Decision
Ms. X & The An Coimisiún Pleanála [‘ACP’]
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-159807-D7S4L0
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-159807-D7S4L0
Published on
Whether ACP has established that it did not hold information coming within the scope of the appellant’s request, in accordance with article 7(5) of the AIE Regulations
3 October 2025
1. On 4 March 2025, the appellant wrote to ACP requesting information and copies of procedures as follows:
a) “Pre-application process
b) Strategic Infrastructure Development (SID) Applications
c) Appeals, Substitute Consents and Amendments”.
Additionally, the appellant stated that if any of the requested information was already publicly available, she would appreciate guidance from ACP, to where it could be accessed.
2. On 25 April 2025, ACP issued its decision, and it refused the appellant’s request. It stated that the requested information and procedures are governed by statutory provisions and have not changed in the past five years. However, ACP did identify existing statutory procedures and referenced internal documentation, and it advised the appellant that this information was accessible to members of the public through its Public Access Unit.
3. On 30 April 2025, the appellant sought an internal review stating as follows:
“The decision did not accurately interpret my request and did not provide the requested information and records. I was provided contact details for the public access team because checklists, validations and other relevant documentation was case specific, etc. I did not request checklists, validations and other relevant documentation for all or any cases. My request is for the procedural documents etc that instructs staff on how to complete such checklists and related processes .
Records were requested and under AIE regulations a schedule of records must be provided . […]”
4. On 27 May 2025, ACP issued its internal review decision which affirmed its original decision.
5. The appellant submitted an appeal to this Office on 17 June 2025.
6. I am directed by the Commissioner for Environmental Information to complete a review under article 12(5) of the Regulations. In doing so, I have had regard to submissions made by the parties in this matter. I also 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 ’).
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. In accordance with article 12(5) of the AIE Regulations, the role of the Commissioner 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 Commissioner will require the public authority to make available environmental information to the appellant.
9. The scope of this review is concerned with whether ACP was justified in refusing access to environmental information coming within the scope of the appellant’s request on the grounds that no relevant information was held by or for ACP under article 7(5) of the AIE Regulations.
10. While the AIE Regulations do not explicitly provide that the burden of proof rests with the public authority in relation to justifying a refusal to make information available, the Commissioner considers that the scheme of the Regulations, and of Directive 2003/4/EC upon which the Regulations are based, makes it clear that there is a presumption in favour of release of environmental information.
11. The thrust of the appellant’s AIE request is that information regarding the following three categories should exist:
(a) “Pre-Application Procedures for prescribed bodies
(b) SID Scoping and Notification Procedures and
(c) Notification Procedures for appeals, substitute consents and amendments”
12. In its submission to this Office, ACP summarised its position as follows:
“Part 1 – Pre-Application Procedures for Prescribed Bodies
The preparation of the list of prescribed bodies during the pre-application phase is governed by statutory provisions. The Commission does not maintain a discrete document or internal manual outlining the “standard procedure” because the legal requirements are embedded within the legislative framework. Any changes over time have been a result of legislative amendments. No standalone record or internal tracking document is cataloguing such changes […]”
Part 2 – SID Scoping and Notification Procedures
The SID scoping document outlines internal steps used by the Commission in scoping exercises associated with SID applications. It complements, rather than substitutes, the requirements of the Planning and Development Act and related EU environmental assessment obligations.
Part 3 – Notification Procedures for Appeals, Substitute Consents, and Amendments
With Part 1, the procedures governing the notification of prescribed bodies in respect of appeals, substitute consents, and amendments are defined by statute. The Commission does not hold a separate procedures manual addressing these issues. Relevant records exist only on a per-case basis and are not centrally compiled.
Where possible, the Commission made efforts to assist the appellant by:
• Explaining where relevant information resides (within individual case files)
• Providing sample documents to illustrate relevant procedures in practice.
• Referring the requester to the Public Access Unit for broader access to case file documentation. Public Interest Consideration
The Commission maintains that the public interest is appropriately served through:
• The publication of planning decisions and related documentation.
• Statutory public consultation processes.
• Public access to full case files via the Commission’s Public Access Unit.”
13. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned. It provides as follows:
“Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it ”.
14. This Office’s approach to dealing with this type of case is to assess 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.
15. What will be considered reasonable will vary from case to case, but as a general guide, I set out below 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.
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.
16. However, all of the above steps will not be required in each case and depending on the facts of the appeal, it may not be necessary for a public authority to provide evidence that it has carried out searches for the information sought.
17. Article 7(5) of the AIE regulations allows a public authority to refuse a request if it does not hold the requested information. In order for a public authority to successfully rely on this provision, it must, amongst other things, provide evidence that it carried out adequate searches for the environmental information requested. 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.
18. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also 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.
19. 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, whether at internal review stage or through an appeal to this Office.
20. In its submissions to this office, ACP outlined its response to this request and why it had concluded that it did not hold any further information relevant to the appellant’s request. I have carefully examined the steps that ACP says it took to ensure all information relevant to the request has been identified. I note how ACP provided an explanation to the appellant as to where relevant information resides within individual case files. I do not consider that information on individual case files comes within the scope of the appellant’s request. I note how ACP provided sample documents to the appellant and thereby, illustrated how the requested procedures are applied in practice. I acknowledge how ACP obliged the appellant’s original request, and it directed her to where she could access the requested information via its Public Access Unit.
21. Having considered the records on file, I am persuaded that ACP has provided sufficient reasons to the appellant that the requested environmental information is not held by them. I am satisfied that ACP provided adequate guidance to the appellant by referring her to their Public Access Unit for broader access to individual case file documentation, should she wish to access that information. Given the nature of the request in this case, and the explanations provided by ACP, I do not consider that it is necessary for ACP to provide any additional information on searches carried out in response to this request.
22. In light of the above, I affirm ACP’s decision to refuse the appellant’s request on the basis of article 7(5) of the AIE Regulations. It is open to the appellant to submit a further request to ACP should there be additional information that she wishes to access.
23. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm ACP’s decision.
24. 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