Decision
Mr F and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-135613-M9V5V3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-135613-M9V5V3
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 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
I request that the information is provided in an electronic format as soon as is possible.”
2. The Department issued its original decision on 23 November 2022. It said:
“having considered your request, 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 you requested does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. Following examination of material held by DAFM, I have been unable to locate any records relevant to your request. Steps taken to ascertain whether we held the information requested were:
To avoid duplication of records I have not included the correspondence you have had with the Dept over this issue. There were no formal meetings in relation to this issue and there are no records/documents in relation to the information you have requested above.”
3. On 23 November 2022 the appellant responded to the Department. He said: “The records of my correspondence fall to be released under the Regulations; therefore I consider your decision to be in error. I will give you the opportunity to provide the records which are covered by my request before I seek an internal review. Can you also elaborate on the following;
4. No response to the appellant’s request appears to have been received from the Department. The appellant therefore requested an internal review on 30 November 2022.
5. On 23 January 2023 the Department issued the result of its internal review. It said: “Having reviewed this request, I have decided that you should be granted access to all of the records and I annul the original decision accordingly. I attach copies of records numbered 1. I have also enclosed a schedule with this letter, it shows the documents that I consider relevant to your request. It gives a brief description of each document.”
6. The appellant appealed to this Office on 20 February 2023.
7. 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:
8. The appellant sent a detailed submission to this Office. The submission contained the following points:
“At no point did either decision maker contact me for any clarification regarding my request. I have had correspondence with the Assistant Secretary General of the Department, Mr Colm Hayes on the subject of the timing of licence publication going back to April 2022 under the subject “Publication of Licence decisions – Aarhus”. On the 11 May 2022 Mr Hayes indicated that the Department would review my concerns. I would have anticipated that this review would have generated some records. On the 1 July 2022 Mr Hayes wrote; “We are still examining the various issues on this which as you know are complex”. On 28 August 2022 Mr Hayes wrote; “We have amended our systems and will now be publishing licence decisions daily from Monday 8th August”.
The correspondence with Mr Hayes falls within the scope of my request and should have been included in the information provided. Information provided under the AIE Regulations is effectively being released to the public at large so to fail to provide information on the basis that the information may already be in the possession of the requester is not, in my view, a correct interpretation of the Regulations.
I would have expected some information to exist regarding the amendment to the system which resulted in licences being published daily. Was a circular not issued to staff or some form of notification given. How is such a change effected without any records being generated? The original decision maker indicated that no formal meetings took place but this does not preclude informal meetings taking place or internal correspondence between staff members looking at addressing what the Department has described as a “complex” issue. A complex issue is unlikely to be resolved without some form of meeting and I would expect some record of such a meeting or meetings to exist.
No information was provided by the internal review decision maker in respect of (b), (c), or (d) of my request. No reason was provided as to why the requested information had been refused. The original decision maker was clearly aware of my correspondence so would have been aware of the relevant member of staff to contact. I appreciate that the information request under item (d) may fall to be refused as a matter of legal privilege but any such correspondence would need to have been identified and a public interest test applied under Article 10.”
9. On 22 March 2023 the public authority sent the following submission to this Office:
“At this stage (original decision stage) this was refused as no records could be found. On internal review stage one document was identified and the appellant was granted that document in full. The argument from the appellant is “not all of the information requested has been provided and no basis for refusal has been given under the regulations”. Reasonable steps were conducted at AIE and internal review stage to source all information in relation to their request. AIE stage searches found nothing that was relevant. There is no one place that complaints of this nature would be stored as many different sections within Forestry have access to and upload regularly to the Forestry Licence Viewer and would correspond with the public in regards to the FLV and specific publications on it. Therefore a number of colleagues were contacted in relation to a search of their emails. As well as numerous shared inboxes, to see if that returned any relevant information. The scope was broad searching buzz words like “complaint, FLV, publication. There was a huge number of returns on those searched and one email was found to be relevant which was granted in full to the appellant.”
10. This review is concerned with whether the Department was justified in refusing access to environmental information in relation to the timing of the publication of forestry licences on the Department’s website, on the basis that no such environmental information is held by or for the Department, as per article 7(5) of the AIE regulations.
11. 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.
12. The Department has not explicitly sought to rely on article 7(5) of the AIE Regulations in its internal review, but its position is that all relevant information pertaining to the appellant’s request has been released and that “reasonable steps were conducted at AIE and internal review stage to source all information in relation to their request”. Therefore, it is implied that the Department is relying on article 7(5) and the question to be addressed is whether the Department is justified in relying on article 7(5) of the Regulations, on the basis that no relevant information is held by it.
13. 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 often necessary for the public authority to provide some context regarding the relevant issue and information regarding its internal procedures and the type of documents one could expect to be generated related to the particular request. It is not normally the function of this Office to search for environmental information.
14. In its original decision the Department outlined the steps it had taken to ascertain whether it held the information requested by the appellant. These included: “A search of the relevant database(s) in relation to the information listed above has returned no information” and “Enquiries were made with other relevant personnel, no information/records exist that relate to your request.” There was no detail provided of which databases were searched and with which key words. There was also no detail of which personnel were contacted or what searches these individuals carried out.
15. In response to the Department’s original decision, in email dated 23 November 2022 the appellant asked a number of questions, none of which were answered or acknowledged by the Department. He questioned “which relevant databases have been searched and what keywords were used?” and “can you please identify the relevant personnel with whom you made enquiries.” If an attempt at answering these questions had been made by the Department, either when they were originally posed, or even later at internal review stage, it is possible it could have avoided the need for the appellant to appeal to this Office, or at a minimum it might have narrowed the scope of this review. It would also have been useful if the Department had provided a short explanation to the appellant as to how the decision to change the timing of the publication of forestry licenses was reached and implemented in order to support its statement that no formal meetings were held on the issue.
16. The Department at internal review stage said it identified one document relevant to the appellant’s request, which it released. No details were provided at internal review stage of what searches were conducted or steps were taken to identify the information requested by the appellant.
17. In submission to this Office, the Department attempted to explain why no information of relevance was identified, “There is no one place that complaints of this nature would be stored as many different sections within Forestry have access to and upload regularly to the Forestry Licence Viewer and would correspond with the public in regards to the FLV and specific publications on it…. a number of colleagues were contacted in relation to a search of their emails. As well as numerous shared inboxes, to see if that returned any relevant information.” The Department provided us with an internal email chain which begins on 15 November 2022 with the AIE officer asking colleagues for “info ye may have in relation to this request would be very much appreciated. It may well be a refusal but just wanted to check and see if there is any info available”. A response was received later that day: “Besides complaints from the requester himself and subsequent responses, I would have little or no correspondence of any kind in relation to the timing of the publication of forestry licences.” And a second response was received later that day from another colleague, “from a felling point of view, most correspondence on this matter is with (the appellant) himself. I will do a search and come back to you. However, could you ask him, if he actually wants his own correspondence? I presume not?”
18. This email chain does not explain the steps taken by the Department to locate the relevant information. It does however indicate that a number of potentially relevant records relating to correspondence from the appellant himself were identified. These were not released, but no explanation or justification in line with the AIE regulations has been provided for this. The fact the relevant information identified by the Department was correspondence generated by the appellant himself is not in itself a valid exemption under the AIE Regulations. I note in internal correspondence the suggestion that the appellant could not be requesting his own correspondence – but from what I can see this point was never clarified with him).
19. The Department in submission to this Office said that searches were conducted in shared inboxes to see if they returned any relevant information. “The scope was broad searching buzz words like “complaint, FLV, publication. There was a huge number of returns on those searched and one email was found to be relevant which was granted in full to the appellant.” The Department did not identify those who were asked to search their emails, and has provided no explanation how “a huge number of search results” was narrowed down to one relevant record (which was released to the appellant at internal review stage). It has not explained who carried out this process and what criteria, if any, was used to determine that all bar one record from the “huge number of results” were not relevant to the appellant’s request.
20. I would remind the Department that it is subject to a duty to provide reasons for its decisions. This arises, not only by virtue of articles 7(4) and 11(4) of the AIE Regulations, but is also a core principle of administrative law and a fundamental element of constitutional justice. The Courts, and 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 (see, for example, Right to Know v An Taoiseach [2018] IEHC 372, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bórd Pleanála [2019] IESC 90). This duty arises so that a requester can take a view as to whether they consider the position of the public authority to be justified, or whether they wish to exercise the entitlement to have that position 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. The investigator wrote to the Department on 17 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.
22. 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. I would ask that the Department take particular note of the queries posed by the appellant in his request for internal review and in his appeal to this Office as set out above.
23. Taking the above into account, I cannot be satisfied that reasonable and appropriate searches have been carried out as I have not been provided with sufficient detail as to the steps taken to search and retrieve information within the scope of the appellant’s request.
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.
Julie O’Leary, on behalf of the Commissioner for Environmental Information