Decision
Mr. Z and The Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-157292-J6F7W1
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-157292-J6F7W1
Published on
Whether the Department has established that it did not hold information coming within the scope of the appellant’s request, in accordance with article 7(5) of the AIE Regulations
19 February 2026
1. On 30 October 2024, the appellant submitted a request to the Department seeking access to the following in relation to two felling licences, KY03-FL0210 and KY03-FL0211;
“Information which informed the Minister's decision for not including the following recommendation of the conservation authority for the Special Protection Area as part of the licence.
" As the site occurs within a Hen Harrier SPA a minimum of 15% of the restocked site should consist of open space suitable for foraging for the species."
There is no reasoning provided in any of the project documentation”.
2. On 27 November 2024, the Department issued its decision refusing the request as no records exist. The Department stated:
“DAFM currently implement procedures in relation to the Hen Harrier which have been agreed with the NPWS and described in the 2015 publication ‘Hen Harrier Conservation and the Forestry Sector in Ireland’ with later amendment. These procedures focus on disturbance operations within so-called ‘Red Areas’ during the Hen Harrier breeding season, 1st March to 15th August, inclusive. The requirement for 15% open space is set out in DAFM’s Forestry Programme 2023 – 2027 and refers to afforestation and not replanting after clearfell”.
3. On 27 November 2024, the appellant sought an internal review of the Department’s decision.
4. On 17 December 2024, the Department issued its internal review decision and in doing so affirmed the original decision.
5. On 24 December 2024, the appellant appealed to my Office. Resulting from that appeal this Office published a decision, dated 28 January 2024, in relation to OCE-154894-B8L4P2 , which is available on our website, www.ocei.ie . This decision directed the Department to undertake a new internal review decision.
6. On 18 February 2025, the Department issued its new internal review decision and affirmed the original decision.
7. On 11 March 2025, the appellant appealed to my Office.
8. 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. 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’).
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 the request under article 7 (5) of the AIE Regulations on the grounds that no information relevant to the request is held by the Department.
12. 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”.
13. 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.
14. 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, among other things, provide evidence that it carried out adequate searches for the environmental information requested.
15. The Department detailed the searches undertaken in its fresh internal review dated 18 February 2025, stating:
(i) “I reviewed all searches executed with the original decision and original internal review.
(ii) A searching email was sent to subject matter expert … (Forestry inspector grade 2) with the entirety of the scope of the request.
(iii) A searching email was sent to subject matter expert … (Forestry inspector grade 1).
(iv) The above statement was returned by the subject matter experts and submitted to the requester (with a link to record(s).
(v) A new searching email to subject matter expert [Named Forestry inspector grade 2] resulted with a reply of an email inbox search with the search words “Hen Harrier”, “NPWS” and “15%” – no records returned in relation to the scope of your request.
(vi) A new searching email to [Named Forestry inspector grade 1] resulted in a NIL response.”
“DAFM currently implement procedures in relation to the Hen Harrier which have been agreed with the NPWS and described in the 2015 publication ‘Hen Harrier Conservation and the Forestry Sector in Ireland’ with later amendment. These procedures focus on disturbance operations within so-called ‘Red Areas’ during the Hen Harrier breeding season, 1st March to 15th August, inclusive. The requirement for 15% open space is set out in DAFM’s Forestry Programme 2023 – 2027 and refers to afforestation and not replanting after clearfell .”
The appellant submits the Department failed to detail the searches undertaken by a named Forestry inspector (grade 1) and asserts the key terms searched, ‘Hen Harrier’, ‘NPWS’ and ‘15%’ must have resulted in matches and queried how the matches were assessed to confirm no records exist. In a submission to this Office the appellant queried "Why was the certifying Inspector and the Ecologist who carried out the Appropriate Assessment of the application not contacted to see if they held any records ”.
16. The Department have confirmed to this Office that the certifying inspector and the ecologist were contacted as part of the search and no relevant records were identified. The appellant has submitted a very specific request for information which informed the Minister’s decision for not including a recommendation from the National Parks and Wildlife Services (NPWS) in relation to felling licences, KY03-FL0210 and KY03-FL0211.
17. The records which are published by the Department on the Forestry Licence Viewer , in relation to each of the felling licenses KY03-FL0210 and KY03-FL0211, contain an email from NPWS which states;
“As the site occurs within a Hen Harrier SPA a minimum of 15% of the restocked site should consist of open space suitable for foraging for the species .”
The Department have outlined that consideration is given to all referral replies and third-party submissions received as part of the application assessment process. The Department notes there is no obligation “to include observations or comments from referral bodies into the final Licence document as conditions ”.
18. The Department submits “The requirement for 15% open space is set out in DAFM’s Forestry Programme 2023 – 2027 and refers to afforestation and not replanting after clearfell.” The request submitted by the appellant was specifically in relation to licences KY03-FL0210 and KY03-FL0211, both of which denote the harvest type as ‘Clearfell’. The Department submit they hold no records relating to the appellant’s request. As the request specifically relates to licences KY03-FL0210 and KY03-FL0211, and the Department have confirmed these are ‘Clearfell’ licences the recommendation from the NPWS is not applicable to theses licence. Taking into account this explanation, alongside the search details provided, I am persuaded that adequate searches have been carried out and that the Department were justified in effectively refusing this request under article 7(5) on the basis that no records are held by it.
19. It is important to note that where a public authority refuses a request for records under article 7(5) of the AIE Regulations, the question this Office must consider is whether the public authority has taken all reasonable steps to ascertain the whereabouts of relevant records. The Regulations do not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found, or, indeed, may have been destroyed in line with the body’s records management policies. It is also important to note that the Commissioner does not generally expect public authorities to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects a public authorises explanation of why a record does not exist. The test set out in article 7 (5) of the AIE Regulations is whether the public authority has taken all reasonable steps to locate the record(s) sought.
20. I note the appellants concerns regarding the lack of specific details of the searches conducted by a named Forestry inspector (grade 1) but given the specificity of the request , the searches detailed by the Department, and the explanation provided by the Department, I am satisfied the Department have demonstrated they have taken all reasonable steps to identify relevant records.
21. I hold the view that the searches conducted by the Department were appropriate and reasonable in the circumstances. I am satisfied that the Department has taken sufficient steps to determine that it does not hold environmental information relevant to the appellant’s request and accordingly was justified in refusing the request based on article 7 (5) of the AIE regulations.
22. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department’s 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