Decision
Ms X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-137148-T5C1J9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-137148-T5C1J9
Published on
Whether the Department was justified in refusing access to certain information on the basis that no relevant environmental information was held by or for it
1. On 27 February 2023, the appellant made the following request for information to the Department:
“I attach, as an example, the completed DAFM Application for a Tree Felling Licence Form dated 28 February 2019 in relation to (application reference number) LM04-FL0053. I refer to the application page headed 'Supporting Information for TFL application' and specifically to the reference to 'Iconic' as one of the Designations noted in the 'Supporting Information for TFL application'.
Please provide, by email, all information held by DAFM relating to DAFM's definition of 'Iconic' in the context of DAFM's tree felling application (which application form was completed, as one example, in relation to LM04-FL0053)”.
2. On 1 March 2023, the Department issued its original decision: “my decision is to refuse you access to the information sought under article 7(5) of the European Communities (Access to Information on the Environment) Regulations 2007 to 2018 as the documentation information you requested do not exist. The information that you have requested may be accessible from Coillte. This AIE has been completed in accordance with the AIE Regulations”.
3. The appellant made a request for an internal review on 1 March 2023:
“I have already been informed by Coillte that DAFM provided the felling application form and not Coillte - see the email from (Coillte personnel) attached. I think it best that I request an Internal Review and see where we go from there - unless you have any better ideas on this matter. Your thoughts would be appreciated.
As an aside, I find it hard to understand that DAFM does not have an objective definition of 'iconic' as used in the felling application form. If DAFM does not have an objective definition or even know what 'iconic' means in this forestry context - how does DAFM use the information received by parties answering this question??”
4. The Department issued its internal review on 31 March 2023. It said: “following a further search by the relevant units the documentation you requested cannot be found or does not appear to exist. I therefore affirm the decision of the original decision maker to refuse access to the information under 7(5) of the (AIE Regulations) as the documentation you requested does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.”
5. The appellant appealed to this Office on 4 April 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 of Agriculture, Food and the Marine. In addition, I have had regard to:
7. The appellant made a detailed submission to this Office on 19 April 2023, the main points of which are detailed below:
“The felling application form at the centre of this AIE request is a standard form that was formulated by DAFM. The form is completed by applicants applying to DAFM to fell trees. Felling of trees requires the prior written consent of DAFM. Applicants on tree felling will include Coillte, but the tree felling application form to be submitted to DAFM was not formulated by Coillte.
Page 3 of the felling application form is headed ‘Supporting Information for TFL (“Tree Felling Licence”) application’.
Box 2 on page 3 includes references to eleven (11) “Designations”. The applicant is required to answer each question in this section to assist DAFM in the processing of the felling application.
[…]
[The first “designation” is] “Iconic” – “the subject of this AIE request”.
[…]
…10 of the 11 designations on the felling application form have a legal basis and/or an objective meaning and there should be no difficulties, on the part of the applicant, in completing the form in relation to 10 of the 11 designations. The exception is the first designation referring to “Iconic”.
DAFM do not appear to know what they mean by “Iconic” in the context of the felling application form”. If DAFM do not know what is meant by “Iconic”, how is the application supposed to know how to complete the form in relation to this designation?
Even more worrying, how does DAFM interpret and use the replied received from applications under the “Iconic” designation on the felling application form?
[…]
What the adjective “Iconic” means in the context of a felling application is anyone’s guess.
On 8 February 2022, I asked (Personnel 1) of Coillte what she thought “Iconic” meant for the purposes of the felling application form. (Coillte Personnel 1) replied on 16 February 2022
‘Iconic are scenic areas as set out by DAFM – as far as I understand.’
However firstly, DAFM do not ‘set out’ or designate scenic areas and secondly, even if DAFM did, the applicant would need to know the geographical extent of each scenic area (as, for example, the publicly available information regarding the geographical extent of each SPA, SAC etc) in order for the applicant correctly to complete this part of the felling application form.
The Investigator may wish to ask DAFM for a list of DAFM’s designated scenic areas, together with accompanying maps of each scenic area, in order to demonstrate that Coillte are wrong with regard to their understanding of the term “Iconic” and that Coillte appear to have no idea of what is meant by DAFM when they use the word “Iconic” on their felling application form.
A copy of the email dated 16 February 2022 from (Coillte Personnel 1) is attached.
The felling application form template which is the subject of this AIE request has probably been used by DAFM thousands of times in the course of DAFM’s forestry licensing activities. It is completely unacceptable, in relation to a forestry activity which has significant affects on the environment, that DAFM has drafted an application form template where part of the form has no known meaning to the person completing the form and DAFM are unable to provide any information on this matter (as per the subject AIE request).
Furthermore, neither (Department AIE officer 1) nor (Department AIE officer 2) have justified how they have come to the conclusion that the requested information cannot be found or does not appear to exist….
Common sense dictates that the requested information does exist – otherwise, how, and on what basis, did DAFM draft the relevant part of felling application for template…. Given that the requested information relates to a felling application form template which has probably been used thousands of times by DAFM, I consider it unlikely that all the files which contain the requested information have been misplaced by DAFM.
Given the evidence within this appeal, I contend that the searches undertaken by both (Department AIE Officer 1) and (Department AIE Officer 2) (whatever they were) were:
Inadequate in relation to their breath, or inadequate in relation to their depth, or inadequate in relation to the time undertaken on the searches, or a combination of more than one of the above.
I strongly argue that all reasonable steps have not been taken by DAFM to locate all of the requested information”.
8. On 19 June 2023, the Department provided the following submission to this Office:
“At AIE stage after initial requests for information from our colleagues who work on Coillte Licensing no information was returned and the AIE was refused on the basis that no documentation existed. During the Internal Review process further searches were conducted which again yielded no clarification or documentation. In preparation for this submission I contacted my colleague in DAFM who works with Coillte Licensing again. He informed me that although no documentation exists that the use of the term “Iconic” is not used in relation to license applications since 2021 as in 2022 a new format for applications was introduced. I have attached an older version of an application pack as well as a new version.
There was no documentation that could be found in relation to the implementation of the previous version of the application pack and the origin of the word Iconic as a designation is unknown and no definition is held by the Department that has been documented, based on the searches conducted. It is also no longer utilised by the Department, as can be seen on the new application pack attached”.
9. This review is concerned with whether the Department was justified in refusing access to environmental information relating to the Department’s definition of 'Iconic' in the context of its tree felling application form, on the basis that no such environmental information is held by or for the Department, as per article 7(5) of the AIE regulations.
10. 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 whether the question arises as to whether the requested environmental information is held by or for the public authority concerned.
11. The Department has relied on 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 question to be addressed is whether the Department can rely on article 7(5) of the Regulations.
12. This Office’s approach to dealing with cases where the public authority has refused a request under article 7(5) is to examine 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. It is not normally the function of this Office to search for environmental information.
13. The Department provided limited detail in both its original decision and internal review as to why it was relying on article 7(5). No detail of what searches were conducted was provided in support of the Department’s conclusion that the requested information “does not exist or cannot be found”. In submissions to this Office, the Department submitted that at internal review stage, the AIE officer had emailed Department colleagues, who work on Coillte Licensing, in relation to the requested information.
14. The Department provided this Office with copies of these internal search emails. The first was sent from the AIE officer to personnel in the “Felling Section”, on 8 March 2023. It said “On our original decision letter we had advised requester that the iconic designation was provided by Coillte and is not terminology used by DAFM in the context of felling licence applications. However the requester had previously been advised by Coillte that DAFM provided the felling application form and not Coillte - see the email from (Coillte Personnel) attached. Do you know who in DAFM might have provided that template to Coillte?”. A response was received on 24 March 2023, which noted that the “felling section would not have this information”. There is no detail provided of any searches that the Department undertook to conclude that it did not have this information.
15. A similar email was sent by the AIE Officer on the same day (8 March 2023) to another Department colleague, who, the Department says, works with Coillte Licences. A response was received on 30 March 2023, “I cannot locate any information relating to the use of the term ‘Iconic’ by Coillte in their Felling licence applications”. Again, there was no information detailing what searches, if any, were carried out.
16. The Department provided this Office with an internal email sent on 30 May 2023, after the appellant had appealed to this Office, asking the colleague mentioned in paragraph 16, to confirm the following:
“1. Tree Felling Licence Form dated 28 February 2019 used for Coillte applications, was this created by DAFM?
2. If so, who was involved in its creation?
3. Are there previous versions of this form available?
4. On the application page headed 'Supporting Information for TFL application' there is a reference to 'Iconic' as one of the Designations noted in the 'Supporting Information for TFL application'. Where did this designation originate from?
5. Is there a definition of this or a general understanding to which “iconic” relates?
6. Do you have, or know who may, any correspondence in relation to the creation of Tree Felling Licence Form dated 28 February 2019?”
17. A response was received to this email on 19 June 2023, “We last used this TFL application format for Coillte in 2021. I have attached for your information an example of an older 2021 versions with ‘Iconic’ and the one we have used since 2022.” This response contained no attempt to answer the questions posed by the AIE officer in the 30 May 2023 email (detailed in paragraph 16 above). While the Department has contended that the term “Iconic” has since been removed from the Tree Felling Licence application form, this does not answer the appellant’s information request or explain whether sufficient searches have been conducted in relation to it.
18. The Investigator wrote to the Department on 31 July 2023 with a specific request to provide full and complete details of the steps taken to identify and locate information within the scope of the appellant’s request, “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 to these questions was received.
19. The requirement for a public authority to clearly set out the actions it has taken, in response to a request, under article 7(5) of the AIE Regulations, is not only relevant for this Office in its considerations as to whether reliance on article 7(5) is justified but also gives confidence to the appellant that suitable search procedures were conducted in response to their request.
20. Furthermore, 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 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. 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.
21. If the Department contends that no information pertaining to the appellant’s request exists or that such information cannot be found after all reasonable steps to search and identify such records have been taken, it should provide full and complete details of these steps and searches, as indicated above.
22. In the absence of a response from the Department, I cannot be satisfied that reasonable and appropriate searches have been carried out as I have been provided with no detail as to the steps taken to search and retrieve information within the scope of the appellant’s request.
23. I consider the most appropriate course of action to take at this stage 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 the provisions of the AIE Regulations.
24. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision in this case and direct it to undertake a fresh decision-making process. 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.
25. 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