Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-149637-D5W5N3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-149637-D5W5N3
Published on
Whether the information requested is held by the Department in accordance with article 7(1) of the AIE Regulations and whether the Department conducted reasonable and adequate searches such as to identify the information requested, in accordance with the implicit requirement of article 7(5), prior to refusing the request on the basis that it had released all relevant information
18 December 2024
I. On 5 April 2024, the appellant submitted a request to the Department of Agriculture, Food and the Marine (the Department) seeking access to the following:
“In response to a previous AIE request (24 160) for ‘the date on which the Code of Best Practice was formally withdrawn or became defunct’, I received the following response:
RESPONSE: The Code of Best Practice: Ireland has not been formerly withdrawn. However, multiple measures described therein are superseded by the current requirements, as set out (e.g.) in the Standards for Felling & Reforestation document and all subsequent Circulars, and in the key documents regarding afforestation, i.e. the Land Types for Afforestation and the Environmental Requirements for Afforestation documents, and all subsequent Circulars. Therefore, the Code is largely defunct at this stage.
I wish to request:
I. information on all of the measures within the Code of Best Practice which have been superseded, to include;
A) the relevant measure
B) the information which has superseded it
C) the date that the change occurred
II. a consolidated version of the Code of Best Forest Practice which details the remaining measures which have not been superseded.”
2. On 3 May 2024, the Department issued its decision and it refused the appellant’s request under article 7(5) of the AIE Regulations, on the basis that “no records existed despite a detailed search being carried out by its officials”. It provided details of the following searches, which had been undertaken:
I. A JIRA cannot be raised for the information specified in your request.
II. Information of this type would not be contained within iforis.
III. APEX cannot run a report for the type of information contained in your request.
IV. A digital search of the Departmental database edocs using key words ‘code of practice’ and ‘code of best practice’, for records related to your request showed a Nil Response.
V. A digital search of the Departmental database ShareDrive using the keywords outlined above, for specific records relating to your request resulted in a Nil Response.
VI. I contact Robert Windle, Forest Service Inspector who replied with a Nil Response to this request.
VII. I contacted Linda Morris Assistant Principal, Forest Service who replied with a Nil Response to this request.
VIII. I contacted Janet Farrell, Higher Executive Officer, Forest Service who replied with a Nil Response to this request.
IX. I contacted Seamus Dunne, Head of Forestry Inspectorate no records relevant to this request were returned.
X. I contacted Kevin Collins, Forest Service Inspector no records relevant to this request were returned.
XI. The Departments email retention policy is two years.”
3. On the same day, the appellant requested an internal review of this decision, as he contended that:
“There is no explanation as to why particular personnel were contacted and there are no details of searches that they were asked to undertake and actually undertook before returning their Nil responses.”
4. On 31 May 2024, the Department varied the decision of the original decision maker on the basis that it had identified more search information, which includes as follows:
| AIE request number: | AIE24 256 | ||
| Search Criteria Used: | |||
| (Name/CN/TFL/Application No. etc.) | |||
| Search Checklist | Checked Y/N | Documents Found Y/N | Date |
| Check of Paper Records in the area/Unit/Division | Y | Y | 16/04/2024 |
| Checked Electronic iFORIS/APEX/shared Directories/eDocs | Y | Y | 16/04/2024 |
| Checked Email accounts of relevant staff | Y | Y | 16/04/2024 |
Additionally, the Department confirmed how this renewed search process was undertaken by having a consultation with individuals, who had knowledge of the Code of Best Forest Practice and also by liaising with a DAFM Forest Inspector, who is a subject matter expert in this area.
5. The appellant brought an appeal to this Office on 10 June 2024, as he contended that pursuant to article 7(5) of the AIE Regulations, the Department had failed to demonstrate that all reasonable steps have been taken to identify the requested information. He stated that the Department must “hold information on how the Code has been modified and at the very least has some form of consolidated document that can be referred to as a reference in terms of foresters and Department Inspectors knowing precisely what conditions apply to licences.” Additionally, he highlighted how the Department had failed to provide details of the searches carried out by the DAFM Forestry Inspector, the subject matter in this area.
6. 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:
• 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’).
7. 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.
8. Pursuant to article 7(5) of the AIE Regulations, the scope of this review is to investigate whether the Department has taken all reasonable steps to identify the requested information
9. In this case, the appellant contends that the Department should hold further information relevant to his request. 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”.
10. 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.
11. As part of a focused request for submissions issued by this Office, the Department was requested to outline more detail of their search process. The Department was asked to provide an outline of what selection process of personnel they had applied and what search process of physical and/or electronic resources they had undertaken.
12. In response, the Department confirmed how particular members of DAFM personnel were contacted, as it determined that given their level of experience of Forestry Policy and Forestry Operations, that they would be best placed to identify records in relation to this request. Subsequently, it was established that only one individual of DAFM personnel had been directly involved in the editing and coordinating of the Code of Best Forest Practice when it was being published 24 years ago and therefore, regarded to be a subject expert in the area. This individual advised the Department as follows:
“Unfortunately it wasn’t the case that the Code was superseded section by section. In relation to afforestation, the superseding process mainly took place through the revision of the suite of environmental guidelines (for water, biodiversity, landscape, archaeology and harvesting) originally published alongside the Code. In effect, the 1st four of the original guidelines contained measures relating to afforestation. We collated these measures into a single document, rearranged, updated and added to them, resulting in the Env. Reqs. for Affor. (Dec16), which itself was recently updated under the new Programme.)”
In this respect, the Department highlighted that “whilst the Code of Best Forest Practice, which was published in 2000, has in parts, been superseded by more recent policies and circulars, this has been an organic and evolving process and not one that has given rise to the creation of records.”
13. In relation to the selection process of a particular DAFM Forest Inspector and subject matter expert in this area, the Department confirmed that this individual is highly reputable as DAFM’s lead Forestry Inspector in the development of the new Forestry Programme. As such, the Department highlighted how this particular DAFM Forest Inspector would be most familiar with the Code of Best Forest Practice and therefore, he was in a position to advise them that a consolidated version of the Code does not exist.
14. With regards to the request for details of the searches carried out, the Department confirmed that it included electronic searches of relevant databases and use of the search term “Code of Best Forest Practice”. Additionally, the Department provided details of the enquiries, which were made with a number of different sections and thereby, ensured that all relevant areas were searched for information relevant to the appellant’s request.
15. In response to provide clarification for the discrepancies between their original decision and internal review decision, the Department confirmed as follows:
“In relation to the Internal Review letter issued, the original AIE Decision Maker was correct when she stated that information relating to this request would not be found in iFORIS, the Department’s forestry licence application processing system, or APEX, which is a system that runs reports based on data from iFORIS.
When [the DAFM Forestry Inspector] stated that he checked ‘Yes’ for Electronic iFORIS/APEX/shared Directories/eDOCs, in this case, on the standard Nil Response Form that was in use at that time, that referred to a search of shared directories and eDOCs, as iFORIS and APEX are not relevant to this request. [The DAFM Forestry Inspector] later confirmed that he had mistakenly selected ‘Y’ in relation to the above, when he should have selected ‘N’, as he had no records. This was clarified at the time with the appellant.”
16. In light of the above, it is evident that the Department has carried out detailed searches in processing the appellant’s request, which included electronic searches of relevant databases. It is noted how the Department also set out details of the enquiries made with a number of different sections, as well as consulting with subject matter experts to ensure that all areas were searched for information, which were relevant to the appellant’s request.
17. In all the circumstances, I am satisfied that the Department has sufficient steps to determine that it does not hold 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.
18. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm the decision of the Department.
19. 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