Decision
Mr X. and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144897-R4V7R1
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144897-R4V7R1
Published on
Whether the Department was justified in refusing access to environmental information coming within the scope of the appellant’s request on the basis that no further relevant environmental information is held by or for it.
8 September 2025
1. On 14 November 2023, the appellant requested the following information from the Department:
“All information which informed the inclusion of the requirement for a User to 'Accept' a disclaimer / Terms of Use before access can be gained to the FLV.”
2. On 21 November 2023 the Department issued its original decision – refusing the information sought under“Article 8(a)(iv) as the information requested is subject to legal professional privilege.” It also stated that it had carried out a public interest balancing test in accordance with article 10(3) and 10(4) – and found that the public interest would not be served by disclosing the information requested. It did not provide a schedule of records or give details of the information identified as being relevant to the request.
3. On 27 November 2023 the appellant requested an internal review of the Department’s decision. He said:“I wish to request an internal review of this decision. No schedule of records has been provided and the decision maker has not demonstrated that the exemption applies in the case of the requested information. The weighing of the public interest case is inadequate.”
4. 13 December 2023, the Department issued its internal review decision affirming its original decision to refuse the request on the basis of article 8(a)(iv) – that legal professional privilege applies.
5. The appellant appealed to this Office on 22 December 2023. In his preliminary submission he made the following points:“No adverse effect has been demonstrated to justify the exemption applied. No Schedule of Records has been provided. When I sought a Schedule of Records in order to inform my next steps DAFM did not respond (correspondence attached). It is not clear to me whether DAFM has actually tried to identify any information in relation to this request or whether they have just refused it on a point of principle. Notwithstanding the fact that the validity of the exemption applied has not been demonstrated the weighing of the public interest case is generic and inadequate. I do not consider that this request has been processed consistent with the requirements of the Regulation.”
6. On 5 March 2024, the Department emailed this Office saying it had changed its position. It was granting release of 3 records in relation to the appellant’s request. The appellant was dissatisfied with this and stated:“what has been provided is very decontextualised and I find it difficult to accept that this all of the information covered by my request. I would expect the information to tell a story but it doesn't. Can you please detail all of the reasonable steps that you have taken to identify records falling within the scope of my request.”
7. On 21 October 2024, the Department emailed a response to the appellant“I agree with the original decision maker, with the records that were found where it was quoted “the information sought under Article 8(a)(iv) as the information requested is subject to legal professional privilege.” Nonetheless, within my research and review I espied a further 17 records, which I have scrutinized and lamentably they do not fall within the scope of your request, so would not be released in this particular context.”
8. The appellant responded to the Department, “can you please issue a formal decision. I would also point out that the OCEI has found that LPP falls more correctly under Article 9(1)(b) of the Regulations. In either case, a refusal under Article 8 or 9 is subject to a weighing of the public interest._”
9. In July 2025, the Department clarified with this Office that its position was that searches were carried out and that no further records within scope exist. The Department also added that, in any event, the requirement to click the disclaimer/terms of use had by that stage been removed from FLV, therefore the Department stated it could be possible that the appellant would prefer to withdraw his request for information. This was brought to the appellant’s attention but he still required a formal decision in relation to his appeal – adding that the fact the Department attempted to withhold information on the basis of the exemption provided for under article 8(a)(iv), indicated to him, that information within scope of the request must exist.
10. On 8 July 2025, an investigator from this Office wrote to the Department requesting a focussed submission in relation to the searches carried out by the Department for the requested information. The Department responded stating that it had identified a further 5 records, which it considered to be relevant to the appellant’s request. It stated that these records contained legal correspondence between the Department’s staff and its Legal Services Division. It proposed to refuse release of these records on the basis of article 9(1)(b) due to Legal Professional Privilege. The Department later contacted this Office, reverting to its previous position (as set out in paragraph 9), confirming that the 5 aforementioned records were not relevant to the original AIE request and therefore required no further consideration at appeal stage.
11. My investigator communicated the Department’s position, including searches carried out, to the appellant who stated that he considered it likely that the Department has identified all of the information relevant to the appeal. The appellant also made a number of points for consideration in relation to the Department’s reliance on article 9(1)(b) – legal professional privilege.
12. I am directed by the Commissioner for Environmental Information to undertake a review under article 12(5) of the AIE 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’).
13. 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.
14. As set out in the background, during the course of this appeal, the Department identified 5 further records which it said were relevant to the appellant’s request. However, having carefully considered the wording of the request and the contents of the records, I am satisfied that the records do not in fact fall within scope of the appellant’s request. The appellant’s request was for “All information which informed the inclusion of the requirement for a User to 'Accept' a disclaimer / Terms of Use before access can be gained to the FLV.” (my emphasis). While I must be mindful not to disclose the contents of the records at issue, it is clear that these 5 records concern the removal of the requirement for a user to accept a disclaimer.
15. I therefore am satisfied that these records do not fall within scope of the appellant’s request. As a result, the exemption relied on by the Department under article 9(1)(b), legal professional privilege does not arise. It will be open to the appellant to submit a new request for this information, should he deem necessary. I therefore consider the scope of this appeal to be confined to whether the public authority holds any further environmental information within scope of the appellant’s request.
16. 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.
17. The Department has set out that the AIE Officer contacted the Legal Services Division of the Department for any records or guidance they had in relation to the AIE request. It stated that in addition, the Assistant Principal Officer (AP) of Felling, Alleged Illegal Forestry and Forestry Support Unit was contacted to provide correspondence relevant to the request. Upon appeal to this Office, the Department identified information that was found to be relevant to the request which it granted in full to the appellant.
18. The appellant has noted in correspondence to this office that it is likely that the Department has identified all information in relation to his request. I note the appellant’s reasoning for continuing to want a formal decision in this case was that he has not had sight of the records at issue therefore, does not know whether the information falls within scope of the request (I have already determined that it does not) and whether the Department has appropriately applied article 9(1)((b) – legal professional privilege. He went on to state that“the issue of a public authority applying LPP for information that is not subject to legal proceedings is a major issue in my view and is contrary to transparency of government.” I have already found that the five aforementioned records are out of scope of the appellant’s request and therefore the issue of article 9(1)(b) does not arise.
19. Considering the detail provided by the Department together with the relevant records, I affirm the Department’s decision to effectively 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.
20. The Department has stated that there is no longer a requirement for a user to “accept” a disclaimer/terms of use before access can be gained to the FLV. Regardless of this, it is open to the appellant to make a fresh AIE request in relation to this issue– if he wishes to do so, in which case it will be incumbent on the Department to process the request in line with its legal obligations.
21. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department’s decision.
22. 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