Decision
Mr. X & Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-157719-J2S2F8
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-157719-J2S2F8
Published on
Whether the Department had taken sufficient steps to identify and locate all relevant environmental information within the scope of the appellant’s request in accordance with article 7(5) of the AIE Regulations.
18 March 2026
1. On 11 December 2024, the appellant wrote to the Department of Agriculture, Food and the Marine (the Department) requesting that the following information:
“1) Information which informed the development of the public notification process for forestry licencing included in the Forestry Regulations (SI191 of 2017) (Sections 4, 10 and 11).
2) Information on any studies undertaken by the Forest Service of DAFM in to the adequacy, timeliness and / or effectiveness of the public notification process for forestry licencing included in the Forestry Regulations (as amended) subsequent to the introduction of the Forestry Regulations in May 2017".
2. The Department responded to the appellant on 9 January 2025 stating that it had identified 41 records relating to his request, one of which was part granted, with redactions. The Department provided details of searches undertaken.
3. On 10 January 2025, the appellant sought an internal review of the Department’s decision, as he was not satisfied with the details of searches undertaken.
4. The Department failed to issue its internal review decision within the statutory timeframe prescribed.
5. The appellant brought his first appeal to this Office on 3 March 2025.
6. This Office then wrote to the Department requesting that it provide the appellant with a letter setting out its effective position in relation to the appellant’s internal review request and outlining reasons for this position, as soon as possible.
7. On 12 March 2025, the Department issued its internal review decision to the appellant. It varied its original decision. The Department confirmed that the original decision maker had “erred in their decision to classify the search results as 40 records pertaining to Part 1 and 1 record for Part 2. The Department submitted that “none of the records released relate to Part 2 and as such Part 2 should have been refused in the original decision under article 7(5)”. The Department provided details of searches undertaken.
8. The appellant brought his second appeal to this Office on 26 March 2025.
9. On 26 November 2025, the Department wrote to the appellant acknowledging that it had since“identified one record, which was previously redacted under article 9(2)(d) at original decision stage and article 8(a)(i) at internal review stage, which [it] was now granting in full to [him]. ”
10. 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. 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 but all relevant points have been considered.
11. I note that this AIE request is identical to another AIE request, namelyOCE-147237- L0T8P1/AIE 24-121 . In this case, the Department issued its effective position on 17 April 2024, because it had failed to issue its internal review decision within the one-month statutory timeframe. I remind the Department of its obligation to adhere to statutory timeframes and procedures with respect to ‘action on request’ set out in the AIE Regulations.
12. A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of this decision. This approach has been endorsed by the decision of the High Court in M50 Skip Hire Recycling Limited v the Commissioner for Environmental Information 2020 IEHC 430 .
13. I am satisfied that in light of the inquisitorial and de novo nature of reviews conducted by this Office that I am entitled to have regard to the internal review decision issued by the Department on 12 March 2025.
14. In accordance with article 12(5) of the AIE Regulations, the role of the Commissioner is to review a 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.
15. The scope of this appeal concerns whether the Department was justified in refusing access to environmental information on the grounds that no further information was held by or for the authority concerned in the meaning of article 7(5) of the Regulations.
Article 7(5) of the AIE Regulations
16. 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”.
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. 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.
18. In its submission, the Department provided an overview of the searches undertaken, which includes as follows:
“Internal Review Decision [12 March 2025]
Additional searches conducted at Internal Review stage are outlined below:
• The original AIE request under AIE 24 121 was reviewed along with the searches conducted and records found in relation to that request.
• While reviewing searches conducted under AIE 24 121. It was noted that the SMEs were requested to search their mailboxes, folders and drives for records dated 2016 and 2017 relating to SI 191 and for records relating to discussions on the public notification process and studies undertaken.
• The DM contacted the AP in the Felling Section of Forestry in relation to Part 2 of the request and was advised that there are no post-2017 results for this query.
• Searches of older folders in the Shared Drives were carried out by date and by keywords “public consultation” And “SI 191 2017”.
• No additional records were identified from carrying out the above searches.
Additional Searches – Post Internal Review Decision [26 November 2025]
“Upon review of the previously part-granted record, I decided to fully grant this record to the appellant on 26/11/2025. Item two of the request is now addressed below in additional searches carried out and article 10(3) of the AIE Regulations is no longer applicable as no records are being refused at this stage relating to the request .
In addition to previous searches carried out, I sent additional searching emails to the below SMEs:
• Forestry Inspector Grade 1, Forest Service Inspectorate, DAFM
• Forestry Inspector Grade 2, Forest Service Inspectorate, DAFM
The Forestry Inspector Grade 1 and Senior Archaeologist noted that the only study he was aware of regarding part 2 of the AIE request related to a study commissioned by DAFM from UCD in 2019 titled ‘The Socio-Economic Impact of Forestry in Co. Leitrim’ .
I refused this record under article 7(3)(a)(i) of the AIE Regulations as it is already available in the public domain, notifying the appellant on 20/02/2026 by email. The record is available at the following website: https://www.medpartnership.com/wp-content/uploads/2019/09/TheSocio-Economic-Impact-of-Forestry-in-Co.-Leitrim-September-2019-Final-Report.pdf
The Forestry Inspector Grade 2 conducted searches in his own email inbox and own PC drive for the phrase ‘notification process for forestry licencing’. No records relevant to the request were found. He stated that he was unaware of any studies undertaken by the Forest Service of DAFM in relation to the adequacy, timeliness and/or effectiveness of the public notification process for forestry licencing included in the Forestry Regulations .
To provide more details around searches carried out by SMEs previously for both AIE requests, I outline below the search terms/search parameters used and the outcome of these searches .
• The AP in felling, Alleged Illegal Forestry and Forestry Support Unit stated that while the subject matter of part 1 of the request predates him joining the Department, through searching the Departments shared drive, he was able to provide links to folders where records were stored as being relevant to this part of the request. He was not aware of any studies undertaken by DAFM in relation to part 2 of the request and no such studies were referred to in records identified as relevant in the folders.
• The Grade 1 Forestry Inspector and Senior Archaeologist stated that while he was not involved in the development of the Forestry Regulations 2017 (S.I. 191 of 2017) in their first iteration, he provided names of possible SMEs who would have dealt with the initial drafting. Due to the timescale of the request, two such SMEs are now retired however additional searching emails were sent to two other SMEs as relevant, outlined below:
- Senior Inspector, Forest Sector Development Division, noted that he had no records relevant to the request and that any such records were stored on the shared drive as mentioned above, from which records had been provided to the appellant.
- Grade 1 Forestry Inspector, Forest Service Inspectorate, DAFM, searched his personal drive for records relating to the development of the public consultation process for forestry licencing and found no records relevant to the request.”
19. As part of a focused submission, this Office wrote to the appellant on 11 March 2026 and shared the Department’s submission with him. The appellant was invited to make any submission, which he had regarding same.
20. In his submission to this Office on 16 March 2026, the appellant contends that the Department “has not set out, in any transparent way, the actual search terms used across all relevant custodians, the date ranges applied, the locations searched, the volume of results returned, or the method by which results were filtered for relevance .”
21. In all the circumstances, in particular the Department’s explanation regarding the location of searches undertaken and the personnel who conducted such searches, together with the number of records that have now been identified and released in full to the appellant in relation to its request, I am satisfied that it has taken sufficient steps to determine that it does not hold further 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. I note in his submission to this Office, the appellant has raised a number of queries as to why he feels the searches detailed by the Department have been insufficient. I have considered these queries, but I feel it is important to stress that where a public authority effectively 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.
22. To this end, 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.
23. 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.
24. In all the circumstances, in particular the Department’s explanation regarding the location of searches undertaken and the personnel who conducted such searches, together with the number of records that have now been identified and released in full to the appellant in relation to its request, I am satisfied that it has taken sufficient steps to determine that it does not hold further 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.
25. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby, affirm the decision of the Department.
26. 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.
Gemma Farrell
On behalf of the Commissioner for Environmental Information