Decision
Mr. X and Department of Housing, Local Government and Heritage
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-161186-X6T6C3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-161186-X6T6C3
Published on
Whether the Department had taken sufficient steps to identify and locate all relevant environmental information within the scope of the appellant’s request in accordance with article 7(5) of the AIE Regulations.
1. On 22 January 2025, the appellant emailed the National Parks and Wildlife Service (NPWS) in the Department to “express my concern over the recent shooting of the White-tailed eagle near Lough Owel in the Ballynafid/Portnashangan area as reported on your website” and sought clarification “if the NPWS had previously notified Westmeath County Council about the presence of this eagle in the area? Additionally, were any protective measures implemented by the council to safeguard this endangered species”. Also, the appellant requested “a copy of all correspondence between the NPWS and Westmeath County Council in relation to both Lough Owel and Ballinafad Lake and fen in relation to the proposed N4 upgrade”.
2. The Department issued a response on 18 February 2025, following which the appellant requested clarification and more detailed information.
3. Following an exchange of correspondence between the appellant, the NPWS and the AIE Office in the Department, the scope of the AIE request was agreed on 21 March 2025, as follows:
Request 1
“Records of the protective measures currently in place for the white-tailed eagle under Directive 2009/147/EC, specifically in relation to Lough Owel and Ballynafid Lake, and any correspondence with Westmeath County Council or the N4 project. Also a copy of GPS Data in the vicinity of Lough Owel and Ballynafid Lake of any White-tailed Eagle that were present in the area eg time spent in the location between 2008 and 2025. Also any correspondence with Westmeath County Council in regards to the white tailed eagle that could be implemented into the County Development Plan 2021-2027 or previous plans.
Request 2
Records of specific conservation actions that have been implemented to ensure compliance with the above directive.
Request 3
Records of conservation strategies or protective measures planned to strengthen the safeguarding of this species within the aforementioned habitats? Specifically in relation to the proposed route that would pass between Lough Owel and Ballfnafid Lake and Fen.
Request 4
Records of plans to reassess the Special Protection Area (SPA) designation for Lough Owel and the proposed Natural Heritage Area (pNHA) status of Ballynafid Lake?
Request 5
Any communication between NPWS and ROD-AECOM (who have been appointed by Westmeath County Council to provide engineering, traffic modelling, and environmental consultancy services) in relation to the proposed N4 Mullingar to Longford (Roosky) scheme, Also any reports that were communicated with the previous N4 upgrade in 2010. Also any correspondence with Department of Housing, Local Government & Heritage or any other agents that are associated with the project.
Request 6
Reports, assessments, or recommendations arising from any independent ecological assessments regarding the potential impact of the proposed N4 upgrade on designated conservation sites and protected species in the Lough Owel/ Ballynafid Lake and Fen conducted or commissioned by NPWS.
Request 7
Any relevant environmental assessments, studies, or policy documents that may inform future conservation actions in these areas.”
4. On 25 April 2025, the Department issued its original decision part granting the request which stated, “I have identified 36 records which relate to your request, I have decided that you should be granted access to all 36 of these records with some information redacted pursuant to Article 8(a)(i) of the AIE Regulations”.
5. The appellant requested an internal review on the 10 May 2025.
6. On the 11 July 2025, the Department issued its internal review decision and held that the “decision made by the initial decision maker should be varied as follows: the redacted records should be released in full and 3 additional documents found are also to be released”. Also, the Department provided the appellant with a response to his specific queries on a number of the records released.
7. The appellant appealed to my Office on the 05 August 2025.
8. 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 to correspondence between this Office and both the Department and the appellant. 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’).
9. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
10. In the present case, the Department failed to issue its internal review decision to the appellant within the prescribed one-month timeframe under the AIE Regulations. This was noted by the appellant in his submission to this Office, “the Department acknowledged receipt of my internal-review request on 12 May 2025” and “to my knowledge no formal internal-review decision was issued within the statutory one month period prescribed by Article 11(5) of the AIE Regulations 2007-2018.”
11. Article 7(2)(a) of the AIE Regulations provides “a public authority shall make a decision on a request and, where appropriate, make the information available to the applicant as soon as possible and, at the latest, but subject to paragraph (b) and sub article (10), not later than one month from the date on which such request is received by the public authority concerned.” Article 7(10) of the AIE Regulations provides a public authority shall, in the performance of its functions under this article, have regard to any timescale specified by the applicant. Article 11(3) of the AIE Regulations provides that an internal review decision “shall be notified to the applicant within one month from receipt of the request for the internal review.”
12. The appellant received the internal review decision on the 11 July 2025.
13. I note between the internal review request being received and the internal review decision issuing there was an exchange of correspondence between the appellant and the Department in which he sought detailed clarifications on the records released by the Department in its original decision. It is noted that the Department responded to the appellants request for clarifications on the records released as part of its internal review decision.
14. Whilst this request may have required an additional response and possibly have added to the Department’s delay, it must be acknowledged that the internal review decision issued to the appellant outside of the prescribed one-month time frame and that this represents a delay in the statutory timeframe, pursuant to article 11(3). I would urge the Department to take measures to ensure that decisions in respect of AIE requests are issued in a timely manner to ensure compliance with its statutory obligations.
15. In accordance with article 12(5) of the AIE Regulations, my role 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, I will require the public authority to make available environmental information to the appellant.
16. The scope of this review concerns whether the Department had taken sufficient steps to identify and locate all relevant environmental information within the scope of the appellant’s request in accordance with article 7(5) of the AIE Regulations.
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.
18. 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 relevant 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.
19. Article 7(5) of the AIE regulations allows a public authority to refuse a request if it does not hold the requested information. In order for a public authority to successfully rely on this provision, it must, amongst other things, provide evidence that it carried out adequate searches for the environmental information requested. 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.
20. 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. This Office has no jurisdiction over whether or not a public authority should hold environmental information relevant to a particular AIE request.
21. In his statement of appeal to my Office, the appellant stated “I do not believe the response I received appropriately addresses my AIE request. The information provided does not align with the specific questions I asked. The answers were unclear, disorganised and difficult to follow. On reviewing both my original request and the response, it is evident they do not correspond in a meaningful or structured way.”
22. On 12 August 2025, a copy of the appellant’s statement of appeal was furnished to the Department and it was invited to make a submission in respect of same.
23. In the Department’s submission dated 01 September 2025, it outlined the searches that were undertaken in relation to each of the appellant’s requests as follows:
Request no. 1
“Searches for records for this specific request was undertaken with staff from the Wildlife Enforcement & Nature Protection and Scientific Advice and Research Directorates who usually cover such tops but no records that fell within the scope were found.’
Request no. 2
“Searches for records for this specific request was undertaken with staff from the Nature Conservation and Scientific Advice and Research Directorates who usually cover such tops but no records that fell within the scope were found.”
Requests nos. 3, 4, 6 and 7
“Searches for records for this specific request was undertaken with staff from the Nature Conservation, Wildlife Enforcement & Nature Protection and Scientific Advice and Research Directorates who usually cover such tops but no records that fell within the scope were found.”
Request no. 5
“Searches for records resulted in records being found in the Development Applications Unit (DATS), in their case files for this proposed development. The records are held on the Development Applications Tracking System which is designed to hold documents and records of communications both internal and external relevant to the role of the Department as a statuary consultee. These constitute all of the records released to the requester. The records held on the DATS come from several different Directorates in the NPWS.”
24. This Office furnished a copy of the Department’s submission to the appellant for consideration. In his submission the appellant contends that the Department did not issue a valid decision under Article 7 of the AIE Regulations as it failed to give an adequate description of the searches undertaken and that the “assertion that no further records exist is implausible” as “several of the released documents (pursuant to request no. 5) clearly demonstrate NPWS involvement in hydrology, ornithology and statutory consultation or the N4 project.”
25. In relation to the 36 documents released under request no. 5 the appellant stated that these “relate almost entirely to planning-consultation correspondence” and outlined the following information “expressly sought” in the AIE request, the appellant stated that none of which appears in the records disclosed.
• GPS telemetry or Monitoring Data for White Tailed Eagles
• Correspondence on the December 2024 eagle shooting
• Water Framework Directive/hydrological data
• SPA/pNHA boundary or redesignation material and
• Internal conservation or policy guidance.”
26. The appellant is of the view that “For the NPWS – Ireland’s statutory conservation authority - to claim that it holds no environmental information concerning this SPA/SAC/Ramsar, pNHA complex is untenable and inconsistent with the Articles 6 and 12 of the Habitats Directive, Article 4 of the Birds Directive and Regulation 42 of the Planning and Development Regulations 2001 (as amended). Such a claim indicates either an inadequate search or a failure to record keeping and cannot satisfy Article 7(5).”
27. The appellant contends that the Department’s search and decision making with respect to this information request is “inadequate” and that the Department should be “directed to conduct a supplementary search and disclosure across all NPWS systems” and “to provide full reasons for any records withheld or confirmed as not held.”
28. On 30 January 2026, this Office requested further information from the Department regarding searches and steps undertaken to locate additional relevant environmental information and also sought a response to issues raised by the appellant as outlined above.
29. The Department responded by way of a submission dated 05 March 2026. It explained that on receipt of the appellant’s queries dated 22 January 2025, an officer from the Engagement, Corporate and Specialist Supports Unit after consulting regional staff (North Midlands Division) responded to the appellant on 18 February 2025 as follows:
“We followed up with regional NPWS staff regarding your question re the white tailed eagle and they advised they wouldn’t normally notify any Co Council with regards to the presence of an Eagle, they are a transitory species and may only stay in one location for a short period of time. Therefore there was no communication or correspondence with Westmeath Co Council on the subject. Investigations into the death of the eagle are on-going and we will continue to raise awareness and education in the areas in and around the lakes in Westmeath, as well as pursue any possible prosecutions.
I also checked with our Development Applications Unit regarding the second part of your query and they advised that they have received no referrals from Westmeath County Council regarding the N4 upgrade.”
30. In its response the Department provided additional details on the searches undertaken, following finalisation of the scope of the AIE request on 21 March 2025:
“The Department’s AIE Office sent the request (AIE 014 2025) to the Directors of the Scientific Advice and Research Directorate [named] and to the Wildlife Enforcement and Nature Protection Directorate [named] on 26 March 2025. Both Directors stated that no records would exist in their Directorates as the nature of the request was not relevant to their functions.
The request for records was sent to [named] (Director, Nature Conservation Directorate) who are responsible for several of the regional Divisions. [named] in this Directorate emailed the North Midlands Divisional Manager [named] and District Conservation Officer [named] with a request to search for records relating to the appellant’s inquiry on 1 April 2026 [sic]. [Named] received a reply from [named] dated 8 April 2025 addressing all the requests made by the appellant and stated that no records existed within the scope of the request.
[Named] then wrote to me on 8 April 2025, having exhausted her inquiries with the staff referred to above. The Development Applications Unit (DAU) within my Directorate ([named] indicated that they held records relating to point 5). Since these records were generated by staff formerly in my Unit then I agreed to be decision-maker for this request from the appellant.
I asked [named] in the DAU to provide me with access to these records, which are held on our Development Applications Tracking System (DATS). This system hold records of correspondence (internal and external), notes, reports and all material relating to the role of the NPWS as a statutory consultee on development proposals.
I accessed four relevant DATS cases dating back to 2011. These included records relating to
- Appropriate Assessment Scoping for N4 Mullingar to Longford (Roosky) Scheme Preferred
Route Corridor (July-August 2011)
- Pre-planning N4 between Mullingar and Longford (Roosky) (2020-2021)
- Further consultations on the above scheme (Feb-July 2021)
- N4 Mullingar to Longford (Roosky) Stakeholder Consultation – Emerging Preferred Route
Corridor (July 2024-Feb 2025
[Named] noted that “DAU didn’t find any records in relation to ‘any reports that were communicated with the previous N4 upgrade in 2010.”
I contacted the existing Divisional Ecologist in the North Midlands Division [named] to ask if he had any records relevant to the appellant’s request and provided a copy of the request. He responded by noting that his tenure in this role post-dates the time covered by the request.
Following the request for the internal review. We contacted staff who had previously been based in this location during the time period covered by the request. [Named] was Divisional Ecologist at that time and provided additional records which had not been saved on the DATS system. These records were relevant to point 5) on the appellant’s request and were provided as additional records.
Finally, during the course of addressing this appeal, I re-examined emails from regional staff in the context of the N4 upgrade and contacted them directly to verify that they had no outstanding records and specifically to seek any data held on white tailed eagles for the locations referred to in the request. [Named] North Midlands Division responded with records relating to locations of white tailed eagle sightings. I followed this up with [named] (White Tailed Eagle Project) and have two email records with location screenshots and GPS files. I can issue them to the appellant with the emails if you are happy for me to do so”.
31. The Department explained the basis for its searches as being representative of the appellant’s correspondence, “it is was clear to me from this correspondence that the appellant was focused on records relating to white-tailed eagle at Lough Owel and Ballynafid Lake; proposals for conservation strategies pertaining to this species at this location and the potential impact of the propose N4 upgrade at this location. It is on this understanding that the search for records was based.”
32. In further support of the Department’s position that it has undertaken reasonable and adequate searches and that additional environmental records do not exist, it provided information on the issues raised by the appellant in his submission.
33. In response to the appellant’s contention outlined at paragraph 24, the Department acknowledges that “some of the records provided in relation to pre-planning meetings on the N4 upgrade relate to environmental data or to other documents. The fact that these documents do not exist as records held by NPWS may be explained by the fact that such data was reviewed during meetings rather than sent as email. Examination of the discussion of other types of environmental data also suggests that hydrological and ornithological data being discussed at these meetings was not actually generated as records but may have been sought by the project consultants during scoping meetings.”
34. In relation to the 36 records released in its original decision pursuant to request no. 5 the appellant stated that these “relate almost entirely to planning-consultation correspondence and outlined the following information expressly sought in the AIE request, the appellant stated that none of which appears in the records disclosed information relating to his AIE request such as the those referenced at paragraph 25.
35. With respect to “SPA/pNHA boundary redesignation”, the Department confirmed it is “not aware of any proposals to reassess or “redesignate” these sites and this explains why no records were found.”
36. In relation to “internal conservation or policy guidance”, the Department stated that this aligns with request nos. 2 and 3 of the appellant’s original AIE request and “this term on its own is too broad so as to be able to isolate records.” The Department confirms that it “interpreted the specific conservation actions/conservation strategies/protective measures being those relating to white tailed eagle in the Lough Owel Special Protection Area” and “did not find any records of specific measures proposed for this species in this location.” The Department states that ‘Since white tailed eagles are at an early stage of colonisation in Ireland following reintroduction, many birds have not established territories and it may be too early to propose measures targeting specific locations. Since white tailed eagles are not included as a special conservation interest for the Special Protection Area, there is no statutory obligation to provide conservation objectives for this species at this site.”
37. In response to the appellant’s comments detailed at paragraph 26, the Department acknowledged that “Lough Owel is designated as a Special Protection Area, Special Area of Conservation, Ramsar site and is also a proposed Natural Heritage Area” and explains that “these designations are supported by significant amounts of scientific data, much of which is accessible on the NPWS website www.npws.ie. There are also several Wildlife Manuals that refer to benthic vegetation in Lough Owel. The Department stated that “If the appellant wishes to access the Conservation Objectives for the SPA or SAC or other environmental information for this specific area then much of this is publicly available via our website.”
38. Finally, I note that in its most recent submission the Department informed this Office that its interpretation of the scope of the original request focused on records relevant to it i.e. white-tailed eagle and the N4 upgrade. Although the Department did not locate records relating specifically to the “December 20204 [sic] Eagle Shooting”, it confirmed that “additional records relating to white tailed eagle including GPS data has been encountered during investigations during the preparation of its response and can be issued to the appellant.” The Department stated, “although it should be noted that these might be considered outside the scope of the original request.”
39. Having considered the explanations by the Department, both its decisions and submissions to this Office, I am not satisfied that the Department has carried out appropriate searches to identify and locate all environmental information relevant to this request.
40. It is noted that the Department did furnish the appellant with 36 records, and a further three identified by the Department during the course of this appeal, and that the Department provided explanations as to why records may not exist for some of the appellant’s requests, which may go some way to explaining why further information in relation to this AIE request does not exist.
41. However, for the Department to successfully rely on 7(5), it must, among other things, provide evidence that it carried out adequate searches for the environmental information requested. On 30 January 2026, this Office specifically requested further information from the Department on the “searches undertaken for each part of the appellant’s request, an explanation of how searches were carried out (i.e. manually, by computer), the files searched and the search methods used (e.g. by name, by date, by reference number, by key word)” and the Department was requested to “outline which individual staff computers were searched for each request and provide details of the records searched and the search methods used (e.g. by name, by date, by reference number, by key word).”
42. I acknowledge that in its most recent submission the Department provided a comprehensive account of the individual staff members that were consulted on this AIE request and those that undertook searches across relevant areas within the NPWS, further the Department provided an explanation as to why some of the records may not exist. On review of the details provided by the Department, I acknowledge that this case could be considered finely balanced, but there are key pieces of information missing that would go some way to persuade me of the adequacy of the searches i.e. a comprehensive account of how the searches were carried out by individual staff members, the files searched and the search methods used by these individuals.
43. In the absence of this information from the Department I cannot find that adequate steps were taken to locate all information relevant to the request. Accordingly, the Department was not justified in refusing access to the information sought under article 7(5) of the AIE Regulations.
44. I note the appellant’s concerns as set out in his initial submission to this Office, “I do not believe the response I received appropriately addresses my AIE request. The information provided does not align with the specific questions I asked. The answers were unclear, disorganised and difficult to follow. On reviewing both my original request and the response, it is evident they do not correspond in a meaningful or structured way.” The appellant’s request was clearly divided out into seven distinct parts, and unfortunately, I am inclined to agree that some of the responses provided are disorganised and difficult to follow. I am not persuaded based on what I have seen that adequate searches have been carried out in relation to each part of the appellant’s request.
45. It is my view that the most appropriate course of action to take in this case is to remit the matter to the Department for a fresh decision-making process to enable it to undertake searches for any information it may hold that may be relevant to the request and, thereafter, to issue a fresh internal review decision to the appellant in response to his request.
46. Having regard to the above I cannot find that the Department has taken adequate steps to identify and locate all relevant information held by it with respect to the appellant’s AIE request. As such I am unable to find that article 7(5) of the AIE regulations can be relied upon by the Department.
47. Accordingly, I annul the decision of the Department 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.
48. 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