Decision
Mr X and The Forestry Appeals Committee
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-160149-H8D0C4
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-160149-H8D0C4
Published on
Whether the Committee was justified in refusing access to information relevant to the appellant’s request under article 7(5) of the AIE Regulations.
1. On 22 April 2025, the appellant made a request to the Committee for the following:
“Information which informed the 'Understanding' of the FAC that;
1) The In-Combination report for Felling and Reforestation project LM06FL0178, which is dated 22/01/2024 is an appendix to the AASRD of the same date on file and therefore appears to be the In-Combination report for the screened-out sites.
To include;
a) any consultation correspondence and
b) legal advice sought and received
To be clear; I am seeking information that informed the FAC's understanding that a document that is materially unattributed can be assumed to be part of a broader body of work even where there is no stated connection on the file.
2) The requirement under the Forestry Regulations 2017 for the Minister to have regard to submissions made on an application would not remove the authority of the Minister to make decisions on licence applications. Including in circumstances where such a decision could result in a material contravention of a County Development Plan or other statutory provision
To include;
a) any consultation correspondence and
b) legal advice sought and received
To be clear; I am seeking information regarding the FAC's understanding of the law (including its priorities) and how the Committee has come to their understanding either through consultation (legal or otherwise) or whether there is no information and the FAC has come to that understanding through lay knowledge.
Please interpret this request broadly.
Please provide a schedule of records with your decision.”
2. On 21 May 2025, the Committee issued its original decision. It stated that, following examination of material held by the FAC administration and the FAC committee that heard request LM06-FL0178, a number of records relevant to the request were identified. It said that as those documents were already in the public domain, there was no need to release documentation.
3. On 28 May 2025, the appellant requested an internal review of the original decision. The internal review decision was issued on 27 June 2025, affirming the original decision, stating that the only records located, falling within the scope of the appellant’s request, were records already sent to the appellant and those records are also already in the public domain.
4. The appellant appealed to my Office on 28 May 2024.
5. 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’).
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, my role is to review the Committee’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Committee to make available environmental information to the appellant.
8. The appellant stated, in his submission of 30 June 2025, that the Committee has not issued a decision in the context of the Regulations as it has not expressly specified the article of the AIE Regulations under which it made its decision. He said that, while the implication is that article 7(3) of the AIE Regulations formed the basis of the decision, a requester should not be required to “deduce a decision”.
9. Furthermore, he stated that, if article 7(3) of the AIE Regulations is the basis for the decision, he was not specifically directed to where, in the publicly available information, the information he requested was to be found. Previously, in his internal review request of 28 May 2025, he had asked to be directed to the precise text where the information deemed to fall within the scope of his request was to be found in the documents to which he had been referred.
10. The Committee stated, in its submissions of 29 July 2025, that a search was carried out to identify documents coming within the scope of the appellant’s request. The documents were already publicly available. They were identified, in the Committee’s original and internal review decisions, as follows:
• “The FAC decision letter for appeals FAC 033 & 034/2024 in relation to licence decision LM06-FL0178, a copy of which was provided to you on 16/04/2025.
• The Department of Agriculture, Food and the Marine documentation in relation to LM06-FL0178, which is available on the Forestry Licence Viewer (https://flv.apps.services.agriculture.gov.ie/). This includes the DAFM statement of fact that was provided to you directly,
• The Forestry Act 2014 and amending legislation which is freely available on https://www.irishstatutebook.ie/,
• The Forestry Regulations 2017 and amending legislation which is freely available on https://www.irishstatutebook.ie/,
• The Agriculture Appeals Act 2001 and amending legislation which is freely available on https://www.irishstatutebook.ie/
• The Forestry Appeals Committee Regulations 2020 and amending legislation which is freely available on https://www.irishstatutebook.ie/.”
11. During the course of this review, the Investigator wrote to both the Committee and the appellant commenting:
“Having reviewed the documents provided, it is not clear to me that the information provided to the appellant is, in fact, within the scope of the appellant's request. While the information provided may cover matters generally considered by the FAC in coming to a decision, and the decision itself sets out the reasons for the decision, the information does not include consultation correspondence and/or legal advice relating to the specific points raised in the appellant's request.”
12. She noted that the Committee had also indicated that it had carried out searches and it was her view that article 7(5) of the AIE Regulations appeared to be the relevant provision.
13. The Committee, in its response, stated “the decision for both records was 7(5) no records exist. The decision maker provided the links to the other documents that are already in the public domain as these documents are the legislation that the FAC relies upon, they were given to the requester trying to be helpful as the decision maker and then I was unable to locate anything else. I would still consider 7(5) to be the correct decision for this request.”
14. The appellant agreed that article 7(5) of the AIE Regulations was the relevant provision.
15. A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of this decision.
16. Having regard to the above, I am satisfied that the scope of this review concerns whether the Committee was justified in refusing access to information relevant to the appellant’s request under article 7(5) of the AIE Regulations.
17. As noted, the appellant stated that he considers that the Committee has not actually issued a decision in the context of the Regulations as, although it could be implied that article 7(3) of the AIE Regulations is the basis for the decision, this article is not specifically cited in the decision. He stated that the Committee has effectively failed to issue a decision in the context of the AIE Regulations and this should be considered a deemed refusal.
18. Article 10(7) of the AIE Regulations specifies that “where a decision is not notified to the applicant within the relevant period specified in article 7, a decision refusing the request shall be deemed to have been made by the public authority concerned on the date of expiry of such period.”
19. In circumstances where, in the present case, an internal review decision was issued and notified to the appellant within the requisite time limit, I do not consider article 10(7) of the AIE Regulations to be applicable, given that this article specifically states that it applies where a decision is not notified to the applicant within the relevant period.
20. Article 7(1) of the AIE Regulations provides a public authority shall, notwithstanding any other statutory provision and subject only to the AIE Regulations, make available environmental information that is held by or for them on request.
21. 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”.
22. In cases where a public authority has effectively refused a request under article 7(5), this Office must be satisfied that 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 this Office’s function to search for environmental information.
23. 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.
24. In relation to decisions of public authorities under the AIE regime, 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.
25. In its original decision, the Committee stated that documents are maintained for it by the Agricultural Appeals Office. It noted that individual members of the Committee do not, as a matter of course, maintain documents on the Committee’s behalf. It stated that any Committee records should be contained in the Agricultural Appeals Office. The Committee stated that it searched all physical and electronic documents held by it relating to the appellant’s request using the terms: LM06-FL0178 and then, in-combination, felling and reforestation project, County Development Plan, consultation and legal advice.
26. The Committee also stated that it emailed the FAC committee members who made the decision on the file and asked that they search their physical files, electronic files and emails for all records relating to LM06-FL0178 and then, in-combination, felling and reforestation project, County Development Plan, consultation and legal advice.
27. The Committee stated that it has at times, commissioned reports from external experts which would be published on the website of the Agriculture Appeals Office, if relied upon. The Committee may also refer to other documentation in its decision letters and its decision letters are published on the website of the Agriculture Appeals Office.
28. In its internal review decision, the Committee affirmed its original decision noting that no further records were found.
29. I consider that the Committee carried out reasonable searches in order to locate materials within the scope of the request. An explanation was provided as to where materials relevant to the request were likely to be located and an outline of the searches carried out and the individuals who carried out these searches was provided. Reasonable searches of these locations, both physical and electronic, were carried out and the keywords used in the searches were provided. While further materials, such as materials relating to legal advice and consultation, were requested by the appellant, I consider that the Committee has taken reasonable steps to identify information within the scope of the appellant’s request.
30. I will note that when it was suggested by this Office that article 7(5) may have been the more appropriate basis for a decision in this appeal, the Committee appeared to suggest (as set out in paragraph 13) that this, in fact, had been the basis for the decision in the first place. This is not clear from the decisions issued. The original decision issued by the Committee, in fact, purports to grant the request by reference to the links provided, but there is no indication as to how this information is relevant to the request, albeit it does make reference to article 7(5) in the schedule of records. I will accept that these links may have been provided in good faith and in an effort to assist the appellant, but, this is not at all clear from the decision. Had the original and internal review decisions been clearer, it may have avoided this appeal or at least shortened the appeal process. I would request that the Committee review this appeal with a view to ensuring that future decisions expressly specify the provisions of the AIE Regulations upon which a decision is based and clearly set out to the appellant whether and how information in fact comes within the scope of the request, or, whether the information is intended to provide context or background.
31. In any event, I consider it appropriate in the circumstances to vary the decision reached by the Committee to provide that reasonable searches were carried out and no further information is held in accordance with article 7(5) of the AIE Regulations.
32. From all of the foregoing, I consider that the Committee’s decision should be varied to refuse the request under article 7(5) of the AIE regulations.
33. Having carried out a review under article 12(5) of the AIE Regulations, I hereby vary the Committee’s decision and refuse the appellant’s request under article 7(5) of the AIE Regulations.
34. 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