Decision
Mr. X & The Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-149437-D9G8Q4
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-149437-D9G8Q4
Published on
Whether the Department has established that it did not hold any further relevant information coming within the scope of the appellant’s request, in accordance with article 7 (5) of the AIE Regulations.
10 April 2026
1. On the 10 November 2023, the appellant wrote to the Department, requesting information as follows;
I wish to request under the Access to Information on the Environment Regulations, in electronic format;
All post-licence issue information related to felling licence LM09-FL0042;
Including
1) Date of site inspections
2) Inspections Reports / Statements of Facts
3) Photographs
4) Monitoring records
5) Internal and external correspondence
2. The Department responded to the appellant on 22 November 2023 and provided him with a schedule of records and stated that forty-one relevant records had been identified and the appellant would be granted access to these records.
3. On 22 November 2023, the appellant queried “why multiple email correspondences of which I am directly aware have not been identified ” and he stated, “this raises the possibility that other correspondence has also been missed and not included in the information provided ”. The appellant also asked the Department to “indicate the reasonable steps that you have taken to identify the information requested .”
4. Having received no response from the Department, the appellant sought an internal review of the decision on 04 December 2023.
5. Following receipt of correspondence from this Office, the Department issued its effective position on 02 May 2024 where it varied its original decision and provided an amended schedule of records to the appellant. The Department outlined that an additional record had been found following a search of the Felling Sections mailbox, together with correspondence related to this request. The Department also referred to “additional enquiries” made with named Inspectors and that these enquiries returned no additional records relevant to the request. The Department also stated that enquiries were made with the felling section, and again, no additional relevant records were returned. The Department further outlined that a search of its edocs system and shared area was also conducted and no records relevant to this request were returned.
6. The appellant submitted an appeal to this Office on 29 May 2024 on the basis he remained dissatisfied with the Departments response, and it had failed to demonstrate that all reasonable steps had been taken to identify all of the requested information. He further stated that no details had been provided as to what searches were carried out before coming to the conclusion that they hold no records.
7. 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’).
8. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
9. In accordance with article 12 (5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it.
10. The Department’s position is that having carried out searches and identifying and granting release of forty-two records, that no further records are held by it or for it, relevant to the appellant’s request.
11. 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 held by it in relation to the appellant’s request of 10 November 2023.
12. 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.
13. In this case, the appellant contends that while forty-two records have been identified, the Department has failed to set out/ conduct adequate searches in respect of his request. 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.”
14. 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. What will be considered reasonable will vary from case to case.
15. 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.
16. 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.
17. The appellant’s position is that much of the information released by the Department in relation to this request relates to information generated “pre-licence issue” and is therefore out of scope of this request – as his request relates to “post-licence issues.” He contends the records identified only relate to item 5 of his request and there is no explanation as to why no information has been located in relation to the other parts of his request. He also says no detail had been provided as to precisely what searches were made by Inspectors within the Felling section of the Department or what databases were searched or what search terms were used. He adds that adequate searches were not carried out, with the possibility of relevant records being missed.
18. In particular, the appellant was concerned that no information had been provided in respect of the date/s of site inspection and the information which had been provided and that there was “hints at other correspondence information which should be on the record.” The appellant also referred to a condition in the original licences which was subsequently “dropped” from the re-issued licence, however, he stated he would have still expected that information related to this should have been provided to the Department by Coillte in the first instance and that no such information appears to have been provided. He also stated that it is reasonable to think that there should be some information on the file as to why that condition was omitted from the ‘re-issued’ license.
19. In submissions to this Office the Department advised the following:
• In respect of the original decision, a search had been conducted of the shared folder that contains all licences applications received from Coillte and associated documents, using the felling licence reference number LM09-FL0042. Records were found and made available to the appellant. It explained that Reference number LM09-FL0042 was used in searches as the Department’s naming convention includes the felling licence.
• It explained the reason the shared folder was the most appropriate place for searches to be carried out – it is where all documents associated with Coillte Tree Felling applications are held, and include records associated with licence application as well as post licence records for Coillte licences.
• In relation to the Internal review/Effective position dated 02 May 2025, eleven additional records (including correspondence related to the AIE request the subject of this appeal) were returned following additional/extended searches, and the records were found in the Felling Section mailbox. These additional searches included a search of the Felling Section mailbox and additional enquiries made with two named Felling Inspectors which returned no additional records relevant to the request. Enquiries were also made with colleagues in the Felling section, and no additional records were returned.
• A search of its e Doc system and shared area was conducted and no records relevant to the request was returned.
• Its Data Retention Policy that emails are automatically deleted from Department mailboxes after two years.
• In preparation for its submissions, the Department advised that the decision maker who had been on leave at the time of the original request, examined their own records and found one document in their inbox which was provided to the appellant on 17 July 2025.
• All measures were taken to ensure that the Department carried out adequate and reasonable steps in respect of searches carried out regarding this request.
20. The Department also provided the following context as to the felling licence in question:
“The Tree Felling Licence LM09-FL0042 was issued to Coillte for 4.22 hectares at Pottore, Co. Leitrim on 05/02/2020. This licence was exercisable until 31/12/2022. An appeal on this decision was submitted to the Forestry Appeals Committee (FAC) on 04/03/2020. FAC set aside the decision and remitted the licence back to the Department for a new decision on 19/11/2020. A new licence issued on 18/05/2021, which was exercisable until 31/12/2023”
21. I have carefully examined the steps that the Department says it took to ensure all information relevant to the request had been identified. This includes the release of forty-one records when the AIE request was first received as outlined in point 2 above and further details in the effective position point 5 above and submissions to this Office, outlined in points (s) (19).
22. I note that two named Felling inspectors together with a Felling section HEO conducted searches in respect of this request. I note the use of the license reference number in the searches conducted and the explanation provided as to why this was an appropriate search term, which I find to be reasonable. I understand the Department extended its search at the effective position stage of this review. I further note the location of the searches included the Felling section inbox, edocs and shared folder and the explanation provided as to why these locations were searched which I also find to be satisfactory.
23. I have considered the appellant’s criticism of the Department’s subsequent discovery of the final record produced in this matter. The appellant queried how the final record produced had been missed in the first instances given that it contained the reference number in the subject bar, arguing it was the most relevant record to his request and was not identified until 18 months after his request was made and after an appeal to the OCEI. I accept the explanation provided by the Department, that the named HEO of the Felling section had been on leave at the time the searches relevant to this appeal were conducted and it was located in her specific inbox after the initial searches were conducted.
24. I am satisfied that the searches performed by the subject matter experts are sufficient in the circumstances of this appeal and to set out the full itemisation of results yielded goes beyond the scope of what is required by article 7 (5). I am satisfied based on the descriptions of searches, search terms utilised and SMEs consulted, (Felling) that an adequate search was performed and the relevant unit consulted.
25. I further note the appellant’s concern that certain records granted to him as part of the request hint at further or follow up correspondence and the Department’s reply to same, namely that any such response is outside the scope of the appellant’s request. I further note the appellant has pointed out that a number of the records provided to him were already outside of the scope of the appeal. The Department has addressed this and acknowledged that the decision maker at internal review did provide records dated after 10 November 2023 (when the request was made) I acknowledge the frustration caused to the appellant in this regard and while I accept the Department’s position, I would encourage the Department to take a more consistent approach where producing certain records beyond the scope of the request yet not providing others without explanation. I also note that 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.
26. The appellant specifically noted that record correspondence sent by him to the Department dated 16 October 2023 should have generated a response. I note the AIE Regulations are motive blind, however the appellant has helpfully explained to this Office that a key element of his request is “to find out what follow up action resulted from my reporting of the works on this site ”.
27. The appellant has argued that he failed to see how the OCEI can issue a determinative decision on this appeal in circumstances “where relevant environmental information could have been deleted by the public authority ” and it appears clear “that no Site Inspection was carried out between my reporting and the date of my AIE request ”. The appellant states that upholding the Department’s decision on this request would confirm their failure to act promptly to investigate a potential breach of licence conditions. It would also confirm internal communication issues regarding incident reporting and referral.
28. I do understand the appellant’s frustration in his belief that certain information should exist in relation to his request. However, this Office has no role in commenting on or making findings regarding failures of public authorities to carry out investigations into breaches of licence conditions. The role of this Office in this case is to consider whether adequate searches were carried out, and in general it is not for this Office to draw conclusions from the absence or otherwise of information held by the public authority. The scope of this decision and the searches involve environmental information held by the Department related to the appellant’s request, at the date the request for information was received by it – in this case 10 November 2023.
29. 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 the 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 setting out 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.
30. 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.
31. 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.
32. In light of the above, it is evident that the Department has carried out adequate searches in processing the appellant s request, which included consultation with relevant subject matter experts, the search of the felling section inbox, edocs and shared folder. I am satisfied that the searches carried out by the Department are reasonable within the meaning of the AIE Regulations.
33. It is notable in this case that while I am satisfied with the information provided by the Department to this Office following queries raised by the Investigator assigned to this appeal, the original and effective position/internal review decision provided to the appellant, lacked sufficient detail to address the issues raised and I remind the Department of its duty to give reasons, most crucially at internal review stage, when issuing decisions under the AIE regime. Had greater detail been provided to the appellant at the internal review decision stage, it may well have avoided the appeal to this Office or indeed limited the scope of the appeal.
34. Considering the circumstances of this appeal together with the many records that were made available to the appellant, I am persuaded based on the information before me that the Department had 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.
35. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm the Department’s decision pursuant to article 7 (5) of the AIE Regulations.
36. 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