Cinneadh
Mr F and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-140145-G8D3Y9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-140145-G8D3Y9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified under the AIE regulations in refusing the information sought.
13 November 2025
1. This appeal relates to 9 separate requests made by the appellant to which the Department provided a combined Original Decision.
2. The 9 requests were made by the appellant in May 2023 and each was given an internal DAFM reference number. The following is an outline of the range of information sought by the appellant in each request:
| AIE 23303 | A copy of any Statement of Facts provided by the Forest Service within the Department to the Forestry Appeals Committee during April 2023 and any related correspondence, internal or external. |
| AIE 23304 | A copy of all Replanting Orders (Section 26 Forestry Act (2014)) served to date in 2023. |
| AIE 23305 | All information on Red and Amber Infringements of Felling Licences under the Forest Services Escalation Framework during April 2023 consistent with the DAFM document Harvesting Inspections of Felling Licences (November 2022). |
| AIE 23306 | The date of all post licence inspections carried out in April 2023 by the Department, in relation to the Coillte felling licences. All post licence inspection reports produced/completed in April 2023 by the Department, to include reports based on inspections that were carried out prior to April 2023. The information to include any relevant correspondence and subsequent environmental information. |
| AIE 23307 | Information on all licence extensions (a) applied for and (b) granted by the Department (all schemes) during April 2023. |
| AIE 23309 | Information on all commencement and completion notices (formal or informal, including any material changes) received by the Department from the licensee or their representative in relation to forestry licences/ approvals (all Schemes) during April 2023 to date. |
| AIE 23310 | The name of the certifying Inspector for all Forestry Licences issued during April 2023. |
| AIE 23311 | Information on all Alleged Illegal Roads & Alleged Illegal Felling Incidents reported during April 2023. Information on all Alleged Illegal Roads & Alleged Illegal Felling Incidents investigated during April 2023. |
| AIE 23320 | Post licence issue information and any other information in relation to TFL00453420. |
3. On 30 May 2023 the Department issued its Original Decision and stated the following as the basis for combining the 9 AIE requests:
“I have made a decision on nine (9) of your requests received on Friday 05 May 2023 through to Tuesday 09 May 2023, inclusive. Having considered the temporal grounds of requests, I have decided to combine these requests in order to alleviate the administrative burden of the Departments administrative staff, operational personnel, and any subject matter experts who may be required to assist with these AIE requests. These requests have been combined on temporal lines as stated in Office of the Commissioner of Environmental Information decision OCE-120546L8F1K3 where the appellant sent multiple communications to Coillte, the practical implication is that some of these separate communications may reasonably be considered to constitute a single request, or a smaller number of requests. This could be done by combining communications on thematic or temporal lines.”
4. The Department granted access to records on AIE 23 305, AIE 23 306, AIE 23 307 and AIE 23 310. It part granted records on the remaining five – AIE 23 303, AIE 23 304, AIE 23 309, AIE 23 311 and AIE 23 320 and cited article 8(a)(i) of the AIE Regulations as the legislative basis for the redactions applied to the information. In relation to AIE 23 311, some information was also withheld under article 9(1)(b).
5. On 31 May 2023, the appellant requested an Internal Review of the Department’s decision.
6. On 27 June 2023, the Department issued its Internal Review Decision to the appellant. The Department affirmed its decision on AIE 23 303, AIE 23 304, AIE 23 309, AIE 23 311 and varied its decision on AIE 23 310 and AIE 23 320 and released further records. The Department did not include AIE 23 305, AIE 23 306 and AIE 23 310 in its Internal Review Decision“…as your request has not been refused under article 7, in whole or in part, an internal review will not be conducted for these AIE requests.”
7. The appellant appealed to this office on 3 July 2023.
8. On 10 July 2023, the appellant provided a preliminary submission to this office outlining his current position on the 9 AIE requests noting that AIE 23 304 and AIE 23 305 could be removed from this office’s examination of the appeal.
9. On 27 August 2023, the Department provided this office with its submissions which provided further detail on how it examined each AIE request included in its Internal Review Decision.
10. Following a recent review of all active OCEI appeals relating to decisions of the Department, OCEI Investigators engaged with staff of the AIE unit of the Department to discuss appeals where, following examination of the case file, it appeared the searches undertaken may not have been sufficient or records may have been withheld without adequate reasoning for relevant decisions having been provided to the appellant at original or internal review decision stage. The Department acknowledged that it may hold further environmental information within scope of the requests which should be released to the appellant and has agreed to re-examine each of the remaining 7 requests in full.
11. I am directed by the Commissioner for Environmental Information to carry out a review of these appeals under article 12(5) of the AIE Regulations. In carrying out my review, 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’).
12. In accordance with article 12(5) of the AIE Regulations, the role of this Office in each case is to review the Department’s internal review decision and to affirm, annul or vary it.
13. 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:
14. “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.”
15. 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.
16. Article 8(a)(i) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law. This provision seeks to transpose Article 4(2)(f) of the AIE Directive, which in turn is based on Article 4(4)(f) of the Aarhus Convention. Article 8(a)(i) must also be read alongside article 10 of the AIE Regulations.
17. Article 9(1)(b) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries).
18. This provision seeks to transpose Article 4(2)(c) of the AIE Directive, which in turn is based on Article 4(4)(c) of the Aarhus Convention. Article 4(2)(c) of the AIE Directive provides that Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature.
19. Article 9(1)(b) must be read alongside article 10 of the AIE Regulations. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
20. The wording of article 9(1)(b) of the AIE Regulations makes it clear that there must be some adverse effect on the course of justice in order for the exception to apply. Accordingly, when relying on article 9(1)(b) the public authority must set out the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the course of justice (see C-619/19 Land Baden-Württemberg v DR). The risk of the course of justice being undermined must be reasonably foreseeable and not purely hypothetical.
21. Having carried out a review of this appeal, I consider that it is appropriate at this time to annul the decision in relation to the 7 requests made by the appellant which formed the basis of this appeal and require the Department to provide the appellant with a new internal review decision in respect of each request.
22. I note there may be circumstances where it is acceptable for a public authority to combine relevant AIE requests along temporal lines in an effort to streamline the administrative process, however it is not clear to me that there was any administrative benefit from combining the requests in this instance. The Department should carefully consider whether it is necessary or appropriate to do so in future. I will note that the diverse subject matter of the requests in this instance would seem to make separate decisions more appropriate.
23. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision in each of the 7 AIE requests which were the subject of this appeal and detailed here:
I. AIE 23 303
II. AIE 23 306
III. AIE 23 307
IV. AIE 23 309
V. AIE 23 310
VI. AIE 23 311
VII. AIE 23 320
24. The Department should now provide the appellant with a new internal review decision for each of the 7 requests listed above. In reviewing each request, the Department should carefully consider its obligations under the AIE Regulations and ensure that the appellant is provided with fully reasoned decisions in all cases.
25. 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