Decision
Ms X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153894-N9Y5B4
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153894-N9Y5B4
Published on
Whether the Department had provided the appellant with all relevant information in accordance with article 7(1) of the AIE Regulations and whether the Department had established that it did not hold any further information in accordance with article 7(5) of the AIE Regulations
1. On 14 September 2024, the appellant submitted a request to the Department seeking access to the following:
“I refer to the Briefing Note for the Secretary General meeting with Coillte Chair and Coillte CEO on 12 June 2024 (AIE/24/491), copy attached.
Please provide, by email, all information related to the review of alternative options by a DAFM ecologist for:
a) Setbacks from water bodies reducing the productive forest area
b) Conditions linked to protecting the badger habitat”
2. On 15 October 2024, the Department responded to the appellant, refusing the request as“no records exist” . The decision stated in relation to searches conducted,“Contact was made with…, DAFM Forestry Inspector, in relation to part b) of your request. who indicated that the review has not commenced. …DAFM Forestry Inspectors were also contacted in relation to your request, no records were received in relation to your request”.
3. On 15 October 2024, the appellant requested an internal review of the Department’s decision. The appellant maintained the briefing note referred to in her request stated, as of June 2024,“A DAFM ecologist is currently reviewing alternative options in relation to both these conditions” . The appellant argued for the decision to be factually correct the briefing note must be factually incorrect. The appellant highlighted the decision did not confirm if any searches were undertaken or if the DAFM Forestry Inspectors responded to the contact.
4. On 12 November 2024, the Department issued its internal review decision. In doing so, it affirmed its original decision and stated that two members of the Forestry Inspectorate team had been contacted as part of the internal review process. The first individual“…confirmed that the original AIE request AIE 24 588 was not relevant to his area, and therefore he has no information relating to this AIE request.” The second official contacted “… responded and confirmed that he conducted a search of his personal email using the search word “Fahy”. No information was found relating to this AIE request. …noted that no proposed changes to setback along water bodies or requests were issued. He also noted that this AIE request specifically mentions ‘water bodies’ (a.k.a. ‘aquatic zones) and not ‘relevant watercourses. He confirmed that comments have been exchanged on proposals concerning ‘relevant watercourses’, but not ‘water bodies. A water body (as cited by AIE request) is a Water Framework Directive term that equates to the definition of an 'aquatic zone' used by DAFM-Forestry”.
5. On 22 November 2024, the appellant submitted an appeal to this Office on the grounds the Department failed to demonstrate that all reasonable steps had been taken to identify the requested information.
6. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the Department and the appellant as outlined above and to correspondence between my Office and both the Department and the appellant on the matter. 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’).
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, my role is to review the Department’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Department to make available environmental information to the appellant.
9. The scope of this review is to determine whether the Department were justified in refusing access to the requested material under article 7(5) of the AIE regulations on the grounds that no information relevant to the request is held by the Department.
10. The general thrust of the appellant’s position is that the Department’s decision under article 7(5) of the AIE Regulations was not justified. The appellant provided a submission to this Office dated 27 November 2024 with comments/observations in support of her position. While I do not propose to repeat the contents of same in full here, I can confirm that the Department was provided with a copy of this correspondence and I have had regard to it.
11. This appeal was accepted by this Office on 2 November 2024, and the Department were provided with an opportunity to make submissions on that date. No response was received. A further request for submissions was sent to the Department on 13 February 2025, in which the Department was asked to provide full and complete details of the steps and searches it had undertaken, along with details of its record management, retention, and disposal policies, in respect of the information sought in this case. No response was received to this request, or to a reminder email sent on 7 March 2025. .
12. 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”.
13. 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.
14. 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.
15. Article 7(5) of the AIE regulations allows 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, among other things, provide evidence that it carried out adequate searches for the environmental information requested.
16. There is no evidence in the Department’s original decision, dated 15 October 2024, of any searches having been conducted. Rather, the Department simply stated that“Contact was made with…, DAFM Forestry Inspector, in relation to part b) of your request. who indicated that the review has not commenced. …DAFM Forestry Inspectors were also contacted in relation to your request, no records were received in relation to your request.” Despite no records being received it is unclear whether any actual searches were carried out.
17. The internal review decision dated, 12 November 2024, confirmed a search was conducted by a named staff member of his“personal email using the search word “Fahy”” . It is unclear why this search term was used or how the search word “Fahy” was in any way relevant to the request. Considering both decisions issued by the Department, I note that the searches conducted by the Department were limited to three individuals and restricted to a single email keyword search with an unrelated search term. No evidence was provided of searches across broader departmental databases, meeting notes, or other communications that could reasonably contain relevant information.
18. Given this, I find that the Department did not take all reasonable steps to identify and locate the requested information relevant to the appellant’s request.
19. The internal review decision further states that the request specifically mentions “water bodies” and that “comments have been exchanged on proposals concerning relevant watercourses, but not water bodies. A water body (as cited by AIE request) is a Water Framework Directive term that equates to the definition of an 'aquatic zone' used by DAFM-Forestry.” I consider that this interpretation of the request is unduly narrow, and that it would have been reasonable to provide the appellant with the relevant information concerning water courses, or at a very minimum to engage with the appellant as to whether she wished to have this information provided to her. Given the reference to ‘relevant watercourse’, it appears that relevant information is available but was not captured due to an unduly restrictive search approach. Further, the term watercourse does not appear in the briefing note referred to in the request, so this does not provide a full explanation as to why the information sought is not held by the Department.
20. Accordingly, it is my view that the most appropriate course of action to take in this case is to remit the matter to the Department for a fresh decision-making process to enable it to undertake searches for any information it may hold that may be relevant to the request and, thereafter, to issue a fresh internal review decision to the appellant in response to her request.
21. Having regard to the above, I cannot find that the Department has taken adequate steps to identify and locate all relevant environmental information held by it. As such, I am unable to find that article 7(5) of the AIE Regulations can be relied upon by the Department.
22. Accordingly, I annul the decision of the Department in its entirety and direct it to consider the appellant’s request afresh and make a new internal review decision in accordance with the provisions of the AIE Regulations, and in particular the requirement to take adequate steps to identify and locate all environmental information held by it within the scope of the request.
23. 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