Decision
Mr. X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-160515-P3H4Q9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-160515-P3H4Q9
Published on
Whether the Department had taken sufficient steps to identify and locate all relevant environmental information within the scope of the appellant’s request in accordance with article 7(5) of the AIE Regulations.
20 March 2026
1. On 14 May 2025, the appellant submitted a request to the Department seeking access to the following:
“Since the coming in to force of the Forestry Act 2014 in May 2017, I wish to receive;
A copy of all matters identified in paragraph 1 (a), (b) and (e) [of the Forestry Regulations], which should have been made publicly available for all licences issued by the Minister which are not currently publicly available.
As this information should have been published as a statutory requirement DAFM cannot make a charge for the information. In the alternate, DAFM could publish all of the licences and relevant documents on the FLV and provide me with a list of the licence references. (…)”
2. On 11 June 2025, the Department issued its decision refusing the request, as its obligations to publish‘the decision’ is fulfilled by publication on the Forestry Licence Viewer since 13 December 2023.”
3. On 12 June 2025, the appellant sought an internal review of the Department’s decision on the following two counts:
1) S.I. No. 416 of 2020 was only introduced in October 2020 - DAFM cannot retrospectively apply the law. All records which meet my request prior to the introduction of the S.I. fall to be released without charge. Page 4 of 5
2) On decisions published after the S.I was published, you are still required to release the information and can, according to the Regulation, charge a reasonable fee for doing so.
You cannot refuse the information on the basis that it does not exist when it clearly does.
4. On 8 July 2025, the Department issued an internal review decision and in doing so affirmed its original decision.
5. The appellant brought an appeal to this Office on 11 July 2025.
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:
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’).
10. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
11. 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. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
12. The scope of this appeal concerns whether the Department was justified in refusing access to environmental information on the grounds that no further information was held by or for the authority concerned in the meaning of article 7(5) of the Regulations.
13. 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 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.
15. Article 7(5) of the AIE regulations allows 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, among other things, provide evidence that it carried out adequate searches for the environmental information requested.
16. In this case, the appellant contends that the refused information does exist and states as follows:
“The Department published licence decisions. This indicates that licences were issued but the information required by the Forestry Regulations was not published. […]
For any licence decision that was actually made, the Department has to generate and/or hold records that cover at least:
• (a) the decision (grant/refuse) + conditions
• (b) the main reasons/considerations (and reasons for conditions)
• (e) the measures to avoid/reduce/offset adverse effects (where necessary) […]
So: the information exists per-licence, in decision letters, decision reports, conditions schedules, “reasons and considerations” text, AA Determinations, etc. […]
17. In its submission, the Department stated as follows:
“Searches Conducted – Internal Review [8 July 2025]
No further searches were deemed necessary at internal review stage as necessary information around the interpretation and implementation of the Forestry Regulations were received at original decision stage by the SME. […]
Summary of the Department’s Position
Upon review of the original and internal review decision, I have decided to affirm the internal review decision to refuse the request under article 7(5) due to a misinterpretation of the Forestry Legislation by the requestor.
Section 21(3) of the Forestry Act 2017, S.I. No. 191/2017 states:
The Minister shall publish the decision and make available to the public the matters referred to in paragraph (1).
It is the Department’s position that the obligations to publish decisions is fulfilled by publication on the Forestry Licence Viewer since 13 December 2023 and previously on the Register of Decisions as found via the link: Licence Applications for Felling, Afforestation and Forest Roads - Register of Decisions
Regarding ‘making available to the public the matters referred to in paragraph (1)’, a member of the public is only automatically entitled to the information outlined in Regulation 21(1) if they are the applicant or if they have made a submission or observation on the relevant licence application as laid out in paragraph 21(1).
Therefore, there are no records that relate to the request […]”
18. Having carefully considered the above, I find that the Department has failed to set out in sufficient detail the steps it took to identify and locate relevant environmental information. There is no evidence presented in the Department’s submissions that any searches were undertaken by the Department regarding the appellant’s request. In fact, I note in its internal review decision, the Department stated“[n]o further searches were deemed necessary […]” . The Department did not provide any indication as to what searches were carried out to reach this determination. Simply citing the Forestry legislation to conclude that “no records relate to the request” makes it difficult to assess the searches that have been carried out by the Department to reach that decision. It provided no detail of any specific search terms used; the specific physical files searched, or the specific electronic databases or main frame computers searched. In addition, the Department has not shown that it gave any consideration to any other individuals or sections consulted, which may hold information relevant to the request.
19. 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 public authority’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. All that being said, and for the reasons I have set out above, I am not satisfied that the test set out in article 7(5) of the AIE Regulations - whether the public authority has taken all reasonable steps to locate the information sought – has been met in this instance.
20. Accordingly, I annul the decision of the Department in its entirety and direct it to consider the appellant’s request afresh and make a new internal review decision in accordance with the provisions of the AIE Regulations, and in particular the requirement to take adequate steps to identify and locate all environmental information held by it within the scope of the request.
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.
Gemma Farrell
On behalf of the Commissioner for Environmental Information