Decision
Mr. F and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-154134-R9Z2T4
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-154134-R9Z2T4
Published on
Whether the Department conducted adequate searches to identify the information requested in accordance with article 7(5) of the AIE Regulations.
1. On 27 September 2024 the appellant made a request to the Department of Agriculture, Food and the Marine (the Department) requesting the following information:
“Information on felling licence CE02-FL0267 generated from the 15-9-24 onwards. To include all engagement between DAFM and Coillte. This includes details of all engagements/correspondence including telephone calls, text messages, WhatsApp messages, hand written notes, etc.”
2. On 22 October 2024 the Department issued its original decision in which stated it was granting the request and releasing the eleven records it had found. The Department noted that:
“There are a further 6 records in relation to the AIE request already in the public domain on the FLV. Accordingly, I have not attached these 6 documents to this Decision letter, as I deem it to be unnecessary to do so.”
3. On 23 October 2024 the appellant sought an internal review on the basis of their view that the Department had not taken exhaustive steps to source the information covered by the request, in particular, that no information was returned in relation to WhatsApp messages /groups, text messages and hand written notes relating to telephone calls.
4. On 26 November 2024 the Department issued an internal review decision affirming its original position. The Department stated that:
“Following the assignment of this AIE request, a digital search of the Departmental database, iForis and the FLV for specific records relating felling licence CE02-FL0267. In addition, subject matter expert Mr K (Forestry Inspector) was also contacted. Mr K confirmed that he conducted a search of his email Inbox using search criteria outlined in your AIE request, and this resulted in eleven records being returned to us. You also mentioned in your request that one of the contacts within Coillte is a Mr M. Searches of the emails supplied by Mr M found that there is correspondence with Mr B, which are attached. No information was returned in relation to WhatsApp messages/groups relating to your query.”
5. The appellant appealed to this Office on 2 December 2024.
6. I am directed by the Commissioner to c 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. 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’).
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
7. In his appeal the appellant noted that the internal review decision was issued outside the timelines provided for by the Department. I note that once the Department was made aware of this, it expedited the matter and issued the internal review decision the following day. I would ask the Department to take note of the timelines set out in the AIE Regulations and to ensure that systems are in place to ensure that decisions are issued on time.
8. In accordance with article 12(5) of the AIE Regulations, my role is to review the Department’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Department to make available environmental information to the appellant.
9. Pursuant to article 7(5) of the AIE Regulations, the scope of this review is to investigate whether the Department has taken all reasonable steps to identify the requested information.
10. In his appeal to this Office, the appellant contended, in summary, that:
(i) that the Department had not taken all reasonable steps to identify the information contained in the request, in full;
(ii) the Department had not clarified or provided information on further records which may exist in relation to communication (to include phone calls and emails) referred to within documentation provided by the Department as part of the original release of information.
11. With respect the points above, the investigator assigned to the appeal sought further information from the Department with respect to matters of any searches undertaken regarding WhatsApp messages, text messages and hand written notes relating to telephone calls, to include additional email attachments (other than what had been released) which would fall under the scope of the AIE request.
12. By way of response, the Department stated that searches of text messages and written notes were carried out by two names subject matter experts using the search term CE02-FL0267 and that no results were returned.
13. The Department further noted that the indication of an email attachment not released to the appellant had occurred because in converting an email for release to PDF using Adobe software, the software had picked up the image of the Department logo which appeared as an attachment.
14. The appellant was provided with an opportunity to respond to the submissions made by the Department, and raised a number of further queries regarding the source of handwritten notes that had been searched, whether WhatsApp messages were searched and whether the license number was adequate to identify information within the scope of his request. The appellant contended that “there has clearly been interaction between DAFM and Coillte for which no records have been provided”. The appellant provided information he had received from Coillte which related to a phone call related to the relevant site from a Department employee and noted that this employee had not been contacted.
15. Further clarification was sought from the Department. The Department confirmed that searches had been carried out of WhatsApp messages using the relevant license number as a keyword, and that no relevant messages had been found. The Department confirmed that there was no record of the phone call referred to by the appellant. The Department stated that the employee in question had not been asked to carry out any searches, as anything relevant to the scope of the request would have been uploaded by the Grade 1 inspector for Coillte licenses, who was consulted as part of the searches relating to this request.
16. In this case, the appellant contends that the Department should hold further information relevant to his request. Article 7(5) of the AIE Regulations is the relevant provision to consider, where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned. It provides as follows;
“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”.
17. What will be considered reasonable will vary from case to case, but as a general guide, I set out below the type of information that my Office would generally expect to be set out in a decision where a public authority is relying on article 7(5) of the regulations
(i) an outline of exactly which areas/units etc. of the organisation were searched for the information;
(ii) an explanation of how searches were carried out (i.e. manually, by computer, by name, by key words). Keywords should be recorded and provided in the decision as appropriate;
(iii) details of the individuals consulted in connection with the search;
(iv) a description of the searches carried out to cover the possibility of misfiled/misplaced records;
(v) details of guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of information requested in this case;
(vi) the basis on which the public authority has concluded that it does not hold any information within the scope of the appellant’s request and that no such information is held by any other person or body on its behalf.
18. This Office’s approach to dealing with this type of case 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. What will be considered reasonable will vary from case to case.
19. In its internal review decision to the appellant and submission to this Office, the Department outlines the steps undertaken with respect to searches for information relevant to the AIE request.
20. This includes steps taken when the AIE request was first received, outlined in point 4 above and, further details obtained when this Office sought further clarifications from the Department, outlined in point(s) 12 – 15. It is the Department’s contention that the 11 records it released to the appellant, alongside the further 6 records which are publicly available, represent the only records its holds, relevant to the scope of the request.
21. In his response to the Department’s submissions to this Office, the appellant queried what sources of hand written notes were searched by the relevant Department employees. I consider that a statement that the employee has searched handwritten notes is self-explanatory in these circumstances and do not consider that any further detail is required in the circumstances of the appeal.
22. The appellant further stated that “the search term CE02-FL0267 may not, by itself, be adequate to identify records that fall within the scope of the request”. The appellant has not, however, suggested any alternative search terms and I consider that given the wording of the request it was reasonable for the Department to use this as a search key word.
23. Finally, in relation to phone calls, I am satisfied given the searches carried out by the Department and the information already released, that the Department does not hold any further information, such as notes or records of phone calls, that is relevant to the request. The appellant states “at the very least the time and duration of that call falls to be released”. It may be the case that phone calls in relation to this license occurred, however given the above I am satisfied that no information relating to these calls is held by the Department. While the time and duration of a phone call may appear in a mobile phone call log, there would be no way of determining whether the call recorded in the log was relevant to this request. I do not consider it reasonable to require the Department to search for that type of information.
24. The appellant states “there has clearly been interaction between DAFM and Coillte for which no records have been provided”, however this appeal is confined to whether any further information relevant to the request is held by the Department, and not whether any interaction did or did not take place.
25. Having considered the submissions of the parties and the information already released by the Department, I am satisfied that the Department has taken reasonable steps to identify information within the scope of the request.
26. Accordingly, I will affirm the decision of the Department.
27. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm the decision of the Department.
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