Decision
Ms W and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-135329-K9G7M1
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-135329-K9G7M1
Published on
Whether the Department is justified in refusing access to environmental information on the basis that no such environmental information is held by or for it
1. On 16 November 2022, the appellant sent the following request for information to the Department in relation to a refusal letter issued for the “application of afforestation pre-approval application” for file reference CN66724:
“I refer to the refusal letter dated 5 February 2014 in relation to CN66534 (copy attached). The refusal letter states that “the forest service has a long standing agreement with local community groups to refuse any new afforestation in Rockchapel”. Please provide by email:
1.a copy of the agreement that applied in February 2014 between [the Forest Service] and local community groups for [the Forest Service] to refuse any afforestation in Rockchapel.
2.a copy of all subsequent agreements (after Feb 2014) between [the Forest Service] and local community groups for [the Forest Service] to refuse any new afforestation in Rockchapel, including the agreement currently in place as at November 2022.”
2. The Department issued its original decision on 16 December 2022. It refused the appellant’s request on the basis that it had been unable to locate any relevant records. It outlined the steps it took to ascertain whether it held the information requested. These included:
3. On the same day the appellant responded to the Department requesting an internal review. In it she sought to be provided with the following information as part of the internal review decision:
“1. The timeframes relating to all steps taken by the internal reviewer to locate the requested information.
2. Any additional steps taken by the internal reviewer that were not taken by the original decision maker, to locate the requested information.”
4. On 13 January 2023, the Department issued its internal review affirming its original decision. It said:
“I affirm the decision of the original decision maker to refuse access to the information requested under Article 7 (5) of the AIE Regulations as the records you requested either do not exist or cannot be found after what I consider to be all reasonable steps being taken to locate them. A search of the relevant database(s) has returned no records relevant to those requested by you. Enquiries made with the relevant personnel has returned no records relevant to your request.”
5. The appellant appealed to this Office on 9 February 2023.
6. I am directed by the Commissioner for Environmental Information 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:
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, the role of this Office 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, this Office will require the public authority to make available environmental information to the appellant.
9. I note that in its submission to this Office the Department requested advice in relation to residency requirements for appellants making an application under the AIE Directive.
10. I also note that in her submission to this Office, the appellant asked that this Office “establish whether the requested information was, or is being, withheld by [the Department] as a consequence of pressure being brought to bear on the AIE Unit of [the Department].”
11. I consider it important to set out at this juncture, the jurisdiction conferred on this Office by article 12 of the AIE Regulations. Article 12(5) of the AIE Regulations provides that on receipt of an appeal, “the Commissioner shall –
a. review the decision of the public authority;
b. affirm, vary or annul the decision concerned, specifying the reasons for his or her decision, and
c. where appropriate, require the public authority to make available environmental information to the appellant, in accordance with these Regulations”.
12. The “decision of the public authority” referred to in article 12(5) is, according to article 12(3), the decision made at internal review stage (if such a decision has been made). It is a decision on the extent of the information to be provided to the appellant on foot of their request for environmental information. The function of this Office is to review the decision made by the Department at internal review stage in which, pursuant to the appellant’s request, it reviewed its decision to refuse access to information on the basis that no such information was held by or for it. I acknowledge that the Court of Appeal has made clear in Redmond v Commissioner for Environmental Information [2020] IECA 83, that proceedings before this Office are “inquisitorial rather than adversarial in character” and “the extent of the enquiry is determined by the Commissioner, not by the parties” (paragraph 51) and that the High Court in M50 Skip Hire & Recycling Limited v Commissioner for Environmental Information [2020] IEHC 430, made it clear that the Commissioner “enjoys a wide jurisdiction to conduct a de novo consideration of a request for access to environmental information”.
13. However, in circumstances where the Department has not raised the residency issue as a basis for refusal of the request and has not made any further submissions on the point and where the appellant has provided no further detail as to the basis for her suggestion that the Department’s failure to provide her with the information requested is due to “pressure being brought to bear on the AIE unit”, I do not consider it necessary or appropriate, to extend the remit of this Office’s enquiry beyond whether the Department’s refusal is justified on the basis of article 7(5) of the Regulations.
14. To that end, this review is concerned solely with whether the Department was justified in refusing access to environmental information on the basis that no such environmental information is held by or for it.
15. The appellant submits that evidence indicates that the requested information has existed at some point and that it is not credible that the Department has taken all reasonable steps to locate all of the information requested.
16. The Department submits that “the requested information is not held on any Departmental database. Enquiries were made with personnel in the Inspectorate who confirmed that no records exist in relation to this request. At internal review stage the decision was affirmed under Article 7(5). Additional enquiries were made with the Inspectorate, who again confirmed that no such record exists. I am satisfied that adequate searches were conducted to locate records relevant to this request.”
17. The Department also provided this Office with a copy of the email chain between the AIE Officer and the relevant inspectorate division in relation to the information requested by the appellant. The email chain begins on 15 December 2022 with an email from the AIE Officer asking the Grade 1 Regional Inspector for details of information relevant to the appellant’s request. The Inspector responded the same day that he had no involvement but copied in another Inspector who “would be in the best position to provide relevant information”. Later on the same day that Inspector responded as follows:
"This goes back to 2001-2002. There was a lot of anti-forestry feeling in the Rockchapel area and the Senior inspector, (named personnel 1), Regional inspector, (named personnel 2) and myself met the concerned locals. What brought the matter to a head was [an] afforestation application, which was coming right into the centre of the village, and it was felt, would seriously impact upon the village re landscape. It was verbally agreed (if it’s in writing, I’m not aware of it, but it was definitely given verbally) by (named personnel 1) that no additional afforestation would be approved within the three townlands surrounding the village and which make up the area of Rockchapel….”.
18. The Inspector, in a follow up email, in the same chain restated that he did not think there was any agreement in writing but noted that:
“There was a formal complaint from the Rockchapel anti-forestry group, to the EU relating to forestry in Rockchapel, but (named personnel 1) dealt with it. It might have been a few years later. There might be something in that about not carrying out afforestation in the Rockchapel area”.
19. On 10 March 2023, following the appellant’s appeal to this Office, the Department’s AIE Officer emailed the Inspector asking for the positions of “named personnel 1” and “named personnel 2” mentioned above as they could not be found on the Department’s staff directory. The Inspector responded on the same day that “the two names mentioned are retired senior staff members, no longer employed by [the Department].” He finished by restating that “We have no records on the issue”. The email chain finishes here.
20. This Office wrote to the Department on 17 July 2023 inviting it to provide further detail in a focussed submission. No response was forthcoming.
21. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. Article 7(5) of the AIE regulations is the relevant provision to consider where the question rises as to whether the requested environmental information is held by or for the public authority concerned.
22. The approach of this Office to dealing with cases where a public authority has effectively refused a request under article 7(5) is to determine 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 must necessarily apply. It is not normally the function of this Office to search for environmental information.
23. As outlined above, the Department provided details of the searches it conducted in response to the appellant’s request. It said it conducted “a search of the Departmental database(s)” and “a search of the physical file” in relation to CN66534 (i.e. the reference number for the afforestation application referred to in the appellant’s request) and that “the requested documents were not found”. No detail was provided by the Department of the steps involved in this search, for example what key words, if any, were searched for and on which databases or the steps taken to locate and search relevant physical files. Nor has the Department provided any details of its record storage practices.
24. In addition, the Department appears to have taken a narrow interpretation of the information request and seems to have focused its searches on locating the file for CN66534, whereas the request when read in full is broader than this. The request is for information relating to the “agreement that applied in February 2014 between FS and local community groups for FS to refuse any afforestation in Rockchapel…. and a copy of all subsequent agreements” which was alluded to in the refusal letter issued for the “application of afforestation pre-approval application” for CN66724. The fact that such agreements are listed as reasons for the refusal of application CN66724 suggests that those agreements pre-date that application. This suggestion is also supported by the detail provided by the relevant Inspectors, referred to in paragraphs 17and 18 above which suggests that any such agreements may have been made between 2001 and 2002 or a few years later. As such, I consider it reasonable to expect that searches of the Department’s electronic databases, or indeed any searches for any relevant physical records, would be broader than merely searching for files directly relating to CN66534.
25. The Department said its search involved sending “an email to the certifying inspector and grade 1 inspector, neither of whom could provide copies of the requested documents”. The Department provided a copy of the email chain between the AIE Officer and the Certifying Inspector and Grade 1 Inspector. In it the Certifying Inspector states that the agreement pertaining to the request by the appellant was verbally given and may not have been recorded in writing. He stated, “if it’s in writing, I’m not aware of it, but it was definitely given verbally…. that no additional afforestation would be approved within the three townlands surrounding the village and which make up the area of Rockchapel”. There is no detail provided by the Department as to what searches, if any, were undertaken by the Certifying Inspector to ascertain whether a written agreement exists or did exist. I also cannot see that that either Inspector was asked to carry out searches of their physical records, or indeed their electronic records, for certain appropriate keywords for example, in a bid to identify information relevant to the appellant’s request.
26. The Certifying Inspector stated in the same email chain, in response to being asked to confirm whether there was any written instruction: “No written instruction. There was a formal complaint from the Rockchapel anti-forestry group, to the EU relating to forestry in Rockchapel, but (named personnel) dealt with it. It might have been a few years later. There might be something in that about not carrying out afforestation in the Rockchapel area.” The Certifying Inspector stated that the aforementioned named personnel was a “senior staff member, no longer employed by [the Department]”. I cannot see any attempts to follow up on the aforementioned “formal complaint” which one would expect to have been dealt with in writing, and which the Inspector appears to be suggesting may be relevant to the appellant’s information request. I also see no evidence of an attempt to follow up with any personnel who may have taken over the role from the staff members mentioned who are no longer employed by the Department in order to identify the location of any information which might be relevant to the appellant’s request.
27. The Investigator sent a request to the Department for focused submissions on 17 July 2023. This was to provide an opportunity to the Department to provide “full and complete details of [its] steps and searches, along with its records management, retention and disposal policies in respect of the specific information/records sought in this case.” No response from the Department was received.
28. In the circumstances, and for the above reasons, 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. I also note that despite the appellant’s request to be informed of any additional steps taken by the Internal Reviewer to locate information, the Department did not indicate, in its internal review decision, that it had contacted the relevant inspectorate division in relation to the information requested and had received indications which, as outlined above, provided it with additional information on which to base further searches while also indicating that the agreement may have been concluded verbally rather than in writing. Had the Department conducted such searches, or even provided the detail requested by the appellant, this may have avoided the need for the intervention of this Office or, at the very least, narrowed the issues for consideration in this appeal. I would remind the Department that it 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 is also 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, Right to Know v An Taoiseach [2018] IEHC 372, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor 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.
29. I consider therefore that the most appropriate course of action is to remit this matter to the Department so that further searches can be carried out to identify and locate any information which may be held by or for it, within the scope of the appellant’s request. If no additional information is retrieved as a result of those searches, the Department should write to the appellant advising her of this and setting out the steps taken by it in conducting those searches. I appreciate that remitting the case back to the Department causes further delay for the appellant. However, I consider it to be the most efficient course of action to take in this instance.
30. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision. I direct the Department to conduct a new decision-making process on the appellant’s request.
31. 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.
Emma Libreri, on behalf of the Commissioner for Environmental Information