Decision
Ms X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-152010-V2R2C0
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-152010-V2R2C0
Published on
Whether the Department had provided the appellant with all relevant information in accordance with article 7(1) of the AIE Regulations and whether the Department had established that it did not hold any further information in accordance with article 7(5) of the AIE Regulations
15 November 2024
1. On 30 May 2024, the appellant submitted a request to the Department of Agriculture, Food and the Marine (DAFM) seeking access to the following:
I. [T]he dates of all meetings (including both face-to-face and virtual meetings) held in May 2024 between DAFM and Coillte. Information to include, inter alia, the dates of all:
a) Routine weekly meetings held between DAFM with Coillte
b) Meetings attended by the Minister of State (DAFM) with Coillte
II. Please provide information on all attendees (both DAFM and Coillte attendees) to all May 2024 meetings between DAFM and Coillte.
III. Please provide, by email, a copy of the agendas and minutes (both handwritten and otherwise) for all May 2024 meetings covered by this AIE request.
IV. Please provide by email, all information received by DAFM from Coillte in relation to all May 2024 meetings covered by this AIE request, whether received by DAFM prior to the scheduled meeting with Coillte or received by DAFM during the scheduled meeting with Coillte.
V. Please provide by email, all information received by Coillte from DAFM in relation to all May 2024 meetings covered by this AIE request, whether received by Coillte prior to the scheduled meeting with DAFM or received by Coilte during the scheduled meeting with DAFM.
VI. Please provide copies of all informal notes / informal records etc, (handwritten information to be included) in relation to all May 2024 meetings covered by this AIE request, whether written/created during or after either the meetings and where the informal records etc relate to all, or any part, of the topics covered in any May 2024 meetings covered by this AIE request.
VII. Please provide copies of all post meeting reports /updates etc. circulated within DAFM, from DAFM to Coillte and from Coillte to DAFM (e.g. emails, telephone notes/call, WhatsApp messages etc) regarding any topics covered at any May 2024 meetings covered by this AIE request.
2. On 20 June 2024, the Department responded informing the appellant that it was granting the request. It confirmed that a search had been conducted and that “Mr W. McCann, DAFM Forest Inspector, who is a subject matter expert in the area of the request had returned an email and attachment, which it granted to the appellant”. No further records were provided to the appellant.
3. On 20 June 2024, the appellant requested an internal review of the Department’s decision.
4. On 13 August 2024, the Department issued its internal review decision. In doing so, it affirmed its original decision and stated that:
“W McCann, DAFM Forestry Inspector and subject matter expert was consulted. His response to the searches were provided to you at AIE stage. I am satisfied that the Department does not hold any further records in relation to your AIE request.”
5. On 12 September 2024, the appellant submitted an appeal to this Office.
6. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the Department and the appellant as outlined above and to correspondence between my Office and both the Department and the appellant on the matter. 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. This review concerns whether the Department was justified in refusing access to environmental information relating to meetings held in May 2024 between DAFM and Coillte, which falls under the scope of the appellant’s request on the basis that no further relevant environmental information is held by or for it.
9. In this case, the appellant contends that the Department should hold further information relevant to her 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.
11. 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.
12. The appellant has highlighted how the Department, having consulted with Mr W McCann, DAFM Forestry Inspector only furnished her with an email and attachment containing documentation relating to three meetings held between them and Coillte on Monday 6th May 2024; Monday 20th May and Monday 27th May.
The appellant states that this documentation lacks substantive detail and it only confirms:
“[T]he name of the attendees to these three meetings, and an email trail covering the period 15/05/24 to 22/05/24 (both dates inclusive) re-arranging a meeting originally scheduled for Thursday 23/05/24 to Tuesday 28/05/24, but refusing all other requested information”
13. In this respect, the appellant has pointed-out a number of discrepancies with said documentation furnished to her by the Department, which include:
I. It is not clear whether there was a relevant meeting on Tuesday 28 May or whether further emails have been omitted by DAFM again re-scheduling this meeting from Tuesday 28 May to another date (beyond 31 May 2024).
II. Monday 6 May 2024 was a Bank Holiday in Ireland. It is unlikely that DAFM had any meeting on this Bank Holiday Monday
14. The appellant also states that she received information from Coillte in a different AIE request that she contends that she should also have received under this AIE request.
15. It is widely accepted that the duty to give reasons arises not only by virtue of the AIE Regulations and Directive but that it is recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as 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. 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.
16. Having reviewed the decision-making records on file, I consider that the search process undertaken by the Department to identify and locate relevant records appears to have been somewhat limited. In fact, the only piece of information furnished by the Department to the appellant, is that it consulted with Mr W McCann, DAFM Forestry Inspector, who granted a copy of an email and attachment to the appellant. The original and internal review decisions describe Mr. McCann as the “subject matter expert” in the area of the request. However, this does not sufficiently explain why it is reasonable to assume that Mr. McCann could be the only person in the Department who may hold information relevant to this request. Further, the decisions do not set out any detail on the steps taken by Mr McCann in order to search for information relevant to the appellant’s request.
17. I note that the Department did not respond to this Office’s request for submissions relating to this appeal and/or seek to provide any additional detail or reasons beyond what was furnished initially.
18. Having considered all of the above, I find that the Department has failed to outline clearly what steps it undertook to search, identify and locate records relevant to the appellant’s request. Due to this, the Department has not established that it has provided all information sought to the appellant as required under the AIE Regulations. I will annul the decision of the Department. The Department should provide the appellant with a new internal review decision and in this should detail the steps it took to identify information relevant to the appellant’s request.
19. I also note, however, that the appellant did not raise any of the points made in her appeal with the Department at internal review stage. It is important that requestors engage with the internal review process in a meaningful way, particularly where they may hold other information that has a relevance on the request, or where they may consider there to be a discrepancy in information provided to them at original decision stage. Where requestors do not provide this type of detail in their internal review requests, this may result in appeals to this Office that could otherwise be avoided. I would ask the appellant to consider this when submitting any future requests under the AIE Regulations.
20. In conclusion, having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Department’s decision under article 7(5) in this case. A new internal review process under article 11 of the AIE Regulations should be undertaken.
21. 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