Decision
Mr F and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-146281-K5G6P4
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-146281-K5G6P4
Published on
Whether the Department was justified in part refusing the request under article 7(5) of the AIE Regulations
29 August 2024
1. On 10 November 2023, the appellant requested:
1. All information in relation to meeting/s between the Assistant Secretary General of DAFM and the FAC to include;
a) Pre-Meeting Correspondence
b) Agenda
c) Minutes
d) Notes taken during the meeting (including hand-written notes)
e) Post Meeting Correspondence - Matters arising
2. A copy of the Report submitted by the Chairman of the FAC to DAFM on the Review and Make-Up of the FAC
2. The Department responded on 16 November 2023, requesting that the appellant narrow the scope of his request as the Department was of the opinion that part 1 of the request was too broad. The Appellant refused to do so.
3. The Department responded to the original AIE request on 7 December 2023, granting access in full to one record requested under part 2 of the request, while refusing access to records sought under part 1 of the request under Article 7(5) of the AIE Regulations on the basis that no relevant records exist.
4. On 19 December 2023, the appellant requested an internal review, informing the Department of his belief that records do exist in relation to part 1 of his request.
5. On 16 January 2024, the Department responded with the decision maker advising the appellant that the original decision was being varied, although no records were located as a part of the internal review and an attachment was included the relevant correspondence in the form of an email from the Assistant Secretary of the Department stating that he had no standalone meetings with the FAC on this issue other than anything attended together with the Minister.
6. The appellant appealed to my Office on 13 February 2024.
7. 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 the submissions made by the appellant and the Department of Agriculture, Food
and the Marine. 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’).
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, the role of this Office is to review the public authority’s decision and to affirm, annul or vary it.
9. The scope of this review is therefore concerned with whether the Department is justified in refusing access to environmental information falling within the scope of the request on the basis that no relevant information is held by or for it.
10. While I welcome engagement between requestors and public authorities in relation to AIE requests, it is unusual that the Department would ask the appellant to narrow the scope of his AIE request and subsequently inform the appellant that no relevant records exist. This would usually only happen where a public authority is aware that a significant amount of records exist which may be within scope of an AIE request and that search, retrieval and subsequent dissemination of these records may place an unreasonable burden on the public authority.
11. Article 7(5) of the AIE Regulations is the relevant provision of the Regulations when a request is refused on the grounds that a public authority does not hold the information sought, as follows:
“7(5) 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.”
12. In cases where refusal is based on article 7(5) of the Regulations, the reasons for the conclusion that no relevant information is held by or for the public authority should be provided to the appellant. 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.
13. In dealing with cases where a public authority has effectively refused a request under article 7(5) of the AIE Regulations, this Office must be satisfied that adequate steps have been taken to identify and locate relevant records, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply.
14. Unfortunately, in this case it appears that following advice from the relevant Assistant Secretary within the Department at the time that no relevant meetings took place, no further searches were carried out prior to appeal stage. Officials may not always be able to recall every meeting they attend, which is why it is vital that adequate searches are conducted for environmental information on foot of an AIE request and that details of these searches are communicated to requestors as a part of the decision making process.
15. During the course of the investigation the appellant provided evidence to this Office which he claimed showed that a relevant meeting did take place. This was in the form of an email thread to arrange a meeting and a handwritten note which appears to be of a relevant meeting, both of which were released to the appellant as a result of a separate AIE request to another public body. The note suggests that this meeting took place in Agriculture House on 11 November 2022 and the appellant submits that environmental information within the scope of his request must have been created before, during or after this meeting.
16. Following receipt of this evidence this Office’s investigator engaged with the Department to ask that further searches be carried out with a view to finding any relevant environmental information and if possible releasing this to the appellant in an effort to find an informal solution to this appeal.
17. The Department then carried out further searches and provided evidence of this to this Office on 24 July 2024. These searches included:
a. Further contact with the relevant Assistant Secretary General who advised that he did not hold any records of the meeting and that these would be held by the Forestry Division.
b. Contact with the Office of the Minister of State who provided confirmation that the Minister was not present at the meeting.
c. Searches were carried out by the relevant Principal Officer in the Forestry Division.
18. I am satisfied that these searches were adequate in the circumstances of the case.
19. As a result of these searches three records which may be within scope of the appellant’s request were provided to this Office. The Department did not initially seek to rely on any exemptions contained in the AIE Regulations in respect of any of the records but did submit that the information contained within record 3 was outside the scope of the request. The records are as follows;
1. Chairperson Review of the Make-up and Membership of the FAC 23.09.2022
2. Note of the meeting of 11 November 2022 between DAFM and FAC
3. Email of 10/01/2023 _’Re FAC technical meeting request
20. The appellant was made aware that further information had been located, and confirmed that he wished to continue with his appeal.
21. On review of the records it appears that Record 1 as outlined above has already been released under part 2 of the original request. Record 2 is within scope and should be released to the appellant in full. Record 3 is an email thread. The emails contained in the thread were sent on the morning of 11 November 2022 and in January 2023 but do not relate to the relevant meeting and therefore are outside of the scope of this request.
22. In light of the fact that further information was located subsequent to the appellant’s appeal to this Office, I find that the searches originally carried out by the Department were not adequate, and therefore the refusal of the appellant’s request under article 7(5) of the regulations was not justified. Given the information that has now been located and the searches carried out by the Department during the course of this appeal, I am now satisfied that all relevant information has been located.
23. Having carried out a review under article 12(5) of the AIE Regulations, I annul the decision of the Department and direct release of the environmental information which is within scope of the appellant’s original request.
24. 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