Decision
Messrs Y and Forestry Appeals Committee
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-152554-N7B4S3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-152554-N7B4S3
Published on
Whether the FAC had provided environmental information and conducted adequate searches such as to identify the information requested, in accordance with article 7(1) of the AIE Regulations.
6 November 2024
1. The appeal in this case, made to the FAC on 30 July 2024, relates to a request for information concerning the system for payment of appeal fees to the FAC and the refunding of appeal fees by the same public authority, textually as follows:
“1) Information on the establishment of an online payment system for appeals made to the FAC.
“2) Information on the refunding of appeal fees in cases where licence applications are withdrawn when under appeal.
“Forestry appeals are an administrative measure which brings this request within the remit of the Regulations. The establishment of an online payment system improves access to justice as it effectively increases the appeal window and reduces the cost of making an appeal. The information requested is environmental information within the scope of the Regulations.”
2. On 29 August 2024, the FAC decision on the request comprised the following narrative:
“1) The development of the Forestry Appeal Committee Online System is progressing, and it is hoped to be available by the end of 2024.
“2) When a refund is required, it shall be made by return of the original postal order, bank draft or cheque, if possible, or by Electronic Funds Transfer.”
3. On the same day, the appellant submitted an internal review request in the following terms:
“AIE is not a Q&A process.
“Please provide the actual records which informed the response.”
4. On 26 September 2024 the FAC issued its internal review decision, affirming“the decision of the original decision maker” and repeated the text of the response it had given in its original decision.
5. On 3 October 2024, the appellant submitted an appeal to this Office on the basis that no“records have been provided. The FAC has given a short written answer as though we have asked a question when we are seeking actual records.”
6. 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 Regulations. In so doing, I have had regard to the submissions made by the appellant and the Department. 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’);
7. What follows does not make findings on each and every argument advanced but all relevant points have been considered.
8. This appeal is concerned with whether the information released can be considered to be the making available of “environmental information … held by the public authority” as required by article 7(1) of the AIE Regulations and whether the FAC has carried out adequate searches such as to identify and locate the information requested, in accordance with the implicit requirement of article 7(5) of the AIE Regulations so to do, prior to refusing to release it on the basis that it is not held by it.
9. For the benefit of the public authority in this case, I note that in its internal review decision, it appears to have transcribed (or failed to delete) a paragraph headed “Public interest test/Emissions” pertaining to an entirely different AIE decision letter that has no connection to the AIE request the subject of the current appeal. This no doubt was due to an administrative error, and I raise it here merely to draw to the attention of public authorities the importance of a proper review of AIE decisions prior to issue in order to ensure that only material relevant to a particular decision letter should issue with that decision.
10. In normal course, when information is released by public authorities on foot of an AIE request for information, this is done by the provision of copies of records that are relevant to the request. In this case, the FAC has provided a written response to each of the two questions raised by the requester in its request for information. However, as pointed out by the appellant in both its internal review request and in its appeal to this Office, respectively,“AIE is not a Q&A process” and“[N]o records have been provided. The FAC has given a short written answer as though we have asked a question when we are seeking actual records.” I concur with the appellant’s view. While sometimes it may be appropriate and useful for a public authority to provide background information or context when responding to a request, the AIE regime does not create a mechanism whereby narrative responses are provided by public authorities to specific requests for information from requesters and the FAC appears to have treated the request in this case as a query and not as an AIE request. The requirement placed on public authorities is to make available environmental information held by a public authority that is relevant to a request.
11. I find, accordingly, that the furnishing of responses provided to the appellant in this case did not constitute the release of information held by the FAC, in accordance with article 7(1) of the AIE Regulations.
12. The above said, I now turn necessarily to the matter of whether the FAC has conducted adequate searches for the information requested such as to fulfil its requirement under article 7(1) of the AIE Regulations to“make available to the applicant any environmental information, the subject of the request, held by, or for, the public authority.”
13. A prerequisite to enable a public authority to comply with this provision is evidence of adequate searches having been carried out by it for the environmental information requested.
14. There is no evidence in either of the decision letters that issued to the appellant in this case of searches having been conducted by the FAC. Indeed, there is no allusion at all to this matter in either decision letter.
15. This fact indicates to me that no actual searches were carried out by the public authority.
16. Accordingly, it is my view that the most appropriate course of action to take in this case is to remit the matter to the FAC for a fresh decision-making process to enable it to undertake a search for any information it may hold that might be relevant to the request and, thereafter, to issue a fresh decision to the appellant in response to its request.
17. There is no evidence in the decision making records that any searches for actual records were carried out by the FAC to identify and retrieve information held by it that might be relevant to the request. As noted above, the provision of a narrative response to the questions raised in the AIE request in a “Q & A” format does not align with the provision of environmental information envisaged in the AIE regime.
18. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the FAC’s decision and remit it for a further decision-making process to be undertaken to include a search for information that might be relevant to the request and a fresh decision to issue to the appellant.
19. 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