Decision
Ms. W and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-149342-B4Z8X1
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-149342-B4Z8X1
Published on
Whether the Department was justified under the AIE Regulations in refusing the information sought on the basis that no relevant records exist.
30 August 2024
1. On 28 February 2024, the appellant requested;
I. Please provide, by email, information on the dates of all meetings (including both face-to-face and virtual meetings) held in February 2024 between DAFM and Coillte. Information to include, inter alia, the dates of all: a) Routine weekly meetings held between DAFM with Coillte b) Meetings attended by the Minister of State (DAFM) with Coillte
II. Please provide, by email, a copy of the agendas and minutes (both handwritten and otherwise) for all February 2024 meetings covered by this AIE request.
III. Please provide by email, all information received by DAFM from Coillte in relation to all February 2024 meetings covered by this AIE request, whether received by DAFM prior to the scheduled meeting with Coillte or received by DAFM during the scheduled meeting with Coillte.
IV. Please provide by email, all information received by Coillte from DAFM in relation to all February 2024 meetings covered by this AIE request, whether received by Coillte prior to the scheduled meeting with DAFM or received by Coillte during the scheduled meeting with DAFM
2. On 26 March 2024 the Department responded informing the appellant that it was granting the request in full. One record was released in the form of an email thread which showed that the AIE unit of the Department had asked a relevant member of staff to address the appellants AIE request and included his reply to the unit in relation to each part of the request as follows;
Part I. (a) There are fortnightly meeting held between DAFM and Coillte. These took place on the 5th and the 19th in February 2024. There is no agenda or minutes taken by either parties for these bi-weekly meetings.
Part I. (b) no meetings took place which the staff member was aware of.
Part II. AIE 24 153 was not discussed in either of the bi-weekly meetings.
Part III. No records existed which the staff member was aware of.
Part IV. No records existed which the staff member was aware of.
3. The appellant requested an internal review on 26 March 2024.
4. The Department responded on 24 April 2024 informing the appellant that, after conducting some further searches and making enquiries with relevant inspectors within the Department it was varying its original decision and refusing the appellants request under article 7(5) of the AIE Regulations on the basis that no relevant records exist.
5. The appellant appealed to my Office on 27 May 2024. The Department were offered the opportunity to make submissions on the appeal, but no response was received.
6. I have been directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to:
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.
9. I acknowledge that the increase in AIE requests and subsequent appeals in relation to forestry issues continues to be challenging for the Department. I would encourage the Department to review its procedures for searching for environmental information, and take account of the requirement under article 5(1)(b) of the AIE Regulations for it to make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible.
10. Article 7(5) of the AIE Regulations is the relevant provision of the Regulations when a request is refused on the grounds that a public authority does not hold the information sought, as follows:
“7(5) 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.”
11. 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. 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. This Office must be satisfied that adequate steps have been taken to identify and locate relevant records, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply.
12. 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. 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.
13. On examination of this casefile I find that the reasons provided to the appellant by the Department at internal review stage were not sufficient having regard to the AIE Regulations and that the Department has not established that adequate steps were taken to identify and locate records relevant to the request. In the internal review decision which was sent to the appellant there is a reference to the AIE unit having made enquiries with inspectors within the Department who are considered to be the subject matter experts. The appellant is informed that the inspectors are not aware of any relevant records, however no details of the searches they conducted are included.
14. The Department should note that the appellant submits that two similar meetings were held between the Department and Coillte during the previous month, with both agendas and minutes made available to her under a separate AIE request, and questions why similar records were not created for the meetings which are the subject of this AIE request. In addition to this the appellant notes that 5 February 2024, the date on which the inspector advises a relevant meeting took place, was in fact a bank holiday and she has been informed by Coillte that no member of staff worked on that day. It would therefore seem unlikely that a meeting took place on that date.
15. It is clear from my review of the relevant decision-making records in this appeal that the Department’s decision-making process was not satisfactory having regard to the responsibilities placed on public authorities by the AIE Regulations. I will therefore annul the internal review decision of the Department. The Department should now issue a new internal review decision to the appellant, taking the above into account and providing details of all searches carried out to locate records which may be within scope of the original AIE request.
16. Having carried out a review under article 12(5) of the AIE Regulations, I annul the internal review decision of the Department. The Department should now issue a new internal review decision to the appellant.
17. 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