Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-147247-V0M2F9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-147247-V0M2F9
Published on
Whether the Department conducted adequate searches to identify the information requested in accordance with article 7(1) of the AIE Regulations.
11 December 2024
1. On 28 December 2023, the appellant made a request to the Department under the AIE Regulations seeking the following:
“Information which informed the Minister's decision to introduce Regulation SI 445 of 2023
To include, but not restricted to;
Internal and external correspondence
Legal advice
Draft Regulations”
2. The Department did not issue an original decision within the timeframe specified in the AIE Regulations. On 29 January 2024, the appellant sought an internal review on the basis of the Department’s deemed refusal of his request.
3. On 29 February 2024, the Department issued an internal review decision in which it refused the request. The Department stated that “[…] after contact with personnel who may have access to the information [the appellant] requested, no records were found.” It stated that it was refusing the request under “article (5)”.
4. The appellant appealed to this Office on 11 March 2024. In summary, the appellant:
• contended that the Department had failed to explain what steps it had taken to try and identify the information requested in any meaningful way and argued that there was insufficient detail in the Department’s internal review decision to indicate that all reasonable steps had been undertaken to locate the information requested;
• queried which personnel the Department contacted, on what basis they were selected for contact and what information those personnel were asked to search for;
• contended that it was inconceivable that no information exists in respect of the request and argued that regulations are not amended on a whim and without some documentary trail to explain why the regulations were considered to be necessary and how they were shaped.
5. 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 Department, its decisions in this case. In addition, I have had regard to:
• 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’);
6. What follows does not make findings on each and every argument advanced but all relevant points have been considered.
7. Although the Department referred to article “(5)” in its internal review decision, it seems clear to me from the content of that decision that it intended to refer to article 7(5) of the AIE Regulations. I will proceed on that basis.
8. This review is concerned with whether the Department was justified in refusing access to information falling within the scope of the appellant’s request under article 7(5) of the AIE Regulations.
9. 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. 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.
10. 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.
11. There is no evidence in the Department’s internal review decision of any searches having been conducted. Rather, the Department simply stated that “[…] after contact with personnel who may have access to the information [the appellant] requested, no records were found.” Despite the use of the word “found”, it is unclear whether any actual searches were carried out.
12. The Department did not respond to this Office’s invitation to make submissions, as contained in the email sent to it on 4 April 2024 notifying it that this Office was accepting the appellant’s application for review. That invitation to make submissions included a specific paragraph concerning cases involving “[f]urther relevant information/records and search issues”, 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.
13. Given the Department’s failure to make submissions in this case and the absence of any evidence of the searches it undertook to locate relevant information in its internal review decision, it seems at least possible that no actual searches were carried out by the Department in this case.
14. With regard to the appellant’s position that it is “inconceivable” no relevant information exists or is held by the Department concerning the decision to introduce the legislation at issue, I certainly consider it highly unlikely that no such information exists or is held by the Department. However, in the absence of any information as to any searches the Department undertook to identify relevant information, I am unable to make a finding on the matter.
15. 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 his request.
16. 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.
17. 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.
18. 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