Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-143569-Q2L1H6
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-143569-Q2L1H6
Published on
Whether the Department was justified in refusing access to information requested under article 7(5) of the AIE Regulation.
04 February 2026
1. On 13 September 2023, the appellant requested the following information from the Department;
“All information relating TFL00418519 which does not appear on the FLV; including any investigations regarding the failure to re-stock after felling. All correspondence (all media) which does not appear on the FLV relating to CN89682”
2. The Department issued its Original Decision on 19 September 2023, granting the appellant 20 records in full and 8 further records which were part granted via redactions under article 8(a)(i) of the AIE Regulations.
3. On 20 September 2023, the appellant requested an internal review of the Department’s decision with emphasis on information relating to any investigations which may have arisen from the alleged failure to re-stock.
4. The Department issued its Internal Review Decision on 16 October 2023, varying its previous decision and releasing one further record to the appellant.
5. The appellant appealed to this Office on 3 November 2023.
6. I am directed by the Commissioner to undertake 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’).
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. 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.
9. In its submissions to this office, the Department noted that there had been a typographical error in its Original Decision and that a total of 29 records had been released initially and not 28, with a subsequent record provided with the Internal Review Decision. As part of the Department’s review of the appeal it identified one further record relevant to the request which was provided to the appellant. Therefore, a total of 31 records were released to the appellant, some of which were partially redacted under article 8(a)(i) of the AIE regulations.
10. The appellant contends that further information in relation to his request should be held by the Department. Pursuant to article 7(5) of the AIE Regulations, the scope of this review is to investigate whether the Department has conducted adequate searches in order to locate all records which may come within scope of the request.
11. 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.
12. 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 .”
13. 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 circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied.
14. 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.
15. In submission to this Office the Department set out the details of its searches in relation to the appellant’s request. In particular, the decision maker carried out a search of iFORIS using the licence application reference numbers. Additionally, searching emails were sent to the HEO of Felling Section and the HEO of Alleged Illegal Felling Section. Searches were carried out by the HEO of the Felling Section of their personal inbox, the Felling inbox, eDOCs and Felling folder on the S drive using the licence reference number.
16. I note, a substantial amount of information has been identified by the Department as being relevant to the request and has been released or part granted to the appellant. However, the appellant asserts that further information in relation to “investigations regarding the failure to re-stock after felling” should exist.
17. In his submission to the OCEI, the appellant contends that whilst the Department provided records in relation to application information for TFL00418519 and CN89682 it did not provide any information in relation to any investigations which he believes should have taken place regarding the failure to re-stock the site in question. In particular, the appellant has noted from the information provided relating to the refusal of the afforestation licence under CN8968, that the Department’s Regional Forestry Inspector had mentioned a recommendation made by a Regional Forestry Inspector but noted there was no recommendation included in the information released to him.
18. The appellant outlined that TFL00418519 refers to a felling licence that included a condition that the land be re-stocked. The appellant is of the opinion that the lands in question were not re-stocked and that a subsequent application for an afforestation licence (CN89682) was submitted and refused as the Department were under the impression the land had been re-stocked under the condition in the felling licence TFL00418519. The appellant contends that the failure to re-stock under TFL00418519 was a breach of licence conditions which should have led to, in his estimation, the Department acting in its enforcement capacity which in turn would have generated further information as a result of any investigations.
19. The Department has addressed the appellant’s contention that further information in relation to investigations should exist or be held by it.
20. In its submissions, the Department have advised that the recommendation set out in paragraph 17 above may have been made by the Inspector to the HEO in the approvals section. This HEO has since left the Department and it is unclear if this recommendation was made verbally or by email. The Department does not have access to HEO’s email account as it was closed upon their departure.
21. The Department noted that a recommendation like this may have been made verbally in a meeting regarding refusals or by telephone. In an effort to provide context, the Department advised that all refusals by a District Inspector on iForis would be sent to the Regional Forestry Inspector. The Regional Forestry Inspector confirmed to the AIE Unit in the Department that a search of his emails and his personal folders returned no results in relation to either TFL00418519 or CN89682.
22. In an effort to locate the information, the Department contacted the current HEO in the approvals section and the staff member who refused the licence and searches of the approvals mailbox, the staff member’s mailbox and personal folders were made with no information in relation to investigations linked to TFL00418519 or CN89682 identified. Furthermore, there was no information identified in relation to the Regional Forestry Inspector’s recommendation for refusal. The Department stated that it also searched a paper file in relation to the refusal and no such recommendation could be found. The Department indicated that this would point towards the recommendation having been made verbally.
23. The Department did note that the TFL00418519 was issued in 2021 for a period of 6 years with thinning to take place in 2021 and clear felling by 2026. It is the Department’s position that no investigation into restocking took place as the licence is not due to expire until 2026. The Department have explained that due to the licence remaining active it is unlikely that any investigation would take place prior to the expiry of the licence as the site was only due to be clear felled by 2026.
24. In these specific circumstances where the Department has already released a substantial amount of information, and has answered in my opinion, sufficiently, queries regarding the existence of information related to an investigation, I am satisfied that adequate steps have been taken to identify all information relevant to the request. I say this with particular regard to the volume of information that has been provided to the appellant, including additional records provided during the course of the appeal.
25. While it is the appellant’s view that further information should exist, it is outside the remit of this Office to adjudicate on how public authorities carry out their functions generally, including with respect to their environmental information management practices. I have no role in assessing how public authorities collect, maintain and disseminate environmental information. My role concerns reviewing appeals of requests for access to environmental information within the scope of the request, which is held by or for the relevant public authority and no more than that.
26. In light of the above, I affirm the Department’s decision that it has taken reasonable and adequate steps to identify all information held by or for it within the scope of the appellant’s request, pursuant to article 7(5) of the AIE Regulations.
27. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department’s decision. The Department has sufficiently demonstrated that it does not hold any further information in relation to the appellant’s specific request due to the passage of time, change of staff and servers and the fact that no investigation had taken place prior to the request.
28. 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
Senior Investigator on behalf of the Commissioner for Environmental Information