Decision
Right to Know CLG c/o Mr Ken Foxe and daa PLC
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-136877-P1T9D3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-136877-P1T9D3
Published on
Whether the Department was justified in refusing access to the requested environmental information on the basis that no relevant environmental information was held by or for it
1. On 8 November 2022 the appellant contacted the Department with the following AIE request: “All information related to the investigation of the construction of an alleged illegal forest road in connection with felling licence TFL00510420”.
2. The Department’s original decision of 19 December 2022 refused access to the information sought under article 7(5) of the AIE Regulations, on the basis that “the documentation [the appellant] requested does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken”. The Department outlined that the requested documents were not found after a search of the Departmental databases, and also that following an email to the Grade 1 Forestry Inspector, no copies of the requested documents could be found.
3. The appellant submitted a request for internal review on 20 December 2022. He attached a copy of a record received from the Department as a result of a previous AIE request. The record itself is email correspondence from a Regional Inspector in the Department to a Field Inspector, dated 25 February 2022, asking for a field inspection to be carried out on felling licence TFL00510420 as information had been received alleging that an illegal road had been constructed and timber haulage commenced. The appellant contends that this record indicates that the Department does hold information within the scope of his current request.
4. The appellant sent follow up emails to the Department on two occasions in January 2023 asking if it could indicate whether it intended to issue a decision on his request for internal review.
5. The Department issued its internal review decision on 16 February 2023 wherein it affirmed the decision of the original decision maker. The Department stated that no records relevant to the appellant’s request were located following a search of departmental databases. The Department also made reference to the email of 25 February 2022 received by the appellant under a previous AIE request and confirmed that “the Inspectorate have advised that no investigation was carried out as the roadway in question was built outside of the forest and its purpose was to serve the applicant’s farm”. The Department stated that this was a planning matter for the local authority.
6. The appellant submitted an appeal to this Office on 13 March 2023.
7. I have been 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:
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, the public authority may be directed to make available environmental information to the appellant.
9. The scope of this review is confined to whether the Department has taken reasonable and adequate steps to identify all information held by or for it within the scope of the appellant’s request such that article 7(5) of the AIE Regulations applies.
Position of the parties
Appellant’s position
10. In his submission to this Office, the appellant outlined his view that the Department cannot rely on article 7(5) as a basis for refusal when there is at least one record relevant to his request known to exist, that being the email of 25 February 2022 received under a previous AIE request to the Department. He contended that his request was for information related to the investigation of an alleged illegal forest road and that this would encompass reports of the alleged illegal road as well as any follow up information.
11. The appellant argued that it is difficult for him to accept that the email instructing a field inspection to be carried out did not generate any further environmental information such as a Field Inspection Report or that the Department didn’t open a case file on the Alleged Illegal Road report or have records available on this file.
12. The appellant queried how the decision maker could know that “the roadway in question was built outside of the forest and its purpose was to serve the applicant’s farm” unless some form of investigation took place following the Regional Inspector’s instruction.
13. The appellant also submitted that “there is an information gap between the Regional Inspector’s email instructing a Forestry Inspector to prioritise an investigation and the decision-makers comment that no investigation took place”.
14. The Department provided a submission to this Office on 5 April 2023 wherein it referred to the appellant’s contention that information must exist based on records provided to him as a result of a previous AIE request to the Department.
15. The Department submitted that the appellant was given all information available at that time in relation to an allegation that an illegal road had been constructed. However, the Department also stated that following enquires with personnel in the Inspectorate no further investigation was carried out as it was deemed that no illegal forestry road had been constructed. Consequently, the Department reiterated its position that there are no records relevant to the appellant’s request.
16. The Department also provided email correspondence to this Office “in relation to enquiries carried out” to identify and retrieve information within the scope of the request. This correspondence comprised of one internal email record between the Department’s AIE Unit and the relevant Inspectorate. The email from the AIE Unit makes reference to “a copy of the statement of evidence from...inspection of 28 February 2022” and asked the Inspectorate if it had access to any further information or if it knew who might. The Department’s AIE Unit also made reference to a note on IFORIS which outlined that the issue of a possible unauthorised road would be investigated separately. In response to the AIE Unit enquiries, the Inspectorate advised that “no investigation took place after we received correspondence from the applicant. The roadway in question was built outside of the forest and as per applicant will serve his farm. This is a planning matter for the local authority”.
17. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned. 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.
18. I note the Department’s reliance on article 7(5) in this case on the basis that no relevant records were found relevant to the request. The Department’s submission notes that it is “satisfied that adequate searches were conducted to locate records relevant to this request”. However, it has provided no detail of those searches. Its position is also undermined, in my view, from the outset, by the fact that its searches did not locate the email received by the appellant in a previous AIE request. The subject matter and content of that email would be the kind of information that would reasonably be expected to show up on any keyword searches relating to this request. Examples of search terms such as ‘field inspection’, ‘felling licence’, ‘alleged illegal road’ or even the felling licence number itself could have been used yet there is no evidence from the Department that any electronic searches were conducted.
19. In addition, as outlined above, the email correspondence supplied by the Department in relation to enquiries carried out to identify and locate information within the scope of the request, makes reference to the existence of a copy of the statement of evidence from an inspection of 28 February 2022. The email, dated 13 December 2022, from the AIE Unit to the relevant Inspectorate notes that “there is a copy of the statement of evidence from [named employee’s] inspection of 28/02/2022”. There is no further reference to this statement of evidence yet it would appear to me that this information is related to the appellant’s original request as it appears to be evidence of an inspection carried out on foot of the email of 25 February 2022 which gave rise to this AIE request.
20. It is not clear from the Department’s email correspondence what searches were conducted to locate the existence of a statement of evidence of the inspection, nor is there any indication as to whether this document was considered for release to the appellant. In circumstances where it would appear that there are at least two documents relating to the appellant’s request and yet the Department refused the request on the basis that no relevant records existed, I cannot find that article 7(5) applies in this case.
21. As noted above, the email from the AIE Unit dated 13 December 2022 states that “there is a copy of the statement of evidence”. This indicates that before the Department even issued its original decision, on 19 December 2022, it was aware of the existence of at least one relevant record to the appellant’s request. And yet it proceeded to rely on article 7(5) and take the position that no information exists.
22. Further, the fact that this particular document would appear to exist also raises the question of what further information may exist related to the investigation of an alleged illegal forest road. The Department’s position is that that no further investigation was carried out as it was deemed that no illegal forestry road had been constructed. However, it is clear that there is supporting information relating to this decision which the appellant has not been supplied with. The response to the Department’s AIE Unit from the relevant Inspectorate notes that “no investigation took place after we received correspondence from the applicant” and that “the roadway in question was built outside of the forest and as per the applicant will serve his farm”. That information is, in my view, within the scope of the appellant’s request for “all information related to the investigation of the construction of an alleged illegal forest road in connection with felling licence TFL00510420”. This request includes, in my view, information relating to a decision to refrain from conducting such an investigation. It is unfortunate that the Department seem to have narrowly interpreted the scope of the appellant’s request in this case. The Department appear to have concluded that as no formal investigation took place there is no relevant information available, yet it did not consider the existence of any information which led to that decision. I consider that the Recitals to the AIE Directive would lend support to the position that the approach envisaged by the AIE Regulations is that requests should be interpreted broadly rather than narrowly and I consider the Department’s approach to the appellants’ request to have been overly narrow. I also note that in C-279/12 Fish Legal and Shirley v Information Commissioner and Others, the Advocate General expressed the view that, in light of the spirit of the Directive and its objective of promoting access to information held by public authorities in the broadest sense of the term, situations of uncertainty should always be resolved in favour of the requester (see paragraph 120).
23. As matters stand, in circumstances where the Department has not identified any information that it holds relevant to the request, and yet there appears to be relevant environmental information in existence, I must conclude that the Department has not taken sufficient steps to identify and locate all relevant environmental held by it.
24. I am of the view that the most appropriate course of action is to annul the decision of the Department in its entirety, the effect of which is that the Department must consider the appellant’s request afresh and make a new, first instance decision in accordance with all relevant provisions of the AIE Regulations.
25. If further searches identify information within the scope of the appellant’s request, then a decision on disclosure should be reached in accordance with the provisions of the AIE Regulations. If it is the case that, having taken reasonable and adequate steps to identify and retrieve information within the scope of the request, the Department remains of the view that no further relevant information is held by or for it, it should advise the appellant of this and set out the steps taken by it in conducting those searches
26. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the Department’s decision that, after all reasonable steps to ascertain its whereabouts were taken, the information requested does not exist or cannot be found. I remit the matter to the Department who should process the appellant’s request in accordance with the AIE Regulations.
27. 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