Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-140295-X1Z7T5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-140295-X1Z7T5
Published on
Whether the Department was justified in refusing the appellant’s request on the basis that no information within the scope of that request is held by or for it
14 November 2024
1. On 17 April 2023, the appellant submitted an AIE request to the Department, as follows:
“Have any meetings taken place between Minister for Agriculture, Food and the Marine Charlie McConalouge and salmon farmers or their representatives from IFA Aquaculture since 1st September 2020 to the present day?
If the answer to the above question is yes, please supply me with the FULL minutes of each of the meetings including the names of all who attended the meetings.”
2. The Department provided an original decision on 16 May 2023 which stated that the information requested is not held by the Department and cited article 7(5) of the AIE Regulations.
3. On 17 May 2023, the appellant submitted a request for internal review, as follows:
“…. I cannot understand why you say your department does not hold the information/documents I requested (minutes of [Minister’s] meetings), as I have in the past (11/7/2014) received minutes of meeting from [the Department] at which Minister Simon Coveney met with the Marine Harvest CEO Mr. Alf-Helge Aarskog. (Ref: AIE/14/0230).”
4. The Department issued its internal review decision on 13 June 2023, which upheld its original decision under article 7(5) of the AIE Regulations. The Internal Reviewer stated:
“Following an examination of material held by [the Department], no records relevant to your request have been located.”
5. The appellant brought an appeal to this Office on 6 July 2023.
6. I am directed by the Commissioner to conduct a review of this appeal. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the correspondence between the Department and the appellant as outlined above and I have considered the submissions made by the appellant and by the Department to this Office on the matter. 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. The thrust of the appellant’s statement of appeal, received by this Office on 6 July 2023, was that the Department is simply refusing to provide the information requested. The appellant submitted that, “[the Department] didn’t say that no meetings took place, [it] just said that no records relevant to [his] request have been located”.
9. In further submissions to this Office dated 2 August 2023, the appellant provided a number of website links to recorded lobbying activities, taken from the Register of Lobbying . He argued that these references prove that a num www.lobbying.ie ber of meetings had taken place between salmon farmers representatives from IFA Aquaculture since Minister Charlie McConalogue became Minister for Agriculture, Food and the Marine. The appellant submitted that “as most of the meetings were virtual meetings/social media/conference call meetings, they were meetings nevertheless and minutes of same should have been supplied to [him] under AIE Regulations”.
10. The appellant also noted that the Standards in Public Office Commission Guidance for Designated Public Officials (available at ) states, at page 15, that: "Public bodies and DPOs [Designated Public Officials] should… ensure that a proper record is maintained of all correspondence with a lobbyist on a particular matter. This might also include a record of casual or social encounters where the DPO considers a lobbying activity to have occurred”.
11. In submissions to this Office dated 11 August 2023, the Department outlined details of enquiries conducted in response to the AIE request, as follows:
“… No records were found to exist within the Aquaculture and Foreshore Management Division. Further enquiries were made with the Ministers Office, Marine Programmes Division and the Assistant Secretary of the Seafood and Marine Divisions Office. The Ministers Office noted the Ministers meetings with fish producers in the recent past and with IFA Aquaculture in February 2023 but could not specify if it dealt with salmon farmers per se. Further enquires were made with the Marine Programmes Division and the Assistant Secretary Office of the Seafood and Marine Division to clarify if any meetings and records of minutes taken existed of relevance to this request. Both returned stating no records existed.
… The appellant asked, had any meetings taken place between Minister for Agriculture, Food and the Marine Charlie McConalogue and salmon farmers or their representatives from IFA Aquaculture since 1st September 2020 to the present day? From my investigations I can find no records of meetings between the parties concerned. Whilst the Minister’s Office did note that Minister McConalogue met with IFA Aquaculture in February 2023, I can confirm that this was as a keynote speaker at the IFA Aquaculture Conference held on 23rd February 2023 and not a recorded meeting.”
12. On 25 September 2024, the investigator assigned to this appeal wrote to the Department seeking clarification regarding the steps taken to identify and locate relevant environmental information.
13. On 22 October 2024, further submissions were received from the Aquaculture and Foreshore Management Division of the Department, with additional explanation concerning how and where searches were conducted. The investigator provided the appellant with those details, and therefore I do not propose to repeat them here.
14. At this point, and in line with this Office’s established procedures, in circumstances where the Department had proffered further detail regarding the approach and steps taken to identify and locate information, the investigator asked the appellant to confirm whether they would like to continue with the current appeal. The appellant was also invited to provide any submissions or comments in response to the Department’s latest submissions.
15. On 5 November 2024, the appellant confirmed that he did not wish to withdraw the current appeal. The appellant’s response made no comment on the expanded search details provided by the Department, however he submitted that, “non taking of minutes at meetings with lobbyists is now commonplace to avoid transparency, which is shameful and makes a mockery of the AIE Regulations and the Aarhus Convention”.
16. Article 7 of the AIE Regulations establishes the conditions under which a public authority must deal with a request for environmental information. Article 7(1) seeks to ensure that public authorities are required “to organise the environmental information which is relevant to their functions and which is held by or for them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology, where available”. However, the AIE Regulations do not provide this Office with jurisdiction to review public authorities’ compliance with article 7(1).
17. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s decision and to affirm, annul or vary it. Accordingly, this review is concerned with whether the Department was justified in refusing access to information requested by the appellant on the basis that no information within the scope of that request is held by or for it.
18. This Office has no role in examining how the Department carries out its functions generally, or in examining whether or not a public authority should have created a particular type of record in carrying out its functions.
19. 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.
20. This Office’s approach to dealing with cases where a public authority has effectively refused a request under article 7(5) of the AIE Regulations is to assess whether adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied.
21. In its original decision, the Department did not provide any detail on the searches it performed to locate information in response to this AIE request. It can be noted that the Department’s internal review decision also provided no detail to the requestor regarding the approach and steps taken to identify and locate relevant environmental information. I wish to emphasise that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal, in accordance with the requirements of article 7(4)(c) 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.
22. A review by this Office is considered to be de novo, which means that it is based on an assessment of the circumstances at the time of the decision. In this regard, it is the case that the Department has provided considerably more detail regarding the approach and steps taken to identify and locate information when requested by this Office, in comparison with the information made available to the requestor as part of the first instance decision in this matter.
23. As part of a focused request for submissions issued by this Office, the Department was asked for confirmation of all areas searched, for details of all locations within these areas / the particular files (physical and/or electronic) searched and the search methods used. In response it outlined the specific arrangements of the Aquaculture & Foreshore Management Division (AFMD) of the Department regarding the filing, storage, retention etc. of information.
24. The AFMD is responsible for the management of Aquaculture licensing and Foreshore licensing in respect of Aquaculture and Sea Fishery related activities. The Department submitted that, “[i]f meetings occurred which included discussions of relevance to AFMD, not only would documentation exist but there would be AFMD staff in situ responsible for providing briefing material and would recall such meetings”. The Department also outlined details of searches carried out in a number of other sections considered relevant to the type of information sought in the appellant’s request, which had also yielded nil returns.
25. The Department was asked to respond to the appellant’s contentions that relevant meetings occurred and associated records should exist, with reference to the web links to recorded lobbying activities provided. In response, the Department submitted:
“The appellant initially requested full minutes of meetings between the Minister and salmon farmers and/or their representatives including names of those who attended meetings. The contention is that because there is a record of the Minister being lobbied by those in the aquaculture industry and the IFA that this is proof of official meetings and therefore written minutes exist. Lobbying communique can take many forms and not necessarily through minute meetings. The only example provided by the appellant where the Minister appears to have been present is a virtual meeting hosted by the Irish Business Employers Confederation.
The Standards in Public Office Commission [SIPO] guidance referenced by the appellant compels public bodies to record instances where lobbying occurs and ensure a proper record is maintained in this regard. The lobbying records provided by the appellant and available publicly would be the record as defined to by the SIPO guidance quoted. As outlined above, extensive searches have been undertaken within the Department and no records have been found.”
26. The investigator again asked the Department to confirm what section(s) of the Department (as a whole) would be in a position to clarify the nature of the meetings referenced in each of the links to recorded lobbying activities referenced by the appellant, including attendees of each of the ‘virtual meetings’ noted, and whether any associated minutes were recorded and are held by the Department.
27. In response, the Department submitted that the Minister’s Office had confirmed that no written records are held in relation to the links provided. It reaffirmed its position that, “[a]s well as the Minister’s Office, any other relevant divisions within [the Department] have stated they hold no records, namely, Marine Programmes Division, The Assistant Secretary of the Seafood and Marine Division and Aquaculture and Foreshore Management”.
28. The Department has outlined the details of searches carried out in processing the appellant’s request, which included electronic searches of relevant databases. The Department’s submissions also set out details of the enquiries made with a number of different sections within the Department to ensure that all relevant areas were searched for information relevant to this request.
29. Having considered the details of the searches provided by the Department to this Office, I am satisfied that it has taken adequate steps to identify and locate all relevant environmental information held by it in respect of the appellant’s request.
30. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I affirm the decision of the Department.
31. 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