Decision
Mr. A and The Department of Defence [the Department]
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144220-X0T8G5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144220-X0T8G5
Published on
Whether the Department conducted adequate searches such as to identify all information relevant to the appeal, in accordance with the requirements of article 7(5)
5 December 2025
1. On 29 August 2023, the appellant submitted a request to the Department seeking access to “a list, of :- all correspondence/documentation/pieces of paper generated, and all information known by you, that in any and all ways relate to, the inclosure of Curragh of Kildare land by you/your predecessors and/or on your behalf, including but not limited to the inclosure/s, of all Curragh land of the Curragh Racecourse and Curragh land adjacent to it, and otherwise in any way connected to same, to me to the above address.
2. On 3 October 2023, the appellant requested an internal review as no decision had issued from the Department and the requested records had not been provided.
3. On 9 October 2023, the Department acknowledged receipt of the appellants AIE request and stated, “unfortunately it is not possible to respond to your request within one month, however, we hope to have a decision to you by 31st October ”.
4. On 01 November 2023, the Department issued its decision and provided the appellant with a list which identified thirteen records.
5. On 8 December 2023, the appellant appealed to this Office.
6. I am 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 the submissions made by the appellant and the Department of Defence. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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
d. 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 therefore to determine whether the Department has taken all reasonable steps to identify the requested information.
10. The Department highlighted to this Office that it had not received the internal review request of the appellant dated the 3 October 2023 and sought clarification as to how an appeal under Article 12 was valid as the Department contends it has granted the request in full and did not receive an internal review request.
11. The AIE Regulations are clear, at article 7(2)(a), that public authorities “shall make a decision on a request…at the latest…not later than one month from the date on which [a] request is received”. Given that article 10(7) of the Regulations provides that “[w]here a decision is not notified to the applicant within the relevant period specified in article 7, a decision refusing the request shall be deemed to have been made by the public authority concerned on the date of expiry of such period .”
12. The Department did not issue an original decision within the timeframe specified in the AIE Regulations and the appellant was entitled to seek an internal review on the basis of the Department’s deemed refusal of his request. While the Department corresponded with the appellant on the 9 October 2023 and acknowledged receipt of the AIE request and informed the appellant of the requirement for additional time to process the request, this response was outside of the statutory time frame specified within the AIE regulations. Going forward, the Department should endeavour to comply with all its statutory obligations under the AIE framework including timeframes.
13. In this case, the appellant contends the Department should hold further information relevant to his 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 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. 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 (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. 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. What will be considered reasonable will vary from case to case.
16. The Department detailed the searches undertaken stating they “examined electronic and physical records held in relation to any mention of ‘enclosure’ including off-site storage facilities ”. The Department also notes “12 of the 13 items listed in the response predate the Regulations (for years 1961 to 1990) but were included to ensure complete openness in dealing with the request ”.
17. The appellant contends the Department narrowed the scope of his request by failing to include “all correspondence/documentation/pieces of paper generated, and all information known by you..”. The Department’s decision focused on “...the inclosure (sic) of Curragh of Kildare land by you/ your predecessors and/ or on your behalf, including but not limited to the inclosure/s (sic), of all Curragh Land of the Curragh Racecourse and Curragh land adjacent to it, and otherwise in any way connected to same ...". Additionally, the appellant argues the list provided cannot be a complete list of all records relating to his request. Based on the limited details provided by the Department in relation to the searches it undertook, I am not satisfied that the standard of reasonableness required by article 7(5) has been met.
18. While the Department provided the appellant with a list detailing thirteen inclosures there is no evidence of the Department conducting searches to identify records specific to each of these inclosures – particularly any correspondence/documentation or pieces of paper generated related to the same. Further, during the course of this investigation my investigator identified what appears to be evidence of further records existing as Planning Application: 043137 realignment of an approx 1.1 kilometre length of the R413, details condition 4 as;
a) “The creation of a buffer zone, which shall include earthen berms between the proposed road and the stud farm to north and north-west,
b) Fencing along the northern and western boundaries between the applicant’s lands and the stud farm to north and north-west,
c) Proposals for screen/fencing adjacent the north-eastern boundary of the proposed road…”
19. 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 be carried out. The Department should issue a new internal review decision to the appellant setting out in detail the searches undertaken.
20. While it would have been open to me to seek further submissions from the Department in respect of this case, I consider that given the time that has passed, it is likely that the Department will need to carry out new searches in respect of the information sought in this case. Due to this, I consider that it would lead to a more efficient processing of the request if the appeal was remitted back to the Department rather than additional submissions being sought at this stage. I am satisfied that the AIE regime is best served by remitting the case back to the Department in this instance.
21. If further searches identify information within the scope of the appellant’s request, then a decision on disclosure should be reached in accordance with the provisions of the AIE Regulations. If it is the case that, having taken reasonable and adequate steps to identify and retrieve information within the scope of the request, the Department remains of the view that no relevant information is held by or for it, it should advise the appellant of this and set out the steps taken by it in conducting those searches.
22. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision and direct it to provide the appellant with a new internal review decision.
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.
______________________
Gemma Farrell
On behalf of the Commissioner for Environmental Information