Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-132731-B8R6H2
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-132731-B8R6H2
Published on
Whether the Department was justified in refusing access to information relating to the appellant’s request on the basis that no further relevant environmental information is held by or for it
29 January 2024
1. On 26 September 2022, the appellant contacted the Department and requested the following information in electronic format:
“Information which informed the administrative guidance in section 19.9.4 of the Forest Standards Manual relating to Forest Road Works whereby it is considered that the Items 1-7 do not fall within the scope of the Regulations and do not require the prior approval of the Minister”.
2. The appellant also furnished the Department with a descriptive list of Items 1-7 as set out above, which he outlined as follows:
i. “The construction of forest roads (including works ancillary to such construction) where the works commenced before 14th October 2010.
ii. The upgrade or repair to existing roads and works ancillary to such upgrade or repair.
iii. The construction of tracks and paths less than 2.9 metres wide to facilitate forest management and other forest activities (but not including new forest roads constructed to a standard which would allow the haulage of timber by trucks).
iv. The construction of stacking areas, turntables, lay-bys and culverts (see note below).
v. Tree felling to facilitate or enable road works (this felling is subject to the provisions of the 1946 Forestry Act).
vi. The construction of roads for reasons other than to serve a forest (e.g. to serve a wind farm). (Note, permission under the Planning & Development Act 2000 may be required for such roads.)
vii. The extension of an existing forest road by up to one-third of its length, provided any such extension does not exceed 90 metres in length, but excluding any extension that would be situated within a NHA, pNHA, SAC or SPA, or is within 100 metres of:
3. The appellant also requested that the Department provide a full schedule of records with its response.
4. The Department’s website sets out that the “Forestry Standards Manual provides guidance on the operational requirements of the various support schemes (Afforestation Scheme, Forest Road Scheme, etc.), which are subject to the conditions set out in each of the respective scheme documents, as published by the Department”.
5. The Department’s original decision of 25 October 2022 outlined that the appellant was granted access to all of the records and a schedule of records was also attached. The Department’s decision also set out that the schedule listed the records that the Department considered relevant to the appellant’s request.
6. The appellant made a request for internal review on 26 October 2022 on the basis that in his view, all of the information covered by his request had not been provided.
7. The Department issued its internal review decision on 25 November 2022 wherein it affirmed the decision of the original decision maker. The Department also made reference to the appellant’s contentions that all information had not been provided to him. It informed the appellant that “after conducting a search and reviewing over 1,094 emails” that the records the appellant was provided with were all that were found to be relevant to his request.
8. On 29 November 2022, the appellant submitted an appeal to this Office on the basis that all relevant information covered by his request had not been provided.
9. 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 any submissions made. 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’).
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.
12. 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. This Office’s approach to dealing with cases where a public authority has effectively refused all or part of a request under article 7(5) is that it 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.
13. The appellant provided a submission to this Office and made reference to the emails which were provided to him by the Department, stating that from the content of the records provided to him that more information should exist. He also submitted that he recognised that “this doesn’t mean that records do still exist but I am not assured that all reasonable steps have been taken to locate records that should exist”. He further submitted his view that the information provided gives a sense of an incomplete picture as to why Section 19.9.4 is as it is, and that the released emails appear to reference further information related to his request but that no further information was provided to him.
14. The Department provided this Office with an email from 13 October 2022 which set out a breakdown of email searches with date parameters and corresponding search terms carried out by a Grade 1 Forestry Inspector to establish if any relevant information existed. The Forestry Inspector outlined that searches conducted from 1 September 2010 – 1 July 2011 using the keywords ‘road, manual, extension and standards’, returned 153 emails. He also provided that searches conducted to include 1 July 2014 – 1 February 2015 using the same keywords returned 941 emails. The request to recover any relevant emails also outlined the specific individuals whom the emails would have been sent between, including one retired member for which approval was received to access their emails.
15. It is not clear, however, how the Department concluded that from 1,094 emails only three were deemed to be relevant to the appellant’s request. The Department’s email of 13 October 2022 outlined that the Forestry Inspector tasked with going through the identified emails “could only find three [emails] of relevance to the AIE Regulations request”. While I acknowledge the Department’s efforts to carry out searches as outlined above, this Office needs to be satisfied that all information held by it which is relevant to the appellant’s request has been taken into consideration in making its decision.
16. I have no evidence before me that provides any reasoning from the Department as to the process which led to just three emails being selected for release from the large cohort identified. There is no mention of any steps taken to filter the identified emails, or any indication of any particular criteria which deemed the selected emails suitable to the appellant’s AIE request. Further, it is not clear to me how the Department came to the conclusion that the above noted date parameters were suitable to apply for the appellant’s request. There is an indication within the email of 13 October 2022 supplied by the Department regarding searches carried out that the chosen dates for email searches relate to when the administrative guidance for the Forests Standards Manual was initially being prepared in 2011 and then also when it was updated in 2014. However, the Department has not specifically set out its reasoning regarding this decision nor was the appellant informed that searches for his request were filtered by certain date parameters.
17. It would also appear from the Department’s email of 13 October 2022 that the Forestry Inspector tasked with searching for any relevant information was of the view that after carrying out certain searches that further information may exist but that it would take additional time to complete “any searches through other staff members archived emails who may have commented on the administrative guidance as it was being prepared in 2011 and updated in 2014 is likely to take as long if not longer”. There was no further reference to any additional searches being carried out following these comments.
18. Moreover, I also note that the appellant was not supplied with any of the steps taken to search for information in this case, albeit him being informed that “after conducting a search and reviewing over 1,094 emails the records you have been provided with are all that have been found to be relevant to your request”. The actual steps taken by the Department to locate information in this case is the exact kind of information which should have been supplied to the appellant at original decision or at best the internal review decision in providing adequate reasons for the AIE request refusal. The Department had a further opportunity to justify its searches when it was offered to provide a submission in this appeal but it did not provide a submission when requested to do so. The Department had indicated to this Office that they would like the opportunity to provide a submission at a later date if required, however in the circumstances of this case my Investigator was of the view that further submissions were not required and it was more timely to proceed to a decision on the basis of the information already before her.
19. In any event, while the Department has demonstrated that it carried out certain electronic searches in this case, the Department has failed to adequately justify these searches and provide clear reasons for its decision. The Department have also failed to consider any physical searches and have not provided details on the procedures and arrangements in relation to the storage, filing, archiving, retention, and destruction of the type of information sought in this request.
20. 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. 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.
21. The appellant submitted his appeal in this case in order to establish if the Department had taken all reasonable steps to locate the information covered by his request. It is my view that in accordance with articles 7(4) and 11(4) of the AIE Regulations, the Department should have been more forthcoming with its reasons on how it reached its decision.
22. As matters stand, I cannot find that article 7(5) applies in the circumstances where I must conclude that the Department has not taken sufficient steps to identify and locate all relevant environmental information held by it.
23. 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.
24. 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.
25. 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 decision-making process on the information sought coming within the scope of this review.
26. 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