From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-148830-G5P8H4, OCE-149546-R3C2V3, OCE-150328-W7P1D3, OCE-161053-N4Y3V0, OCE-161727-Q8D6L5
Published on
Whether the Department was justified under the AIE Regulations in refusing the information sought.
1. Each of these cases relates to a request for environmental information relating to
forestry. Following a recent review of all active OCEI appeals relating to decisions of the Department, OCEI Investigators engaged with staff of the AIE unit of the Department to discuss appeals where, following examination of the case file, it appeared the searches undertaken may not have been sufficient or records may have been withheld without adequate reasoning for relevant decisions having been provided to the appellant at original or internal review decision stage. The Department acknowledged that it may hold further environmental information within scope of the original requests which should be released to the appellant in the appeals subject to this decision and has agreed to re-examine the requests in full.
2. I am directed by the Commissioner for Environmental Information to carry out a review of these appeals under article 12(5) of the AIE Regulations. In carrying out my review, 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’).
3. In accordance with article 12(5) of the AIE Regulations, the role of this Office in each case is to review the Department’s internal review decision and to affirm, annul or vary it.
4. On 19 February 2024, the appellant requested information from the Department relating to a ministerial briefing note prepared in advance of a meeting with Coillte together with information regarding administrative support that had been allocated to the felling inspectorate. Whilst the Department acknowledged the request, the appellant did not receive a response from the Department within the timeframe prescribed by the Regulations.
5. Following a request for internal review on 19 March 2024, the Department part granted records in its internal review decision dated 17 April 2024, while failing to cite any articles under the AIE Regulations in the decision. The internal review advised that no further information within the scope of the request was found.
6. The appellant submitted an appeal to this Office on 8 May 2024
7. On 1 November 2022, the appellant requested all information in relation to the issue of the timing of the publication of forestry licences on the Department’s website. In its decision dated 23 November 2022, the Department released 7 records and noted that some information had been withheld under article 8(a)(iv) of the AIE Regulations. In its internal review decision dated 23 January 2023, the Department varied its decision and released further information. The Department relied on article 7(5) of the Regulations in its refusal of remaining records which the appellant believes should exist. The appellant appealed to this office and the matter was remitted to the Department for review on 12 December 2023.
8. Upon receipt of a new internal review decision dated 2 February 2024, the appellant remained dissatisfied with the information provided and appealed to this office. On 14 May 2024, this office found that the Department had not been justified in its refusal of the request and annulled the Department’s decision.
9. In its new Internal Review Decision dated 30 May 2024 the Department part-granted further records and cited article 9(2)(a) and 8(a)(iv) of the AIE Regulations for any information withheld.
10. The appellant remained dissatisfied with the Decision of the Department and submitted a further appeal to this Office on 5 June 2024.
11. On 16 May 2024, the appellant requested information which informed the change to a standard 5-year period for Coillte felling licences. In its original decision dated 31 May 2024, the Department refused the request under article 7(5) of the AIE regulations. The appellant requested an internal review and 2 July 2024. The Department issued its internal review decision, affirming its original decision and refused the information under article 7(5) of the regulations.
12. The appellant submitted an appeal to this Office on 8 July 2024
13. On 19 May 2025, the appellant requested information in relation to the Department’s procedure regarding the re-issue of suspended licences and the information which informed that procedure. In its original decision dated 11 June 2025, the Department refused the request under article 7(5) noting that no records could be identified within the scope of the request. In its internal review decision dated 9 July 2025, the Department affirmed its original decision and refused the information under article 7(5) of the AIE regulations.
14. The appellant submitted an appeal to this Office on 31 July 2025.
15. On 19 June 2025, the appellant requested any information linked to correspondence between the Department and the European Commission in relation to storm damage to forests. In its original decision dated 23 July 2025, the Department cited article 7(5) of the AIE regulations in its refusal of the appellant’s request.
16. In its internal review decision dated 20 August 2025, the Department annulled its original decision and released one record which fell within the scope of the appellant’s request. This record was granted in full, and no further articles were referenced under the AIE regulations.
17. The appellant submitted an appeal to this Office on 22 August 2025
18. Article 7(5) of the AIE Regulations is the relevant provision of the Regulations when a request is refused on the grounds that a public authority does not hold the information sought, as follows:
19. “7(5) 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.”
20. In cases where refusal is based on article 7(5) of the Regulations, the reasons for the conclusion that no relevant information is held by or for the public authority should be provided to the appellant. 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.
21. Article 8 (a)(iv) permits refusal to disclose information where to do so would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law, (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts).
22. When relying on article 8(a)(iv) of the AIE Regulations a public authority must identify the proceedings to which the information at issue relates and show that those proceedings have an element of confidentiality, that the confidentiality of those proceedings is protected by law, and that the disclosure of the information at issue would adversely affect the interest being protected. Further, as per Land Baden Wurttemberg at paragraph 69, “a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon.”
23. The public authority must demonstrate a clear link between disclosure of the specific information that it has withheld and any adverse effect. The risk of the confidentiality of the final stage of decision-making being undermined must be reasonably foreseeable and not purely hypothetical.
24. The term “proceedings” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, the CJEU in C-204/09 Flachglas Torgau GmBH v Bundesrepublik Deutschland set out that the concept of proceedings “refers to the final stages of the decision-making process of public authorities” (paragraph 63). A similar conclusion was reached by the CJEU in C-60/15 Saint-Gobain Glass Deutschland v Commission. Although that case dealt with Regulations 1049/2001 and 1367/2006 rather than the AIE Directive, it considered the provisions of the Aarhus Convention, upon which both the AIE Directive and the AIE Regulations are based. The Court noted “…Article 4(4)(a) of the Aarhus Convention provides that a request for environmental information may be refused where disclosure of that information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law, and not the entire administrative procedure at the end of which those authorities hold their proceedings” (paragraph 81). Also, Advocate General Szpunar in that case indicated that “the concept of ‘proceedings’ must be understood as covering only the deliberation stage of decision-making procedures” (see paragraph 51 of the Opinion).
25. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also 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, whether at internal review stage or through an appeal to this Office.
26. The judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 371 notes that “the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal”.
27. This view aligns with the decision of the Court of Justice of the EU in C-619/19 Land Baden Württemberg v DR. This decision contains some useful guidance in relation to the application of exceptions generally. The CJEU noted in particular, at paragraph 69 of its judgment: “As the Advocate General has observed in point 34 of his Opinion, [the] obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.”
28. Having carried out a review of these appeals, I consider that it is appropriate at this time to annul the decisions in each case and require the Department to provide the appellant with a new internal review decision in respect of each request. I am satisfied that had each of these appeals been investigated on an individual basis, the likely outcome is that each case would have been remitted at a later point as the Department has acknowledged that it is necessary for it to carry out further searches and/or to provide additional reasons in each case. I am also aware that the Department has in recent months added additional staff to its AIE unit, which will allow it to deal with these cases in an appropriate manner. By remitting the cases now, I consider that the appellant will receive any further relevant records held by the Department within scope of his original AIE requests in a timely manner and I am satisfied that the AIE regime is best served by remittal at this point, and that this is the most efficient way of progressing these appeals.
29. While I do acknowledge cooperation of the staff within the AIE unit of the Department following receipt of relevant appeals to this Office, I remind the Department again that it must have regard to the responsibilities placed on public authorities by the AIE Regulations. The Department must carry out sufficient searches for environmental information which is the subject to AIE requests and also provide appellants with satisfactory first instance decisions with a view to reducing the amount of decisions which are subject to appeal to this Office.
30. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Department’s decision in each of these appeals. The Department should now provide the appellant with a new internal review decision in each case. In reviewing each request, the Department should carefully consider its obligations under the AIE Regulations and ensure that the appellant is provided with fully reasoned decisions in all cases.
31. 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