Decision
Mr N and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-146330-J9T6H6
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-146330-J9T6H6
Published on
Whether the Department was justified in refusing the appellant’s request based on article 7(5) of the AIE Regulations and whether the Department had taken adequate steps in an effort to identify all relevant information
14 May 2024
1. On 1 November 2022, the appellant requested the following information from the Department:
“All information related to the issue of the timing of the publication of forestry licences on the Department’s website, to include;
a. External queries / complaints
b. Internal correspondence
c. Minutes from any meetings where this matter has been discussed
d. Legal advice”
2. An initial decision was issued by the Department on 23 November 2022, whereby it said no relevant records were identified. This was followed by an internal review as requested by the appellant on 23 January 2023. In that internal review the initial decision was annulled and the Department said it located and was granting access to 1 record relevant to the appellant’s request. The appellant appealed to this Office on 20 February 2023 and following my review under article 12(5) of the AIE Regulations, I annulled the Department’s decision on 12 December 2023 and directed it to undertake a fresh decision-making process. In that decision I said if no further information within the scope of the appellant’s request is located by the Department, it should provide full and complete details of the steps taken by it in conducting those searches (see case reference number OCE-135613-M9V5V3 for further details).
3. Following my decision issued on 12 December 2023, the Department conducted a fresh decision making process and issued its decision to the appellant on 11 January 2024. It said it had identified 7 records relating to the request, and granted access to all 7 records. It also said that it was refusing any records containing legal advice under article 8(a)(iv) as “the information requested is subject to legal professional privilege”. It attached a schedule of records stating its decision to release all 7 records identified. The decision also says it applied the public interest test under article 10(3) and 10(4) and “have determined that the public interest would not be served by disclosing the information you request”.
4. The appellant requested an internal review of this decision on 11 January 2024. He stated he was not satisfied that all information requested has been identified. In particular,“Items (b) and (c) have not been addressed. Under Item (d) Legal Professional Privilege is not a basis for refusal under the Regulations. The decision maker has not demonstrated that the exemption applies. The application of Article 10 is superficial and generic and is a copy / paste job rather than a meaningful assessment.”
5. The Department issued its internal review on 2 February 2024. It said it examined the records relevant to this request and was varying the decision. It said it had identified further records relevant to the request (bringing the total to 35), and was granting release of these to the appellant. It said:
“I have decided that the decision made by the initial decision-maker should be varied and in accordance with Article 10 I now attach additional information that was supplied in regard to this AIE request. I note the points raised by you in your internal review. Any discussions in relation to this issue were informal between staff therefore no records exist in relation to points B and C. Additionally, in relation to item D, as this was an administrative issue, legal advice was neither required nor sought therefore no records exist. Article 7(5) applies.”
6. The appellant responded to the Department on the same day asking for an explanation as to how it came to the decision that any discussions in relation to this issue were informal between staff therefore no records exist in relation to points B and C of his request. He also asked for an explanation as to how it arrived at the position that there are no records existing in relation to part D of his request. The appellant does not appear to have received a response. The appellant sent a follow up email to the Department on 9 February 2024 but does not appear to have received a response to this either.
7. The appellant appealed to my Office on 13 February 2024.
8. 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 of Agriculture, Food and the Marine. I have also examined the contents of the records at issue. 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’).
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. 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.
11. 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.
Submissions
12. In submission to this Office the appellant outlined his position that in the absence of a response to the clarifications he requested at internal review stage, the Department has not demonstrated that all reasonable steps have been taken to identify the information requested. The appellant asserts that the Department’ decision maker has accepted verbal assurances from unidentified members of staff. He is of the opinion that not all relevant records have been identified in relation to Part A of his request, and that no explanation has been provided as to the Department’s claim that “this is not a legal issue” (Part D of the request).
13. On 3 April 2024, the Department made submissions to this Office. It provided the following details of the steps taken by the initial decision maker to identify relevant records:
- A searching email was issued to various personnel including the Higher Executive Officers (HEOs) of the Felling Section and Approvals Section and the Assistant Principal (AP) of Felling & Alleged Illegal Felling asking them to provide “any relevant records”.
- The HEO of Forestry Support Unit was contacted. The HEO’s carried out searches of their email inboxes and shared section email inboxes.
- The HEO of Forestry Support Unit carried out a search of the eDocs and S Drive shared folders using such terms as “FLV, Forestry Licence Viewer, Public Access, Decision Timings, Meetings on FLV”.
- 61 records were identified and sent to the Decision Maker. It said that after evaluating these records the decision maker decided that 7 were within the scope of the appellant’s request to which full access was granted.
14. The Department provided details in its submission of its data retention policy – namely that emails are automatically deleted after the elapse of two years. The Department stated that older emails may be saved to one of the Department’s databases if there is a valid reason for doing so, for example in order to publish an email on the Forestry Licence Viewer (FLV). It said:
“In order for an email to be published on the FLV it must be saved to the Department’s iFORIS database. Other emails to be preserved are saved to eDocs, the Department’s cloud-based database. Prior to the adoption of eDocs emails may have been saved to the Forestry Division Shared Drive (S Drive). Records on iFORIS are organised by Department reference number, for example Contract Number or TFL Number, and cannot be searched by keyword. Without a reference number to search by, the iFORIS database cannot be checked for the information requested. The information stored on iFORIS is specific to the reference number it is saved under, and includes records such as applications, payment letters, submissions on a specific contract, Appropriate Assessment documents etc, and not the type of information sought as part of this request (with the possible exception of item a, in which case the record would have already have been identified from searching the email inboxes).”
15. The Department laid out further steps taken by it at internal review stage to identify relevant records including:
- The internal review decision maker and the HEO of AIE Unit contacted the Assistant Secretary General to request further records. One additional record was provided.
- After a further review of the records already provided, on 2 February 2024 the internal reviewer issued their decision to vary the decision of the initial decision maker by providing additional records.
16. Upon appeal to this Office, the Department says it reviewed the remaining records that were provided to the AIE Unit and which have not been released. The Department states these records do not relate to the issue of the timing of the publication of forestry licences on the Department’s website, and as such they are outside the scope of this request.
17. The Department gave some context as to the subject matter of the appellant’s request. It said “the decision to change the timing of release of decisions on the website, which was already meeting the legal requirements, was made to provide decisions as quickly as possible to interested parties. To stress DAFM were already meeting their legal obligations in this regard. DAFM possess no further records as this was not a matter that warranted further attention or would generate further documents. DAFM issue licence decisions on the FLV automatically once the decision has been made formally on DAFM records. In addition, legal advice was neither required nor sought. Therefore in relation to items b., c. & d. of this request, no records exist and these parts of the request are refused having regard to article 7(5).
18. 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 arises as to whether the requested environmental information is held by or for the public authority concerned.
19. 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. The requirement under article 7(5) of the AIE Regulations for a public authority to clearly set out the actions it has taken in response to a request is not only necessary for this Office in its considerations but also gives confidence to the appellant that suitable search procedures were conducted in response to their request.
20. In dealing with cases where a public authority has effectively refused a request under article 7(5) of the AIE Regulations, this Office must be satisfied that adequate steps have been taken to identify and locate relevant records, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply.
21. What will be considered reasonable will vary from case to case. In a recently published OCEI decision, (issued on 27 March 2024) I set out a general guide of 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. These include:
(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.
22. The above is an indicative list and it is for the Department to consider what steps may be relevant in an individual appeal. I note the internal review at issue in this appeal was issued on 2 February 2024, some weeks before the aforementioned composite decision was issued to the Department. But regardless of this, I did set out in detail in my decision of 12 December 2023 what is expected of the Department in relation to applying article 7(5) of the AIE Regulations, when the appellant first brought an appeal to this Office in relation to this request for information related to the timing of the publication of forestry licences on the Department’s website. It is welcomed that after my decision was issued annulling the Department’s decision, a further 7 relevant records were identified and released to the appellant. This was followed by the identification and release of further relevant records at internal review stage. I also welcome the level of detail provided by the Department in its submissions dated 2 April 2024. Unfortunately, I am still not satisfied that adequate steps were taken by the Department to identify and locate relevant records in this case, or that sufficient reasons have been provided. I have set out the reasons for this below.
23. Firstly, the Department in submissions to us stated that a “searching email” was issued to the Higher Executive Officers (HEOs) of the Felling Section and Approvals Section and the Assistant Principal (AP) of Felling & Alleged Illegal Felling asking them to provide “any relevant records”. It says the HEO of the Forestry Support Unit was contacted and the HEO’s carried out “searches of their email inboxes and shared section email inboxes.”
24. While it is clear the Department has attempted to supply some detail regarding the personnel who conducted the searches, it has still not provided sufficient detail of what these searches entailed– for example details of what search terms were used in the email inboxes and what the result was. It does not explain what these personnel were asked to search for other than “relevant records”, or explained whether these searches were in relation to Part A of the request only, or in relation to the request as a whole.
25. The Department states that the HEO of Forestry Support Unit carried out a search of the “eDocs and S Drive” shared folders using such terms as “FLV, Forestry Licence Viewer, Public Access, Decision Timings, Meetings on FLV”. But it is unclear whether the key word searches carried out by the HEO of the Forestry Support Unit were the same key words searched for in the email inboxes of the HEOs of the Felling Section and Approvals Section and the Assistant Principal of Felling and Alleged Felling.
26. With regards the Department’s conclusion that no records exist in relation to Part B and C of the appellant’s request, the Department stated “Any discussions in relation to this issue were informal between staff therefore no records exist in relation to points B and C”. No explanation was provided in the internal review as to how the Department reached the conclusion that any discussions were informal and that no records exist. It is unclear which personnel were consulted to arrive at this conclusions and what searches if any were otherwise conducted to reach this conclusion. The appellant asked for clarification on this from the Department. There was also an opportunity to address this when the Department was offered to provide final submissions, but again, no explanation has been provided.
27. I have also considered what searches were conducted with regards part D of the appellant’s request. The Department stated in submission to us that “legal advice was neither required nor sought. … no records exist and these parts of the request are refused having regard to article 7(5)”. This position is in contrast to the Department’s earlier statements in its initial decision where it suggested it sought to rely on professional legal privilege and the exemption afforded in article 8(a)(iv) of the AIE Regulations.
28. In its internal review it stated “in relation to item D, as this was an administrative issue, legal advice was neither required nor sought therefore no records exist. Article 7(5) applies”. I don’t consider this a sufficient explanation of how it came to the conclusion that no legal advice exists and more context is required on what the Department means by “an administrative issue”. The Department has provided this Office with a copy of an email exchange from 1 February 2024 where the AIE officer is corresponding with the Assistant Principal Officer (APO) in the Felling Section in relation to this request. In the email, the APO says that when the initial AIE request came in “I don’t believe we did look for legal advice. As none would be required. Publication times of decisions, e.g. each day, are purely an administrative decision. There are no legal implications.” He says in that email that he will do another search when he is back in the office “as the email search does not allow me to go back very far for some reason”. I cannot see that it was ever confirmed via email or otherwise whether a subsequent search was carried out, so it is unclear whether a further search for the existence of legal advice was carried out and if so under what search terms and what the results were.
29. I note in the same email the APO suggests to the AIE Officer to contact the legal team regarding the interaction of legal privilege and the AIE Regulations, and whether the legal team hold any records relating to the request. It is unclear (and there is no evidence of) whether the legal team were ever contacted in relation to carrying out searches to determine whether legal advice was sought for the publication licences. In any event, I accept it may well be the case that legal advice was not sought in relation to the subject matter of this request, but a sufficient explanation of how this conclusion was arrived at was not provided to the appellant in the internal review, or to this Office subsequently. If it had been there could have altered the substance of appellant’s appeal to this Office and perhaps narrowed the scope of this review.
30. The Department in submissions to us stated that 61 records were identified and sent to the Decision Maker at initial decision stage. It said that after evaluating these records the decision maker decided that 7 were within the scope of the appellant’s request to which full access was granted. It is unclear the process that the decision maker went through to determine which records were out of scope and what criteria if any was used for this exercise. It is also not clear what additional searches if any were undertaken and by whom in order to locate the additional records that were found at internal review stage.
31. In submission to us, the Department said “I have reviewed the remaining twenty records that were provided to AIE Unit and which have not yet been released. I have reached the decision that these records do not relate to the issue of the timing of the publication of forestry licences on the Department’s website, and as such they are outside the scope of this request.” If these are records that were identified as relevant as part of the searches carried out, I don’t think sufficient explanation has been provided by the Department as to why they were later deemed out of scope. No detail was provided as to how this larger number of records was narrowed down. It has not explained what criteria, if any, was used to determine that a number of records were “out of scope” of the appellant’s request.
32. While the Department has made efforts to explain in submission to this Office the steps it took to identify and locate all records related to this request, the internal review is lacking in any form of sufficient detail. The reasons for the conclusion that no relevant information is held by or for the public authority should be provided to the appellant – the Department failed to do so to a sufficient standard here. The duty to give reasons, which arises not only by virtue of the AIE Regulations and Directive, 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 andBalz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, along with articles 7(4) and 11(4) of 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. As I have laid out above, 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.
33. Where the appellant raises particular issues in his request for an internal review, those should be addressed in the internal review decision. To my mind the internal review in this appeal acknowledges the questions posed by the requester in his request for an internal review, but does attempt to answer them sufficiently.
34. I acknowledge this is the second such decision in relation to this particular request for information, but in the circumstances I feel 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 issue a new internal review in accordance with all relevant provisions of the AIE Regulations.
35. The Department should note my comments above, and should ensure these issues are addressed in the new internal review decision. 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 considered the matters addressed in this decision, and carried out any additional searches that may be deemed necessary, the Department remains of the view that no further relevant information is held by it, the Department should set out the reasons for this in full in a new internal review decision.
36. 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 internal review on the information sought coming within the scope of this review.
37. 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