Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153201-Q1D0Z5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153201-Q1D0Z5
Published on
Whether the Department had established that it did not hold any further information in accordance with article 7(5) of the AIE Regulations
03-13-2025
1. On 10 May 2024, the appellant submitted a request to the Department of Agriculture, Food and the Marine (Department) seeking access to the following:
“I wish to request under the Access to Information on the Environment Regulations, in electronic format; Information held by or for the Forest Service of DAFM in relation to their definition of what constitutes a material change to a licence application. To include any protocols / procedures / circulars relating to material changes”.
2. On 4 June 2024, the Department responded to the appellant, refusing the request stating“we have no relevant records in relation to this”. The decision stated in relation to searches conducted,“I contacted … (Forest Inspector), … (Forest Inspector) and … (Section Head of Ecology), who in turn contacted … (Forestry and Archaeology & Built Heritage Policy and Procedure, Divisional Safety Coordinator) and … (Head of Environment Service within the Forestry Inspectorate). Their responses are as follows:
“I am not aware of any formal “protocols / procedures / circulars” in relation to what does or not constitute a ‘material change’ apart from some references to the concept inter alia in the SOPs for Forest Roads (December 2023) and Afforestation (March 2024)”
and:
“… some references to the concept [have been included] inter alia in the SOPs (December 2023) for Forest Roads and Afforestation (March 2024). Otherwise, I am not aware of any formal “protocols / procedures / circulars” in relation to what does or not constitute a ‘material change’”.
3. On 4 June 2024, the appellant requested an internal review of the Department’s decision.
4. On 28 June 2024, the Department issued its internal review decision. In doing so, it affirmed its original decision and stated that:“DAFM personnel have confirmed that they have no physical records in relation to your request. The details of which have been outlined to you in the original decision letter”.
5. On 8 July 2024, the appellant submitted an appeal to this Office, in a related case, OCE-150333-D5J8H4 , which is available on our website, https://www.ocei.ie/en/ .
6. On 27 September 2024 the Office annulled the decision of the Department and directed the Department to issue a new internal review decision.
7. On 18 October 2024 the Department issued its internal review decision and affirmed the original AIE decision to refuse the request, stating“There are no actual records available which include protocols/procedures/circulars relating to material change”. Details of the search undertaken included;
“I contacted … (Forest Inspector), and no document/information was returned for this Internal review request. He carried out a search using the key words “Material change” on his personal email account.
… (Forest Inspector) was contacted, and no document/information was returned for this Internal Review request.
… (Section Head of Ecology) was contacted and replied to this request. She carried out a search of her email inbox and shared drive area using the key words “material change, Roads SOP, Afforestation SOP” and no records relevant to this Internal review request were returned.
I contacted … (Forestry and Archaeology & Built Heritage Policy and Procedure, Divisional Safety Coordinator) who replied to this request. He carried out a search using the key word ‘material change’ on his personal email account and stated the following: - “There was in person discussion from time to time of what a material change might be and I had one email where my thoughts on the topic were shared, but to the best of my knowledge DAFM senior management has never formally defined what constitutes a material change by means of a protocol / procedure / circular or similar document As such I would not consider the email a ‘relevant record’ as it speaks to definitions in the UK and not a DAFM definition.”
8. On 29 October 2024 the appellant submitted an appeal to this Office
9. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the Department and the appellant as outlined above and to correspondence between my Office and both the Department and the appellant on the matter. 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’).
10. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
11. 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.
12. The scope of this review is to determine whether the Department were justified in refusing access to the requested material under article 7(5) of the AIE regulations on the basis that there are no actual records available.
13. The general thrust of the appellant’s position is that the Department’s decision under article 7(5) of the AIE Regulations was not justified. The appellant provided a submission to this Office dated 07 November 2024 with comments/observations in support of his position. The appellant argued the Department failed“to demonstrate that all reasonable steps have been taken to identify information falling within the scope of my request” . While I do not propose to repeat the contents of same in full here, I can confirm that the Department was provided with a copy of this correspondence and I have had regard to it.
14. This appeal was accepted by this Office on 29 October 2024, and the Department were provided with an opportunity to make submissions on 31 October 2024. No response was received. A further request for submissions was sent to the Department on 13 February 2025, in which the Department was asked to provide full and complete details of the steps and searches it had undertaken, along with details of its record management, retention, and disposal policies, in respect of the information sought in this case. No response was received to this request, or to a reminder email sent on 7 March 2025.
15. 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 ”.
16. 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.
17. 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.
18. Article 7(5) of the AIE regulations allows 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, among other things, provide evidence that it carried out adequate searches for the environmental information requested.
19. While the Department outlined the details of some searches, I find that the details provided are not sufficient to justify refusal of the request based on article 7(5). Searches were limited to 4 individuals, primarily through personal email accounts. Three of the individuals conducted a keyword search for ‘material change’ on their email accounts, with one also conducting a search of a shared drive area. No details of the search efforts undertaken by the fourth individual were provided other than“no document/information was returned” . No evidence was provided by the Department of any other keyword searches and as the request also referred to ‘licence application’, a variety of keyword searches may have returned more information. The Department has not provided any of the type of detail that I have set out at paragraph 17 above.
20. References to “material change” were identified by the Departments in“SOPs for Forest Roads (December 2023) and Afforestation (March 2024)” , yet the Department dismissed these as not being relevant to this AIE request. Given the appellant’s broad request for“Information held by or for the Forest Service of DAFM in relation to their definition of what constitutes a material change to a licence application”, these references appear to be relevant to this request. References to “material change” in SOP’s suggest the existence of relevant information that was not fully examined. Even if there is no formal definition of what constitutes a “material change” within these SOP’s, they may contain guidance or general interpretations relevant to this request.
21. The Department also confirmed there had been“in person discussion from time to time of what a material change might be and I had one email where my thoughts on the topic were shared” . The email was deemed not relevant as the definitions contained within applied to the UK and were not a DAFM definition. Informal communications including emails, meeting notes, and memos may constitute environmental information under the AIE regulations and the Department have failed to demonstrate they have made all reasonable efforts to identify relevant information in relation to this request.
22. A broad interpretation of the AIE regulations requires thorough examination of all information potentially relevant to the request. Based on the information provided, I am not satisfied the Department took all reasonable steps to search for all relevant information. 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.
23. The Department did not respond to this Office’s invitation to make submissions, as contained in the email sent to it on 13 February 2025, in which the Department was asked to provide full and complete details of the steps and searches it had undertaken, along with details of its record management, retention, and disposal policies, in respect of the information sought in this case. 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.
24. Accordingly, I will annul the decision of the Department and direct it to carry out a new internal review process. This is an unsatisfactory outcome given that this will be the second time this request is remitted to the Department, which causes further delay for the appellant and increases the AIE workload of the Department. However, as the Department did not respond to this Office’s requests for further information this is necessary in the circumstances.
25. Having regard to the above, I cannot find that the Department has taken adequate steps to identify and locate all relevant environmental information held by it. As such, I am unable to find that article 7(5) of the AIE Regulations can be relied upon by the Department.
26. Accordingly, I annul the decision of the Department in its entirety. and the Department should provide the appellant with a new internal review decision in accordance with the provisions of the AIE Regulations, and in particular the requirement to take adequate steps to identify and locate all environmental information held by it within the scope of the request.
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