Decision
Ms X and An Coimisiún Pleanála
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-159281-B3R4J9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-159281-B3R4J9
Published on
Whether ACP was justified in refusing access to the information requested by the appellant, pursuant to article 7 (5) of the AIE Regulations.
14 November 2025
1. In January 2023 the Interim chairperson of An Bord Pleanála appointed an independent Investigator, Lorna Lynch SC to conduct a scoping investigation into six governance areas. One such area concerned the use of two-person Boards. Ms Lynch examined two-person Board decisions from 2018 to 2022, particularly in relation to:
• “A statistical anomaly showing a very significant number of two-person Board decisions being made by a specific combination of two Board members.”
• “A statistical anomaly showing the vast majority of telecommunication mast files being decided by a specific combination of two Board members and a greater level of overturning of inspector’s recommendations to refuse permission on those files.”
2. In relation to telecommunication mast decisions, the investigator noted that the statistical anomalies were not desirable, however she relied upon the evidence of a Board member who indicated that there was “a change in policy emphasis towards facilitating mobile phone mast infrastructure, where possible.” The investigator concluded that there was not a sufficient basis to refer the matter to the Minister for further consideration regarding potential misconduct by Board members.
3. On 28 January 2025, the appellant made the following request to the ACP pursuant to the AIE Regulations:
A. All documentation concerning the rationale, decision making and implementation of the change in policy emphasis by ABP for telecommunications masts as referenced in the Statement by the chairperson regarding the Lorna Lynch (SC) report published on the ABP website on 27/01/25 (page 5) to include but not limited to- internal communications, meeting minutes, letters, memos, emails etc.
-External communications with government departments/ Comreg/ Telecommunications Industry Ireland/ Office of the Planning Regulator or any other stakeholders- (pertaining to the aforementioned change in policy emphasis for telecommunications masts)
B. All documentation concerning the dissemination of information on this change in policy emphasis for telecommunications masts to all stakeholders both within ABP and externally.
C. The name of the Board member referenced in the Chairperson’s statement on 27/01/25, page 5 which states-
“She relied upon the evidence of a Board member that there was a change in policy emphasis”
I ask this as it is reasonable to expect that this particular board member will have pertinent and relevant documentation pertaining to this AIE request.
4. ACP wrote to the appellant on 27 February 2025, advising that it would require additional time pursuant to article 7 (2) (b) of the AIE Regulations to deliver its original decision due to “the nature and complexity of the information requested requiring further consultation with relevant staff.”
5. The appellant wrote to ACP on 31 March 2025 advising that the one-month extension had now passed, and she sought an internal review of the matter, which was acknowledged by ACP on 02 April 2025.
6. ACP delivered its internal review decision on 01 May 2025. The ACP stated that it does not formulate policy and therefore refused the request under article 7 (5) of the AIE regulations, however it provided two records to the appellant in relation to category (A) and (B) of the request. ACP relied on article 9 (1) (b) and 8 (a) (i) of the AIE regulations to justify refusal to provide the information sought in respect of category (C).
7. The appellant appealed to this Office on 23 May 2025.
8. In correspondence with this Office dated 02 September 2025 the appellant confirmed that she wished to withdraw category C of her request/appeal.
9. 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 An Bord Pleanála. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
10. What follows does not comment or make findings on each and every argument advanced, however all relevant points have been considered.
11. The original and internal review requests were made to An Bord Pleanála. During the course of this Investigation, An Coimisiún Pleanála was established, replacing An Bord Pleanála on 18 June 2025. In this regard, I am satisfied that the appropriate title for the public authority for the purposes of this decision is An Coimisiún Pleanála (ACP). Any references to An Coimisiún Pleanála which predate 18 June 2025 refer to and include its predecessor, An Bord Pleanála. It is noted that Part 17, section 495 (3) of the Planning and Development Act 2024 provides that references in any enactment, legal proceedings or document to An Bord Pleanála shall, on and after the commencement of the section, be construed as references to An Coimisiún Pleanála.
12. No original decision was provided to the appellant, and I note the internal review decision was not provided to the appellant within the time period prescribed. The AIE Regulations are quite clear, at article 7(2)(a), that public authorities “shall make a decision on a request…at the latest…not later than one month from the date on which [a] request is received”. Given that article 10(7) of the Regulations provides that “[w]here a decision is not notified to the applicant within the relevant period specified in article 7, a decision refusing the request shall be deemed to have been made by the public authority concerned on the date of expiry of such period, the appellant as a result, sought an internal review of that deemed refusal and, in accordance with article 11(3), was entitled to receive a response “within one month from receipt of the request for the internal review.” The time for making a decision can only be extended if the conditions specified under article 9(2)(b) are met.
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 the appellant confirmed to this Office in correspondence dated 02 September 2025, that she wished to withdraw section (C) of her appeal, this appeal is limited to categories (A) and (B) of the appellant’s request.
15. I have considered the parties submissions and in particular, the appellants request that a new search be carried out. In the circumstances, I am satisfied that my review in this appeal is concerned with whether ACP was justified in refusing the information sought in categories (A) and (B) by the appellant under article 7(5) of the AIE Regulations.
16. In its internal review decision dated 01 May 2025, the ACP provided, in response to parts (A) and (B) of the appellant’s request, copies of two departmental circulars, namely PL01/2018 and PL03/2018, which issued in 2018.
17. The ACP concluded that no other relevant record exists and stated that it was important to clarify that it does not formulate policy but rather decides cases in accordance with planning and environmental legislation, national policy and guidance, Department circulars, statutory development and local area plans and submissions from relevant parties. The ACP concluded that the specific records requested are not held by or for ACP and accordingly it refused the request under article 7 (5) of the AIE Regulations. The ACP also surmised that the individual Board Members’ “perception of a change in policy emphasis communicated” to the investigator, “would appear to arise” from the circulars referenced above and provided to the appellant.
18. In correspondence with this Office dated 26 June 2025, the ACP reiterated that the requested records were not held by or for it and that the individual Board members perception of a change in policy emphasis would appear to have arisen from the circulars provided to the appellant. The ACP stated that it is not its role to “create or disseminate” policy documents on telecommunications masts. However, the ACP consulted with its legal team in respect of the request, who confirmed that the Board would not hold these records and the AIE team were provided with the two departmental circulars previously provided to the appellant.
19. Further, the ACP stated that the AIE process is bound by the availability of records, not by the appellant’s expectation of what records they believe ought to exist. The ACP advised that the search for records was comprehensive within the limits of the procedural norms of the ACP, and it does not hold any further records than those which have been provided.
20. Following on from a request for further information from this Office, in correspondence dated 19 August 2025, the ACP stated it does not fall within its remit to formulate policy; accordingly, it does not hold records relating to the request beyond the circulation of Departmental guidance and it pointed to the two circulars previously provided to the appellant which issued to it from the Department in 2018. The ACP also stated that such circulars are logged on its internal SharePoint page which is accessible to all staff and Commissioners and circulated to relevant staff where necessary.
21. The ACP advised that following receipt of this request, it “undertook a comprehensive search, liaising with the internal legal section and the directors of Planning, who accessed and confirmed the circulars as the only relevant records held.” ACP stated that the perception of a change in policy emphasis, as communicated to the investigator, Ms. Lynch SC by a former Board Member, appeared to have arisen from these two Circulars. The ACP confirmed the referenced Board Member is no longer employed by it.
22. The ACP also confirmed that it was unlikely such records would have been destroyed as there was no record or authorised destructed of any records relating to telecommunications mast policy, the scoping investigation or communications referenced in the request. As a change in policy in this area would originate from the Department, the ACP submitted that it has no destruction order or retention expiry applying to such material. The ACP also stated if the documents did exist, they would be retained either in the central records system or by the legal section or Directors of Planning. Given their significance, the ACP advised they would be readily identifiable.
23. The ACP also advised that the following searches were performed:
• Internal SharePoint site – keyword search (“telecommunications mast”, “policy”, “ComReg”) returned the two identified Circulars.
• Shared Departmental Drives– searched using similar keyword and date filters (2018–2025).
• Email Archives– searches carried out in relevant staff accounts using names, subject keywords, and date ranges.
• Secretariat Records – review of Commission meetings agendas and minutes for the relevant timeframe.
• Physical Files– checked for telecommunications mast-related files and policy references.
• Legal Section Records – consulted for any correspondence or memoranda regarding the Lynch SC investigation or telecommunications mast matters.
24. The ACP also advised that substantive changes in operational approaches arising from Government policy are communicated by:
• Circulation of Departmental or Ministerial Circulars,
• Updates to internal procedural guidance where required, and
• Inclusion in relevant training or Meeting Minutes
25. Further, the ACP stated that where no internally generated policy documentation exists — (as it says is the case in this appeal), the only documentation may be the externally issued Circular(s) and any associated cover correspondence. The ACP sated it did not produce internal briefing notes, revised manuals, or internal policy statements in relation to telecommunications mast decisions beyond applying the Department’s guidance.
26. In the appellants appeal to this office dated 23 May 2025, she stated that she had not received the requested information, and the two policy documents provided to her were already available to the public.
27. In submissions to this Office dated 23 June 2025, the appellant queried a number of matters. She asked is it credible to believe that the circulars provided would give rise to the perception of change of policy emphasis, and she queried if ACP were directed to the circulars by the Board member who provided the evidence to the Investigator or if it included them because they were “released during the frame of this request”. The appellant specifically stated that “it is highly improbably that these two circulars were interpreted by all key and engaged decision makers in ACP as a change in policy emphasis for all telecommunication mast appeals.” The appellant also opined that circular PL 01/2018 was restricted to “Section 254 licenses only.”
28. The appellant submitted that it is not credible that the circulars identified by ACP “can account for the Board members perception regarding the change in policy emphasis for the totality of telecom masts reference in An Examination of Certain Matters and provide a rational reason for the “the undesirable significant statistical anomaly.”” The appellant also argued that that these circulars are something that ACP must have regard to, and they are not binding. The appellant argued that it is highly improbable that these two circulars were interpreted by all key and engaged decision makers in An Bord Pleanála as a change in policy emphasis for all telecommunication mast appeals – “to a view that it was important to have mobile mast infrastructure where possible.”
29. With specific reference to article 7 (5) of the AIE regulations, the appellant stated that adequate searches must be conducted, and ACP had failed to provide details of the searches and no details of who and where such searches were carried out. The appellant opined that ACP simply stated that it does not have the specific records because they do not formulate policy and no details of who and where they sought information from. She argued that a “A change in policy emphasis cannot just happen, that it cannot be a passive process where all key and engaged stakeholders spontaneously reach “a view that it was important to have mobile mast infrastructure where possible.” The appellant also asked how this change of policy emphasis was shared among all key stakeholders. She also queried “How was it shared within An Bord Pleanála with due regard to the concept of proper planning and sustainable development. How were decision makers informed? I’m wondering if there were discussions, meetings re agreeing this change in policy emphasis? Was this information kept at Board level only or was it shared? Was it only shared with the same 2-person board who were the key decision makers for telecom mast decisions as per An Examination of Certain Matters? This is the environmental information I seek.”
30. Having received a copy of the ACP’s submissions dated 19 August, the appellant provided further submissions dated 02 September 2025 and commented that there was no reference to any consultation with the former board member by ACP and as a result she concluded that the search was inadequate. She also stated that there was no reference to a search of emails between the then chairperson and Lorna Lynch SC or of the material/records of the process of formulating the summary report. She stated, “there must have been meetings, discussions, agendas, meeting notes etc which may have included reference to the inclusion of this statement re telecommunication infrastructure in the final summary document and the evidence underpinning same.” The appellant further argued that no key word search of “Eir exchange” was carried out and she also reiterated that the circulars provided to her were not relevant to her request.
31. 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 to the provisions of the AIE Regulations. Accordingly, if a public authority wishes to refuse access to environmental information held by or for it, it must do so under an exemption provided for in the AIE regulations.
32. In this case, the appellant contends the ACP has failed to provide the requested information and she requested another search be performed. In the circumstances, 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.”
33. 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.
34. 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.
35. 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 & 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.
36. 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.
37. It is important to note that where a public authority refuses a request for records under article 7 (5) pf 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 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. The passage of time is also relevant factor in such appeals. 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. The test set out in article 7 (5) of the AIE Regulations is whether the public authority has taken all reasonable steps to locate the record(s) sought.
38. Article 7 (5) of the AIE Regulations does not require a forensic trawling exercise to be conducted by public authorities, rather a test of reasonableness and an adequate search exercise should be performed. I am satisfied that the appellants query “how was the change of policy communicated to key stakeholders” and that she “cannot know if my requested records exist or not” goes beyond the standard prescribed by Article 7 (5) of the AIE Regulations.
39. During the course of this investigation the appellant was provided with a copy of ACPs submissions for comment and any additional comments she wished to provide for consideration in the appeal. In response, the appellant in correspondence dated 02 September 2025 submitted that the two circulars released to her “cannot be considered as relevant…as they related solely to exempted development and development contribution for telecommunication infrastructure and not to masts that require a grant of planning permission…I do not accept that the circulars are relevant records”
40. In addition, the appellant also stated there is no information provided as to whether ACP asked the referenced former board member to identify the records which provided as evidence of a change of policy emphasis. Further she stated, there is no reference to a search of the email correspondence between the then chairperson and Lorna Lynch SC in 2024 discussed in an Irish Times article for any reference to the change of policy emphasis or discussions regarding the evidence provided by the board member regarding same. I note no reference to any search of the material /records of the process of formulating the summary report. She argued that there must have been meetings, discussions, agendas, meeting notes etc which may have included reference to the inclusion of this statement re telecommunication infrastructure in the final summary document and the evidence underpinning same. Regarding the key word searches used, the appellant noted that no search was conducted using the term “Eir exchange”. She stated that she noted this because it would appear the referenced statistical anomaly concerned grants of permission for telecommunication infrastructure on Eir exchanges.
41. It is my view that to require the ACP to make enquires from the former Board member, who is no longer an employee of the ACP, goes beyond the intended purpose of article 7 (5) of the AIE Regulations. Such a step would be excessive and goes beyond the reasonable and adequate search required of ACP. Further, in circumstances where ACP have confirmed it conducted searches of its emails, namely searches of its “Email Archives– searches carried out in relevant staff accounts using names, subject keywords, and date ranges” it is not required to specify searches performed between the then Chairperson and Investigator Lorna Lynch SC in 2024. I am satisfied that a search of its emails encapsulates such email correspondence, however, it would be helpful if further information was provided in this regard.
42. In relation to the appellant’s criticism of the ACP for failing to perform searches including the key words “Eir exchanges”, I am not satisfied that information containing these keywords would have necessarily come within the scope of the request or that it is necessary for the ACP to carry out a search for this key word in order to show that reasonable steps have been carried out to identify information relevant to the request. If the appellant wishes to access specific information relating to Eir exchanges, it is open to her to make a further request to the ACP.
43. I note the appellant also raised a significant number of queries in response to the ACP’s submissions. The AIE regime is not intended to be a questions and answer procedure. I am not persuaded by the appellant’s statement “I believe it is not credible that these circulars can account for the Board members perception regarding the change in policy emphasis for the totality of the telecom masts referenced” in the Investigation, in circumstances where the ACP have detailed the location, search words and personnel consulted in relation to this appeal.
44. Considering the circumstances of this appeal, I am persuaded based on the information before me, that the ACP has taken sufficient steps to determine that it does not hold environmental information relevant to the appellant’s request and accordingly, was justified in refusing the request based on article 7 (5) of the AIE Regulations.
45. In all the circumstances, in particular ACP’s explanation that it does not formulate policy changes together with the information in relation to the search terms used, the location of such searches and the personnel who conducted such searches, I am satisfied that the ACP has taken sufficient steps to determine that it does not hold environmental information relevant to the appellant’s request and accordingly was justified in refusing the request based on article 7 (5) of the AIE Regulations. For the sake of completeness, I note the appellant has the option to submit a fresh request for information beyond the scope of his original request should he wish to do so.
46. Finally, it is notable in this case that while I am satisfied with the information provided by the ACP to this Office following queries raised by the Investigator, no original decision was provided and the (belated) internal review decision provided to the appellant lacked sufficient detail to address the issues raised. I remind the ACP of its duty to give reasons, most crucially at internal review stage, when issuing decision under the AIE Regime. Had greater details been provided to the appellant at the internal review decision stage, it may well have avoided the appeal to this Office.
47. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm the decision of the ACP under article 7 (5) of the AIE Regulations.
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.
Julie O’Leary
On behalf of the Commissioner for Environmental Information