Decision
Mr F and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-140759-J1P0V5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-140759-J1P0V5
Published on
Whether the Department was justified in refusing the appellant’s request based on article 7(5) of the AIE Regulations and whether the Department had taken adequate steps in an effort to identify all relevant information
29 February 2024
1. On 6 December 2021, the appellant made an AIE request for environmental information on policy formation related to the maximum allowable size for a clearfell coupe in Standards for Felling and Reforestation (2019).
2. On 14 July 2023, the Department refused the request. On the same day, the appellant requested an internal review. On 18 July 2023, the internal review affirmed the decision of the original decision-maker under article 7(5) of the Regulations, stating that the documentation did not exist or could not be found.
3. On 24 July 2023, the appellant appealed to this Office. He made preliminary submissions with his appeal.
4. An investigator in this Office sought queries from the Department on 25 January 2024. This correspondence was acknowledged by the Department, and by follow-up, a deadline of three weeks from that date was given for a response. However, no response was received.
5. I have completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant. 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’).
6. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
7. 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. The scope of the Commissioner’s remit is limited to this decision-making process.
8. This review concerns whether the Department was justified in refusing access to environmental information on the formation on clearfell size on the basis that no relevant environmental information is held by or for it.
9. Section 49 of the Forestry Act 1946 (“the 1946 Act”) permitted the Minister for Lands to grant a general felling licence. Subject to various orders transferring ministerial functions and altering the title of ministers, this was a function of the Minister for the Marine and Natural Resources at the relevant time in 2000, and of the Minister for Agriculture, Food and the Marine at the relevant time in 2017.
10. In 2000, the Department of Marine and Natural Resources published the Code of Best Forest Practice – Ireland (“the 2000 Code”). Paragraph 12.4 provided:
“In Ireland, a general distinction is made between coupes under 25 ha (which can be recommended for a general felling licence) and coupes over 25 ha (which can be recommended for a limited felling licence). When felling coupes are extended, consideration should be given to scheduling clearfells so that adjoining reforestation areas are well established. Other issues to be considered are wind risk on adjoining stands and potential edge effects, particularly with Norway spruce.
Large felling coupes over 25 ha may be acceptable on flat terrain or valley bottoms where visual impact is minimised. Felling in very sensitive landscape areas should be limited to 5-15 ha. While broad guidelines on coupe size are to be considered, size limits should not be absolute but relate to the size of the forest or water catchment unit. In the latter case, the coupe size will influence the likelihood of nutrient pollution. This would be an important issue if a catchment contributes to a drinking water supply.
Acceptable coupe size will be reviewed periodically by the Forest Service.”
11. Section 17 of the Forestry Act 2014 (“the 2014 Act”) provides a new legal basis for the grant of a felling by the Minister for Agriculture, Food and the Marine. The 2014 Act came into operation on 24 May 2017 came under the Forestry Act 2014 (Commencement) Order 2017 (S.I. No. 189) (with the repeal of the 1946 Act under s. 31). The Forestry Regulations 2017 (S.I. No. 191) came into operation by their own terms on the same date.
12. In May 2017, the Department published the Felling and Reforestation Policy (“the 2017 Policy”). Paragraph 2.6 of this report, titled “Felling coupe size”, quotes paragraph 12.4 of the 2000 Code as being the current forest policy.
13. In October 2019, the Department published the Standards for Felling and Reforestation (“the 2019 Standards”). Item 3.2 of this Report provides:
“The maximum allowable size for any single clearfell coupe is 25 ha.
No other coupe within 120 m can be clearfelled until the original coupe has greened up, and no less than 12 months after the completion of felling.”
14. In the AIE Request, the appellant requested the below environmental information with reference to item 3.2 of the Interim Standard for Felling & Reforestation:
“1. All information which informed the figure of 25 ha as the maximum allowable size for any single clearfell coupe.
2. All information which informed the requirement that ‘No other coupe within 120 m can be clearfelled until the original coupe has greened up, and no less than 12 months after the completion of felling’
3. All information related to any review (formal or informal) of the acceptable coupe size for clear-felling since the introduction of the Code of Best Forest Practice (2000).
4. The date on which the Code of Best Practice was formally withdrawn or became defunct.”
15. The original decision refused the request, stating:
“Following examination of material held by the Department I have been unable to locate any records relevant to your request. I therefore refuse your request.
The following search steps were taken:
• circulation an e-mail to all staff, which gave the definition of the records sought and stressed the need for all staff to carefully consider if they were aware of, or could find, any such records.
I have also been unable to determine whether any other public authority might possess the records that you have requested.”
16. The internal review affirmed the original decision, stating:
“The following search steps were taken:
• Circulation of e-mail to relevant staff, which gave the definition of the records sought and stressed the need for all staff to carefully consider if they were aware of, or could find, any such records.
• A search of the electronic databases and records held both on mainframe computers and individual staff computers.
• A search of the electronic folder where the original AIE request and subsequent search emails.”
17. Although the temporal range of the appellant’s request was broad, extending from the introduction of the 2000 Code, the policy change he was seeking environmental information on was specific and arose from recent legislative developments. At the coming into effect of the 2014 Act, the 2017 Policy reaffirmed what had been in place since the 2000 Code, with a distinction between general felling licences and limited felling licences; the 2019 Standards altered this, with a single licence system available.
18. The Department is subject to a duty to provide reasons for its decisions. This arises, not only by virtue of articles 7(4) and 11(4) of the AIE Regulations, but also as a core principle of administrative law and a fundamental element of constitutional justice. The courts and 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 (see, for example, Balz v An Bórd Pleanála [2019] IESC 90). This duty arises so that a requester can take a view as to whether they consider the position of the public authority to be justified, or whether they wish to exercise the entitlement to have that position reviewed. In cases where refusal is based on article 7(5) of the Regulations, the reasons for the conclusion that no relevant information is held by or for the public authority should be provided to the appellant. 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.
19. The searches that would constitute an adequate, reasonable and appropriate response to fulfil an AIE request are specific to each request. The investigator of this Office made enquiries of the Department, including:
- Whether all relevant individuals within the Department, including but not limited to the authors of the 2017 Policy and the 2019 Policy and individuals responsible for policy changes arising from implementation of the Forestry Act 2014, were consulted and their records searched?
- If so, how the list of relevant individuals was compiled, the responses received, the searches carried out, and the outcome of those searches.
- Details of the exact locations/areas which were searched for the information sought in this case, including descriptions of any searches which were conducted in each instance, and the search methods used
- Whether a list of other public authorities or stakeholders who had input into the drafting of the 2019 Standards 2019 or who provided comments on the drafting of this document was compiled?
- Whether correspondence between these stakeholders and the relevant individuals in the Department was checked for the information requested? In particular, were comments from these stakeholders on the 2000 Code or the 2019 Standards checked.
- How a determination was made that there were no other public authorities which may have the information sought by the requester?
- Whether draft versions of the 2019 Standards were available and consulted, including comments on draft versions of this document?
- Details of guidelines, practices, procedures, and arrangements in relation to the storage, filing, archiving, retention, and destruction of the type of information sought in this request during the drafting of the 2019 Standards and at the time of the AIE request.
20. This is a non-exhaustive list of the types of explanation relevant to this query which the Department ought to and could have provided to satisfy the appellant and this Office to demonstrate that it carried out reasonable and appropriate searches. The investigator also made general queries on potential misfiling or the destruction of information, and whether it was the position of the Department that the environmental information sought did not exist. As indicated above, no response was received to this request for further information.
21. From a review of the Department’s decision-making records on this file, I am of the view that the Department has not demonstrated that it has carried out reasonable and appropriate searches to identify and retrieve environmental information relevant to the request. In contrast to the specific queries listed above, the explanation given by the Department for refusing the appellant’s request was general, without any explanation of the process used to conduct a search relevant to the AIE request. The Department did not provide any detail on which staff were considered to be “relevant staff”, what particular databases were searched, or what keywords were used.
22. In light of the above, I annul the internal review decision of the Department. In my view, the legal effect of this decision to annul the internal review decision made on 18 July 2023 is that that the Department must issue a new internal review decision to the appellant. Article 12(3) of the AIE Regulations allows for a decision made by a public authority under article 11 of the AIE Regulations to be appealed to my Office. Article 12(5) of the AIE Regulations provides that I may review the decision of the public body and affirm, vary or annul the decision concerned, specifying the reasons for my decision. I therefore consider that where I annul a decision of a public authority, this only has the effect of annulling the internal review decision, not the original decision.
23. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision, I hereby annul the internal review decision of the Department in this case. A new internal review process should be carried out under article 11 of the AIE Regulations.
24. 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