant records. The Grade 1 Forestry Inspector set out that “there are no records relevant to the request”. He also explained that the Department assesses each licence application on its own merits, and that part of this assessment includes assessing the potential impact on receiving waterbodies. He noted that this was the procedure pre-storm and continues to be the procedure for all applications post-storm. He further added that all licences utilised to deal with storm damage arising from Storms Darragh and Eowyn will have undergone this assessment.
iii. For searches relating to Part 3 of the appellant’s request, the Department explained that a Grade 2 Forestry Inspector, Subject Matter Expert in mapping was contacted. He stated that he had no records relating to the appellant’s request. He also stated that “the assessment of forest wind damage is ongoing at this time. These spatial data should be available by the end of April 2025, however, this date for completion of the mapping exercise is indicative only as cloud free satellite imagery is required to complete the mapping work and availability of cloud free imagery is weather dependent”.
3. The appellant sought an internal review of the Department’s decision on 10 April 2025.
4. On 9 May 2025, the appellant received an internal review decision from the Department which affirmed the original decision.
5. The appellant submitted an appeal to this Office on 3 June 2025.
6. 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 any submissions made. In addition, I have had regard to:
• 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);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE 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’).
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. 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.
9. Within his appeal to this Office, the appellant noted that he was limiting his appeal to Item 1 and Item 2 of his request. As such, Item 3 of the appellant’s original request is out of scope of this review.
10. Accordingly, the scope of this review is to determine whether the Department was justified in refusing access to the requested information contained in Item 1 and Item 2 of the appellant’s request under article 7(5) of the AIE regulations on the grounds that no information relevant to the request is held by the Department.
11. In affirming the Department’s original decision, the internal reviewer stated that the original searches ere reviewed in their entirety and also noted that the correct subject matter experts were contacted in relation to the request. He also re-quoted text regarding searches that had already been supplied to the appellant in the Department’s original decision. Beyond this, the Department’s internal review did not provide any further reasoning to the appellant.
12. The appellant provided a submission to this Office which has been considered. Within his submission the appellant set out a number of contentions following the Department’s internal review. The appellant contended that the Department provided no details of searches undertaken by the Forestry Inspectors in relation to Part 2 of his request. He also submitted that his request was “not limited to forestry licence applications but to the impacts of the storms in general on water quality. Storm damaged plantations may not be subject to a licence; storm damaged plantations may already have a licence in place”.
13. The appellant submitted that the statement"All licences utilised to deal with storm damage arising from Storms Darragh and Eowyn will have undergone this assessment” implies in his view that records exist. He also submitted that “if the impacts or consequences of storm damage on receiving waterbodies has been considered as part of any licence assessment then there should be specific information on this assessment in relevant licence documentation”. He contended that that information would fall within the scope of his request.
14. In relation to Part 1 of the appellant’s request, he contended that the Department provided no information on the number of matches that the Senior Inspector’s searches returned. He added that there is no information on how he filtered those matches to determine that no records falling within the scope of the appellant’s request were found.
15. The appellant also questioned why no Subject Matter Expert from the Ecology Section of the Department was contacted. He submitted that “impacts on water quality have consequent impacts on the species whose habitats are aquatic”. He further submitted that “there are multiple SAC's that are likely to have been impacted by the consequences of windthrown trees resulting from these two storms” and added that “surely the Ecology Section has carried out some form of broad assessment of the potential consequences a nd how they can be mitigated”.
16. The Department were provided an opportunity to provide a submission to this Office but no response was received.
17. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request, subject only to the provisions of the AIE Regulations. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned. In cases where a public authority has effectively refused a request under article 7(5), this Office must be satisfied that adequate steps have been taken to identify and locate rel evant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply. It is not normally this Office’s function to search for environmental information.
18. To my mind the Department has failed to set out in sufficient detail the steps it took to identify and locate relevant environmental information. Firstly, with regards part 1 of the appellant’s request, I note the Department have provided no explanation as to how the Senior Inspector arrived at the conclusion that no records relevant to the appellant’s request were found following a keyword search of his email inbox, own drive, eDOCs and paper records. Due to the specific keywords noted, that being ‘carbon sequestration’, ‘emissions’, ‘Storm Darragh’ and ‘Eowyn’, it is my view that due to the remit and work of the Department, a search for these terms would likely return a large number of results which would need to be filtered to determine if any were relevant to the appellant’s request.
19. However, the Department provided no detail as to the process undertaken that found no returned results were relevant to the request. In the absence of the Department providing a breakdown of any results which were returned on searching the keywords, nor explaining its position as to why, in its view, none of the returned results were in scope of the request, I cannot find that adequate steps were taken to locate all information relevant to the request.
20. Further, in relation to searches undertaken by the Grade 1 and Grade 2 Forestry Inspectors concerning Part 2 of the appellant’s request, beyond citing that both Inspectors are centrally involved with issues concerning water, the Department merely stated that there are no records available relevant to the appellant’s request. The Department did not provide any indication as to what searches were carried out to reach this conclusion.
21. Simply stating that no records exist without detailing adequate searches makes it difficult to assess the searches that have been carried out by the Department to reach that decision. It provided no detail of any specific search terms used, the specific physical files searched, or the specific electronic databases or main frame computers searched. In addition, the Department has not shown that it gave any consideration to any other individuals or sections consulted which may hold information relevant to the request.
22. Further, in relation to Part 2 of the appellant’s request, that being“An assessment of the impacts on water quality from forestry as a consequence of Storms Darragh and Eowyn” , I note the Department’s explanation that “the Department assesses each licence application on its own merits, and that part of this assessment includes assessing the potential impact on receiving waterbodies”. The Department further added that “all licences utilised to deal with storm damage arising from Storms Darragh and Eowyn will have undergone this assessment”. Based on this it is not clear how the Department concluded no records exist relating to impacts on water quality from forestry as a consequence of the Storms Darragh and Eowyn in circumstances where it appears particular licences were used that were subject to an assessment process regarding the impact on waterbodies. In any event as the Department have provided no search details for this part of the request I also cannot find that article 7(5) applies to Part 2 of the appellant’s request.
23. The Regulations do not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found, or, indeed, may have been destroyed in line with the body’s records management policies. The passage of time is also relevant factor in such appeals. It is also important to note that the Commissioner does not generally expect public authorities to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects a public authorises explanation of why a record does not exist. All that being said, and for the reasons I have set out above, I am not satisfied that the test set out in article 7(5) of the AIE Regulations - whether the public authority has taken all reasonable steps to locate the information sought – has been met in this instance.
24. Having regard to the above, I am unable to find that article 7(5) of the AIE Regulations can be relied upon by the Department.
25. Accordingly, I annul the decision of the Department in its entirety and direct it to consider the appellant’s request afresh and make a new internal review decision in accordance with the provisions of the AIE Regulations, and in particular the requirement to take adequate steps to identify and locate all environmental information held by it within the scope of the request.
26. 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.
Gemma Farrell
on behalf of the Commissioner for Environmental Information