Decision
Mr. X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-148946-N2L5J5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-148946-N2L5J5
Published on
Whether the Department has established that it did not hold information in accordance with article 7(5) of the AIE Regulations
1. The request arose following a query made by the appellant to a named Forestry Inspector, in relation to certification of a specific felling license. The Forestry Inspector, in correspondence dated 23 February 2022 to the Registered Forester, advised that the issuing of the license was held up by the lack an Environmental Protection Agency (EPA) water quality status, assigned to a relevant waterbody. The felling license subsequently issued on 12 April 2022.
2. On 07 March 2024, the appellant requested information, from the Department of Agriculture, Food and the Marine (the Department) under the AIE Regulations seeking access to the following:
Can you please indicate the date after the 23-2-22 when you received or became aware of a formal EPA Status for the YELLOW (BALLINAMORE)_020 which enabled you to certify this licence and the means by which you became aware of the Status. You can treat this as an AIE request if necessary.
Also, can you confirm whether you responded to concerns raised that there was no Site Notice in place during felling, extraction and haulage operation.
3. On 04 April 2024 the Department refused the request on the basis that records relating to the information sought “do not exist” as the email that may have been sent at the time was “not saved and has since been deleted in line with DAFM’s retention policy.”
4. On 04 April 2024 the appellant submitted a request for an internal review of the decision, stating that the Department “…failed to demonstrate that all reasonable steps have been taken to identify the information requested.” The appellant also raised a number of queries regarding the searches conducted.
5. On 01 May 2024, the Department issued an internal review decision affirming the original decision. The Department identified that that “further enquiries” were made with the named Inspector who “confirmed the email was received by him” from a named colleague, “who is no longer an employee” of the specific department. It was also stated that the named Inspector “did not save this email” and that “he was the only recipient of this email.”
6. It was further stated that the named Inspector “conducted a key word search and a manual search through emails for the period in question. He also searched folders on his PC.” A search of “iforis using the TFL number was also conducted which returned no records relevant…” and a “search of edocs and shared areas using key words” from the appellant’s questions was also conduction and “no records relevant” to the appellant’s questions were returned.
7. On 13 May 2024 the appellant submitted an appeal to this Office which included preliminary submissions in support of the appeal, together with a number of additional documents and materials to support his appeal.
8. I am directed by the Commissioner to conduct a review of this appeal. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to correspondence between the Department and the appellant and I have considered the submissions made by the appellant to this Office 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’).
9. What follows does not comment or 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 internal review decision and to affirm, annul or vary it.
11. The scope of this review is to determine whether the Department was 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.
12. While I continue to acknowledge that the significant volume of AIE requests in relation to forestry issues presents a significant administration challenge to the Department, the Department must continue to be mindful of its duty to provide adequate reasons in first instance decisions where an AIE request is being refused. Decision makers must be supported in their role and receive adequate training, in addition to ensuring relevant units have the necessary resources to allow the Department to meet its statutory obligations with regard to AIE requests. Relevant staff across the Department should be reminded of their responsibilities under the AIE regulations, particularly with regard to carrying out adequate searches, communicating details of these searches in relevant decisions, and the duty to give reasons for their decisions. I continue to encourage the Department to be proactive in dissemination of frequently requested material through its open data portal or any other means available in an effort to reduce requests and subsequent appeals.
13. 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 13 May 2024 with observations in support of his position, namely that he is not satisfied all reasonable steps have been taken to identify the information that falls within the scope of his request. 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.
14. This appeal was accepted by this Office on 13 May 2024, and the Department was provided with an opportunity to make submissions on that date. No response to this invitation was received. A further request for submissions issued to the Department on 25 February 2025, in which the Department was asked to provide full and complete details of the steps and searches it had undertaken, along with and amongst other things the following:
• details of its record management, retention, and disposal policies, in respect of the information sought in this case;
• details of consultation with organisation IT department/outline of any attempts to retrieve the deleted information;
• details of guideline, practices, procedures and arrangements in relation to the storage, archiving, retention and destruction of the email accounts of former employees;
• details of the search terms used and any particular folders searched
15. No response was received to this request, or to reminder correspondence which issued on 19 March 2025.
16. 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”.
17. 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.
18. 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.
19. Article 7(5) of the AIE regulations allows a 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, amongst other things, provide evidence that it carried out adequate searches for the environmental information requested. 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.
20. 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.
21. In the Departments original decision dated 04 April 2024, the Department stated that it contacted the relevant Inspector who “believes that an email may have been sent at the time but this email was not saved and has since been deleted in line with DAFM’s retention policy. He has conducted searches of his mailbox and also searched any relevant folders he may have.” The folders searched were not identified and key words used in respect of this search were not provided. The original decision did not provide sufficient information with regard to the Department’s email retention policy, for example an extract from the policy.
22. The internal review decision dated, 01 May 2024, stated that further enquiries were made with the previously named Inspector who confirmed the email was received by a named colleague “who is no longer an employee of this department.” the named Inspector “did not save this email” and “he was the only recipient of this email.”
23. The Department also stated the following:
• that a key word search, a manual search through emails of the relevant period and a search of folders on the PC of the named Inspector were also performed.
• A search of iforis using the TFL number was also conducted which returned no relevant records;
• A search of edocs and shared areas using key words was also conducted, which returned no relevant records.
24. Whilst it is acknowledged that the Department provided some details regarding searches having being carried out, notwithstanding queries from this Office no information was provided of the key words used in the searches, the particular folders searched or information regarding the email retention/deletion policy. No information was provided as to whether it was possible to carry out searches of the former employee’s email account. The Department did not provide any information in respect of what attempts, if any, were made to retrieve the deleted information or provide an explanation as to why retrieval was not possible. Given this, I find that the Department did not take all adequate steps to identify and locate the requested information relevant to the appellant’s request.
25. The Department did not engage with this Office during the course of this appeal. 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, having regard to my comments set out above.
26. 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.
27. Accordingly, I annul the decision of the Department in its entirety and direct it to issue 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.
28. 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