Decision
Mr A and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-136552-Z3P3Q5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-136552-Z3P3Q5
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 24 November 2022, the appellant contacted the Department and requested the following information in electronic format:
“All information which was used to derive the content of the Screen Out Scenarios (Column 3) in the Forest Service’s Habitat Table v18Dec19 used as part of its AA Procedures;
Records to include, but not restricted to, details of meetings (including Minutes), correspondence (any media), technical reports, scientific studies, ecological expertise provided (internal and external), etc”.
2. The Department’s original decision identified four records relevant to the appellant’s request, and granted access to those four records. The Department also provided a schedule outlining the relevant documents.
3. The appellant made a request for internal review on 27 January 2023 on the basis that in his view, all of the information relating to his request had not been provided.
4. The Department issued its internal review decision on 23 February 2023 wherein it affirmed the decision of the original decision maker. The Department also made reference to the appellant’s contentions that all relevant information had not been provided to him. It informed the appellant that “having conducted additional searches of departmental databases and enquiries with relevant personnel all records held by this Department which are relevant to your request have been issued”. The Department also provided the appellant with a link to the website of a planning and consultancy firm, outlining that it may hold additional information.
5. On 14 March 2023 the appellant submitted an appeal to this Office on the basis that all relevant information covered by his request had not been provided.
6. I have now completed my 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:
• 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.
7. 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.
8. 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.
Appellant’s position
9. The appellant provided a submission to this Office on 3 April 2023 and included some background information to his request. He submitted that he “make[s] or input[s] in to numerous appeals against forestry licences” issued by the Department and that “as part of the grounds of appeal in relevant cases [he] use[s] the argument that the Habitats Table used by [the Department] as a basis to screen out projects from the need for an Appropriate Assessment under the Habitats Directive contains no evidence base for the criteria applied”. The appellant also submitted that the basis of his request was to try and “elicit the information that underpins the derivation of the criteria used in the Habitats Table and hence assess the scientific validity of [the Department’s] screening process”.
10. The appellant outlined his view that from the records provided to him, he believed that further information which falls within the scope of his request and is held by the Department, has not been provided to him. He made reference to one of the emails which was furnished to him as part of his request, which referred to an attachment, but no attachment was provided. The appellant contended the omission of this document and submitted that it is exactly the type of information that he considered his request to cover.
11. The appellant also submitted that due to his position that a relevant record had not been provided to him with no explanation, that this led him to consider the possibility that the Department failed to also identify and provide other information that falls within the scope of his request.
Department’s position
12. The Department provided a submission to this Office on 25 April 2023 wherein it referred to the appellant’s contention that an attachment to an email dated 10 December 2019 was not provided to him. The Department submitted that enquiries were made with the Senior Inspector who “provided all the documents he held in relation to this request”.
13. The Department also made reference to the fact that the email the appellant referred to was sent on 10 December 2019, and the AIE request was made on 24 November 2022. It submitted that Departmental emails are held for two years and outlined that the Department “could not be expected to retain/store internal or external email correspondence in relation to a particular matter in the event that it may or may not be requested under the AIE process”. Finally, the Department submitted that it was satisfied that adequate searches were conducted to locate records relevant to this request.
Findings
14. 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.
15. I note the Department’s position that emails are held for two years, but I find this response somewhat contradictory when it follows comments which outline that a Senior Inspector was in a position (in 2023) to confirm that he had provided all information he held in relation to the request when the email concerned was from 2019. The Department’s position is that this information would not have been available to view beyond 2021 and it has not provided any basis as to how the Senior Inspector could conclude that all documents had been provided if it is their position that he would not have had sight of information which may have been held due to the Department’s emails not being retained beyond two years.
16. In addition, it does not appear that the appellant was informed at any stage of any time retention periods concerning emails held, nor is there any evidence of the Department citing any relevant retention policy. There is also no evidence of any date parameters considered by the Department in searches, or any specific keywords used in an effort to locate any information relevant to the appellant’s request.
17. Further, having examined the email raised by the appellant wherein he contends that a relevant attachment was not provided to him, the Investigator was of the view that the Department should have taken the opportunity at its internal review decision to provide a reason for the omission of the attachment referenced in Record 3 granted in this case. The Department did not provide any justification for its reasons to not share the attachment nor did it acknowledge its omission. There was also an opportunity to address this when the Department was offered to provide final submissions, but the Department did not provide any final submissions in this case.
18. 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.
19. I note the appellant’s follow up correspondence to the Department querying the omission of an attachment that would appear to be relevant to his request, however as outlined above, if an appellant is not satisfied following receipt of an internal review decision issued by a public authority, the next step is to make an appeal to this Office concerning the information which has been refused. Nonetheless, I do also wish to highlight that the appellant would not have been in the position that required those additional queries if the Department had been forthcoming with its reasons as to why the email for Record 3 did not include the noted attachment.
20. In any event, while the Department has demonstrated that it carried out certain database and electronic searches in this case, the Department has failed to adequately justify these searches and provide clear reasons for its decision. This is evident in the lack of justification in omitting what would appear to be a relevant document from release to the appellant, and there is also a lack of specific detail in the Department’s searches pertaining to any date parameters used, specific keywords, nor is there any clear evidence to support the Department’s data retention claims. Further, the Department’s poor reasoning also raises the question of what further information may exist relevant to the request but has also not been supplied to the appellant.
21. As matters stand, in circumstances where the Department has not identified any further information that it holds relevant to the request, and yet there appears to be further 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.
22. 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.
23. 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.
24. 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.
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.
Julie O’Leary
on behalf of the Commissioner for Environmental Information