Decision
Ms X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-150698-V3N1B5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-150698-V3N1B5
Published on
Whether the Department had provided the appellant with all relevant information in accordance with article 7(1) of the AIE Regulations and whether the Department had established that it did not hold any further information in accordance with article 7(5) of the AIE Regulations
10 December 2024
1. On 30 April 2024, the appellant submitted a request to the Department of Agriculture, Food and the Marine (DAFM) seeking access to the following:
I. The dates of all meetings (including both face-to-face and virtual meetings) held in April 2024 between DAFM and Coillte. Information to include, inter alia, the dates of all:
a) Routine weekly meetings held between DAFM with Coillte
b) Meetings attended by the Minister of State (DAFM) with Coillte
II. Please provide information on all attendees (both DAFM and Coillte attendees) to all April 2024 meetings between DAFM and Coillte
III. Please provide, by email, a copy of the agendas and minutes (both handwritten and otherwise) for all April 2024 meetings covered by this AIE request
IV. Please provide by email, all information received by DAFM from Coillte in relation to all April 2024 meetings covered by this AIE request, whether received by DAFM prior to the scheduled meeting with Coillte or received by DAFM during the scheduled meeting with Coillte
V. Please provide by email, all information received by Coillte from DAFM in relation to all April 2024 meetings covered by this AIE request, whether received by Coillte prior to the scheduled meeting with DAFM or received by Coilte during the scheduled meeting with DAFM
VI. Please provide copies of all informal notes / informal records etc, (handwritten information to be included) in relation to all April 2024 meetings covered by this AIE request, whether written/created during or after either the meetings and where the informal records etc relate to all, or any part, of the topics covered in any April 2024 meetings covered by this AIE request
VII. Please provide copies of all post meeting reports /updates etc. circulated within DAFM, from DAFM to Coillte and from Coillte to DAFM (e.g. emails, telephone notes/call, WhatsApp messages etc) regarding any topics covered at any April 2024 meetings covered by this AIE request
2. On 28 May 2024, the Department responded informing the appellant that it would part grant her request. It confirmed that “there is one record available which relates to 1 a), b) & 2. There are no records available for parts 3, 4, 5, 6 and 7”. The decision stated that in terms of the searches conducted, the decision-maker contacted a particular DAFM Forestry Inspector, who is the “subject matter expert” on the request, and that the Inspector returned an email reply to the request.
3. On the same day, the appellant requested an internal review of the Department’s decision.
4. On 25 June 2024, the Department issued its internal review decision. In doing so, it varied the original decision and it refused the appellant’s request under article 7(5) of the AIE Regulations. The internal review decision did not provide any additional detail regarding searched carried out.
5. On 21 July 2024, the appellant submitted an appeal to this Office.
6. I am directed by the Commissioner to 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 of Agriculture, Food and the Marine [and third parties if there are any]. [Where relevant: I have also examined the contents of the records at issue.] 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. 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.
8. This review concerns whether the Department was justified in refusing access to environmental information relating to meetings held in April 2024 between DAFM and Coillte, which falls under the scope of the appellant’s request on the basis that no further relevant environmental information is held by or for it.
9. In this case, the appellant contends that the Department should hold further information relevant to her 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”.
10. 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.
11. 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.
12. The appellant confirmed how the Department, having consulted only with the DAFM Forestry Inspector furnished her with an email containing details of two meetings held between DAFM and Coillte on Monday 8 April and Monday 22 April 2024.
13. Whilst the appellant acknowledged receipt of this information from the Department, she contended that all DAFM attendees to the relevant meetings should be consulted with, especially as the DAFM Forestry Inspector did not attend any of the meetings.
14. In its submission to this Office, the Department confirmed as part of its investigation that it consulted with the other attendees at the meetings held with Coillte in April 2024. As a result of this investigation, the Department says that it emerged that there had in fact been a third meeting held between DAFM and Coillte, namely on 29 April 2024. In turn, the Department notified the appellant of this finding and confirmed that there had been three meetings held between DAFM and Coillte, namely on Monday 8 April, Monday 22 April and Monday 29 April 2024.
15. In her submission to this Office, the appellant stated that she received information from Coillte in a different AIE request that she contends that she should also have received under this AIE request.
16. In response to this, the Department submitted that what Coillte holds for their own records is beyond its control to dictate or replicate in any way. Furthermore, the Department highlighted how administration is unique to the party (body), which performs it and therefore, contends that no two offices would administer internal information in the same way.
17. Having reviewed the records on file, I find that the Department has not set out sufficient detail on the steps it took to retrieve copies of relevant information relating to all or any part of the topics covered in any April 2024 meetings. I consider that the Department has failed to provide an adequate explanation of the nature of its search process. While the Department has confirmed that it contacted two particular DAFM Forestry Inspectors, it has not given any detail on the searches actually carried out by these individuals e.g. whether the searches included their email inboxes and file systems, what key words were used and whether any manual searches were carried out, The Department has not provided any of the type of detail that I have set out at paragraph 11 above. As well as this, the Department has not provided a sufficient explanation as to why these were the only two individuals that may have held information relevant to the request. It is not sufficient to simply state that a particular person is a “subject matter expert” in the area of a request, particularly in a request of this type.
18. It is widely accepted that the duty to give reasons arises not only by virtue of the AIE Regulations and Directive but that it is recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed.
19. Having considered all of the above, I find that the Department has failed to outline clearly what steps it undertook to search, identify and locate records relevant to the appellant’s request. I am not satisfied that the Department has established that it has provided all information sought to the appellant as required under the AIE Regulations.
20. In conclusion, having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Department’s decision under article 7(5) in this case. A new internal review process under article 11 of the AIE Regulations should be undertaken.
21. 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