Decision
Mr. X and The Forestry Appeals Committee [the FAC]
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-161982-L1Y9J3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-161982-L1Y9J3
Published on
Whether the FAC provided the appellant with all relevant information in accordance with article 7(1) of the AIE Regulations and whether the FAC established that it did not hold any further information in accordance with article 7(5) of the AIE Regulations.
3 December 2025
1. On 04 July 2025, the appellant made a request to the FAC under the AIE Regulations seeking access to the following:
“1) Information related to the development (and modification) of the timeframes applied by the FAC in respect of allowing parties to an appeal to make submissions in response to DAFM's Statement of Facts (either directly or subsequently). To include a copy of the FAC's procedure regarding the making of submissions in relation to DAFM's Statement of Facts.
2) Information relating to any requests for extensions to the submission deadlines of Item 1 by any party to an appeal.
3) Information relating to the FAC's response to requests made under Item 2
4) Information relating to any submission extension applied for any other reason/s.
Items 2, 3 and 4 can, for this request, be restricted to the period 1-1-23 to date.”
2. On 27 July 2025, the FAC issued its decision part granting the request, stating:
“1) We are in the process of completing procedures which will be made available on our website once completed. I have included a step-by-step guide used by admin for processing submissions. 2, 3 & 4) I conducted a search of the electronic documents held by the FAC relating to your request. I searched the electronic file system, along with the shared email and my own email using the following terms.
• Extension
• Extend
• Extended
• Additional Time
• More time
The records found are detailed in the schedule of records.”
3. On 29 July 2025, the appellant sought an internal review of Item 1 of his request, on the basis that the FAC “[…] cannot be in the process of compiling information whilst at the same time refusing a request under Article 7(5). That is a contradictory position.”
4. Further the appellant opined that “[…]my request seeks information related to the procedure so any information as to why it was decided to compile and publish the procedure falls within the scope of Item 1 .”
5. On 27 August 2025, the FAC issued an internal review decision, affirming the original decision to “part grant the request” and “refuse access to items 1 ” under Article 7(5) of the AIE Regulations.
6. On 01 September 2025, the appellant submitted an appeal to this Office, in doing so he confirmed that the appeal related to Item 1 of the original request only.
7. On the 24 September the FAC upon notification of the appellant’s appeal by this Office, confirmed that there was no additional information located that related to this request.
8. I am directed by the Commissioner for Environmental Information to carry out a review of this appeal, which I have now completed under article 12(5) of the AIE Regulations. In so doing, I have had regard to the submissions made by the appellant and, in the absence of any submissions from the FAC, its decisions in this case. 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);
• the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
9. What follows does not 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 decision and to affirm, annul or vary it.
11. This review is concerned with whether the FAC was justified in refusing access to the information relating to Item 1 of the appellant’s request under article 7(5) of the AIE Regulations, on the basis that no further relevant environmental information is held by or for it.
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.
13. In cases where a public authority has effectively refused a request under article 7(5), this Office 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.
14. In the appellant’s original request, he requested the following with respect to Item 1:
“1) Information related to the development (and modification) of the timeframes applied by the FAC in respect of allowing parties to an appeal to make submissions in response to DAFM's Statement of Facts (either directly or subsequently). To include a copy of the FAC's procedure regarding the making of submissions in relation to DAFM's Statement of Facts.”
15. In the FAC’s original decision dated 29 July 2025, it held that it was part granting access to Item 1 and that the FAC was in the process of completing procedures, which would be made available on its website when finalised.
16. Alongside its original decision, the FAC furnished the appellant with a word document entitled ‘Admin processing of submission’ document described as a step-by-step guide used by admin for processing submissions. On review the submissions referred to are those received in response to DAFM's Statement of Facts.
17. In its internal review decision dated 27 August 2025, the FAC stated the following:
“The FAC does not hold an approved, final procedure governing submission in response to DAFM’s Statement of Facts. Accordingly, that element is refused under Article 7(5) as information is not held. Formal procedures are being developed and there are no records available for release at this time. Article 7(5) applies to the request for a final, adopted procedure; ongoing development does not create a releasable record. The approved procedure will be published once adopted .”
18. In his appeal to this Office the appellant commented, “The FAC have not fully and correctly interpreted my request therefore I cannot be assured that all information falling within the scope of my request has been identified. The decision maker is mistaken in his view that records relating to ongoing development are not covered by the Regulations. The FAC are currently applying timeframes for parties to make submissions. My request would cover information on how these timeframes were developed and are applied. There is a system currently in place but there is no publicly available information to explain what this process is .”
19. On review of the wording of the appellant’s request, I note that the appellant did not specifically request an approved, final procedure but a copy of the FAC procedure more generally.
20. Whilst the FAC has sought to refuse this element of the request under 7(5), it is clear it from its response that it has not considered those procedures not held in an approved and final form. Further, the FAC does not specifically confirm, that it does not hold information relating to the FAC procedure as requested by the appellant “Information related to the development (and modification) of the timeframes applied by the FAC in respect of allowing parties to an appeal to make submissions in response to DAFM's Statement of Facts (either directly or subsequently) ”. I have reviewed the ‘Admin processing of submission’ document provided by the FAC to this Office, and its contents would indicate that information relating to the FAC procedure does exist. This serves to undermine and cast sufficient doubt on its assertion that no information exists in relation to Item 1 of the appellant’s request.
21. To support its contention that it does not hold an approved, final procedure, the FAC confirms that formal procedures “are being developed ” and submits that this ongoing development does not create a releasable record. As a result, the FAC contends that there are no records available for release at this time.
22. The appellant in his request specifically seeks information related to the “development (and modification) of the timeframes applied by the FAC in allowing parties to an appeal to make submissions .” Whilst it is noted from the FAC submission that the formal procedures are under development and not approved or finalised to date, I am of the view that in the circumstances where a procedure is under “ongoing development ”, it is reasonable to assume that some information relating to its development and related deliberations exists and is held by the FAC, and may fall within scope of Item 1 of the appellant’s request.
23. Further, there is no evidence presented in the FAC’s submissions that any searches were undertaken by the FAC regarding the appellant’s Item 1 request. Given the FAC’s reliance on there being no approved, final procedures held by it, and its view that ongoing development does not create a releasable record, it is possible that no actual searches regarding Item 1 were conducted by the FAC. It is clear from the FAC’s internal review decision that searches were carried out for Items 2, 3 and 4 of the appellant’s original request. The FAC refers to “reviewing the searches undertaken and conducting further checks of the electronic file system ” also providing search terms. However, there is no evidence provided by the FAC that this search process as followed in relation to Item 1.
24. In the absence of relevant searches being conducted in for Item 1 it is not possible to ascertain in the first instance, if records relating to the FAC procedure and their ongoing development exist, and if so, whether any of the records located could be considered releasable records or not. However, based on its internal review and submission to this Office, I think it is likely that further information exists and is held by it. I say this in particular given the ongoing development of the procedures. As I have already set out, it is reasonable to expect information to exist during this process, and as evidenced by the existence of the “Admin process for submissions ” document and its contents.
25. Accordingly, I cannot find that the FAC has taken adequate steps to identify and locate all relevant environmental information held by it relating to Item 1 of the appellant’s request. In this regard, I am unable to find that article 7(5) of the AIE Regulations can be relied upon by the FAC.
26. Accordingly, I annul the FAC’s decision and require it to provide the appellant with a new internal review decision under article 11 of the AIE Regulations.
27. I remit the matter to the FAC for a fresh decision-making process to enable it to undertake searches for any additional information it may hold that may be relevant to Item 1 of the appellant’s request, and thereafter to issue a fresh internal review decision to the appellant in response to his request.
28. In reconsidering the matter afresh, should the FAC identify any relevant information and wish to refuse access that information under articles 8 or 9 of the AIE Regulations, it must fully set out its reasons for reaching its conclusions as well as, where relevant, its considerations of article 10 of the AIE Regulations, including paragraphs (3), (4), and (5).
29. Having conducted a review under article 12(5) of the AIE Regulations. I hereby annul the FAC’s decision under article 7(5) of the Regulations in this case. I direct the FAC to conduct a new internal review decision-making process on the appellant’s request.
30. 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.
______________________
Gemma Farrell
On behalf of the Commissioner for Environmental Information