Decision
Ms X and The Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153898-F6F2Z8
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153898-F6F2Z8
Published on
Whether the Department was justified in refusing the appellant’s request on the basis that no further environmental information within the scope of that request is held by or for it
06 October 2025
1. On 12 September 2024, the appellant submitted an AIE request to the Department, as follows:
“[…] I refer to the Briefing Note for the Secretary General meeting with Coillte Chair and Coillte CEO on 12 June 2024 (AIE/24/491), copy attached.
Please provide, by email, all information related to the recently concluded consultation process with Forest Industries Ireland (FII) in relation to standard conditions for felling licences (refer to page 2 of the Briefing Note for the Secretary General meeting with Coillte Chair and Coillte CEO on 12 June 2024).
Please interpret this AIE request broadly. Please provide a schedule of records with the decision. […]”
2. On 25 September 2024, the Department issued its original decision, in which it stated it had identified 15 records as relevant to the request. It granted access in full to 12 of the records, and refused access to two records it described as unfinished documents under article 9(2)(c), and one record it described as internal communications of the Department under article 9(2)(d).
3. On 26 September 2024, the appellant submitted a request for internal review, raising three specific queries regarding the searches the Department had undertaken for relevant information and, essentially, arguing that further records should exist.
4. The Department issued its internal review decision on 25 October 2024, which varied the basis of its original decision. On foot of the appellant’s internal review request, the Department refused access to any further records coming within the scope of the request on the basis that “[…] there are no further records available for this request”. The internal review decision maker went on to set out details of the steps the Department had taken to search for and identify relevant environmental information. The Department concluded that, on the basis of those searches, it was “[…] satisfied that reasonable and adequate steps were taken to identify and retrieve information specific to this request.”
5. The appellant appealed to this Office on 22 November 2024.
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. 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 her internal review request, the appellant’s arguments were confined to her view that further relevant environmental information existed. Furthermore, in her application for review, the appellant contended that the Department had “[...] failed to demonstrate that all reasonable steps [had] been taken to identify the requested information before refusing the request under article 7.”
9. Accordingly, I am satisfied that the scope of this review is confined to whether the Department has taken all reasonable steps to identify and locate environmental information within the scope of the appellant’s request.
10. For the purposes of this decision, which will be published on our website ocei.ie, the names of staff members of the Department have been anonymised by this Office. No inferences should be taken from this anonymisation.
11. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. It 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.
12. 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 AIE 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.
13. 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.
14. In her internal review request, the appellant stated as follows:
“I request an Internal review of the decision dated 25 September 2024.
Inter alia,
1) the information provided is dated between 14/12/22 to 29/11/23. No follow-up information has been provided on the Planned Site Visit on 14 December 2023 and no information from 2024, despite the email of 29 November 2023 referring to 'further consultation'
2) no information has been provided on the searches undertaken by Mr. [A] and Mr. [B].
3) why have other members of the Forest Service not been contacted where it is clear that individuals other than Mr. [A] and Mr. [B].are involved. Mr. [C] is one example.”
15. In her appeal to this Office, the appellant made the following arguments:
• “DAFM has failed to demonstrate that all reasonable steps have been taken to identify the requested information before refusing the request under Article 7.
• There is no indication of the type of searches undertaken.
• There is some information on what search terms were used, but it is stated that
"[Mr. C] responded that an electronic search was done to check all folders on the Department Databases eDocs/Shared area and his own personal Drive and a check of his email account using key words: FII, Felling Mitigation, Felling Standards and he confirmed that no information exists."
It is inconceivable that these key word searches would produce no results. Therefore, it is not clear as to how Mr [C] determined that no information exists.
• It is stated that :
[Mr. B] responded that he carried out a search of his email account using key words: FII and Forest Industries Ireland and he confirmed that he found no records relating to your request."
The search terms used are more narrow than those of [Mr. C].
• The response implies that records matching the searches were found by [Mr. B], but there is no information provided on how [Mr. B] determined that any matched records were not related to the AIE request.”
16. In her submission to this Office, the appellant raised a number of additional queries in relation to the searches carried out by the Department in relation to this request, which I have considered.
17. As stated above, I must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. Although the Department did not make submissions in this case, the Department’s internal review decision provided adequately detailed information as to the searches the Department undertook in response to the request, and specifically with regard to the queries and issues the appellant raised in her internal review request, set out above. Those details included the following:
“Following the assignment of this Internal Review AAIE request to me I undertook the following searches:
• I contacted Forest Service Inspectors [Mr. A, Mr. B and Mr. C].
• [Mr. A] replied that he had provided all information relating to site visit and documents from 2024: Field Day Itinerary, Jan 2024 F11 Submission on felling conditions which were provided to you.
• [Mr. C] responded that an electronic search was done to check all folders on the Department Databases eDocs/Shared area and his own personal Drive and a check of his email account using key words: FII, Felling Mitigation, Felling Standards and he confirmed that no information exists.
• [Mr. B] responded that he carried out a search of his email account using key words: FII and Forest Industries Ireland and he confirmed that he found no records relating to your request.
• The use of the broad search terms allows for misfiled/misplaced records.
• The Department’s email retention policy is 2 years.
Following these detailed searches, I am satisfied that reasonable and adequate steps were taken to identify and retrieve information specific to this request.”
18. As set out above, the appellant raised queries in both her internal review request, her application for review, and her submission to this Office as to the quality of the searches undertaken by the Department. The appellant questioned the manner in which the Department’s staff members carried out their searches, including querying why there were differences between the search criteria used, what the date parameters of certain searches were and why more staff members had not been asked to conduct searches. The appellant also queried why one particular staff member did not search “[t]ext messages, WhatsApp Groups, written notes from meetings, etc.” and argued that it was “inconceivable” that the searches undertaken by one staff member using specific and targeted search terms relevant to her request did not produce more results.
19. From the arguments the appellant has made, and in particular from her submission to this Office, it appears to me that she is of the view that certain records falling within the scope of her request should exist. However, while I am conscious that she may genuinely hold such a view, this Office has no role in assessing how public authorities collect, maintain and disseminate environmental information. The role of this Office concerns reviewing appeals of requests for access to environmental information within the scope of a request, which is held by or for the relevant public authority. This Office has no jurisdiction over whether or not a public authority should hold environmental information relevant to a particular AIE request.
20. In addition to arguing that the searches carried out by the Department should have led to the identification of further environmental information, the appellant also argued that the Department provided “[…] no indication of the type of searches undertaken.” While the appellant may be dissatisfied by the results of the Department’s searches in response to her request, it is simply not accurate to say that it did not provide details of those searches. As set out above, the Department’s internal review decision specifically addressed the points raised by the appellant regarding the information she considered to be outstanding, and gave specific details as to the types of searches it carried out in respect of such information.
21. It is important to again note that where a public authority refuses a request for records under article 7(5) of the AIE Regulations, the question this Office must consider is whether the public authority has taken all reasonable steps to ascertain the whereabouts of relevant records. The AIE 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. It is also important to note that this Office does not generally expect public authorities to carry out extensive or indefinite general searches for records simply because an appellant asserts that more records should or might exist or rejects a public authority’s explanation of why a record does not exist. The test in article 7(5) is whether the public authority has taken all reasonable steps to locate the records sought.
22. While the appellant may be dissatisfied with the results of the steps the Department took to identify relevant information and consider that it should hold further information, I must assess whether the steps the Department has taken to identify the information it does holds were reasonable. That is to say, I must assess whether the steps taken by the Department meet the standard of reasonableness as it applies in this particular case. Given the details of the searches conducted by the Department, I am satisfied the Department has taken reasonable steps to identify all relevant information in this particular case. It is open to the appellant to make a new request to the Department for additional information, should she wish to do so.
23. For the reasons I have set out above, I affirm the Department’s decision to refuse the request on the basis of article 7(5) and I consider that adequate steps have been taken to identify and locate all relevant environmental information on this occasion.
24. 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 under article 7(5) of the AIE Regulations.
25. 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