Cinneadh
Ms X and Office of the Planning Regulator
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-156306-J3G2Y7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-156306-J3G2Y7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
1. On 20 December 2024, the appellant submitted an AIE request to the OPR, as follows:
“All documentation including but not limited to emails, letters, minutes of meetings, meeting notes, list of attendees at meetings between the Office of the Planning Regulator (OPR) and representatives from Telecommunications Industry Ireland (IBEC) January 2022 to date of this request.”
2. In its original decision of 7 January 2025, the OPR’s original decision maker stated that “[…] having reviewed [the appellant’s] request and undertaken a search of records, I can confirm that I did not identify any records which relate to [the appellant’s] request, therefore section 7(5) of the AIE Regulations applies to this request.” The OPR provided no details of the steps it had taken to carry searches for the information requested and provided no explanation as to why it held no information relevant to the request.
3. Following the appellant’s internal review request of 8 January 2025, the OPR issued its internal review decision on 28 January 2025, in which it affirmed its original decision. The internal review decision maker provided some broad and high-level details of the steps had taken to search for and identify relevant information.
4. The appellant’s application for a review of the OPR’s internal review decision was received by this Office on 5 February 2025.
5. 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 of Agriculture, Food and the Marine. 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’).
6. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
7. In her application for review, the appellant indicated that she was unhappy with the searches undertaken by the OPR, contending that there had been “incomplete searches – no records identified” and specifically mentioned article 7(5).
8. Accordingly, I am satisfied that the scope of this review is confined to whether the OPR has taken all reasonable steps to identify and locate environmental information within the scope of the appellant’s request.
9. It is relevant to note for the purposes of this review that TII is a constituent representative body within IBEC. From a brief review of IBEC’s website, it would appear that IBEC organises itself into specific focused sectoral “trade associations” to better represent the varied interests of its members, who come from a range of different sectors. TII is one such trade association.
10. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. It is the relevant provision to consider where the question arises as to whether the requested environmental information is “held by or for” the public authority concerned. In cases where a public authority has effectively refused a request under article 7(5), this Office must be satisfied that 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 must necessarily apply.
11. 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 AIE 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.
12. 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.
13. As mentioned above, in her application for review to this Office the appellant indicated she was of the view that the OPR had conducted incomplete searches.
14. In her submission received by this Office on 27 February 2025, the appellant made a number of arguments in support of her position that meetings between Telecommunications Industry Ireland (IBEC) (TII) and the OPR did take place and that records did exist. In particular, the appellant referred to a document she enclosed in her submission. The appellant stated that the document had been prepared by TII and entitled “Delivering impact and value to members of Telecommunications Industry Ireland (2024)”. The appellant noted that this document includes multiple references to interactions TII contends it had with the OPR.
15. The appellant stated as follows:
“[…] I refer you to this document to illustrate both the scope and role of Tll as a lobby group for the telecommunications industry and as evidence for why I believe meetings did happen and records exist. I have numbered the pages to facilitate reference.
On page 7, in the section -Stakeholder engagement, the OPR is listed among the stakeholders that Tll engaged with. The document references meetings but does not clarify with whom the meetings were held-
On page 9, in the section - TII in action for mobile, the document states - "Meeting with CEO, Office of Planning Regulator on industry planning concerns"
Therefore, it is reasonable to conclude that there was a meeting or meetings between Tll and the OPR in 2024. It is also reasonable to conclude that if such a meeting or meetings occurred in 2024 it is reasonable also to conclude that there may have been meetings in other years. Hence, the timeframe of January 2022 to date.
16. The appellant also argued that the OPR “[…] should have records/documentation regarding the meetings […]” referenced in the TII document, such as lists of attendees, agendas and other records associated with meetings. The appellant contended that it was “[…] not reasonable to presume that a key public body like the OPR would meet a key lobby organisation without any documentation/records.”
17. The appellant maintained that, for the reasons outlined in her submission, she did not believe a “comprehensive search and retrieval exercise” was conducted by the OPR and that it failed to take adequate steps to identify and locate the environmental information she requested.
18. The OPR’s decisions in this case are set out above. In its initial submission to this Office dated 27 February 2025, the OPR provided certain information concerning the steps it had taken to search for relevant information. It also set out some information about how it determined what environmental information/records were within the scope of the appellant’s request.
19. The OPR stated that it had it had received responses from “all teams confirming that no records were found” and listed the teams it consulted, as follows:
• Chief Executive
• Reviews and Examinations
• Corporate Services
• Plans Evaluation
• Research, Training and Public Awareness
20. The OPR stated that in undertaking searches, each team/directorate considered whether or not it had had engagement with representatives from TII. The OPR stated that although it did not have any direct engagement with TII, and consequently did not find any records, it did consider the fact that that TII is an IBEC representative body for the electronic communications industry in Ireland and that IBEC itself is represented on the OPR’s National Planning Knowledge Group (NPKG). The OPR explained that this group meets three times a year with the overarching objective to advise and support the OPR in delivering its statutory mandate.
21. The OPR stated it took the following steps to identify whether the records relating to the NPKG meetings fell within the scope of the request:
• reviewing relevant records, including meeting agendas, meeting minutes and correspondence to see if the contents related to TII; and,
• having identified representatives of TII as per the TII (IBEC) website, reviewing meeting agenda, meeting minutes, meeting attendees and correspondence to see if there were any relevant records between representatives of the OPR and TII.
22. The OPR stated that, having undertaken these steps, it did not identify any records or information falling within the scope of the appellant’s request. The OPR went on to detail how although it had held a “virtual roundtable” with IBEC on 8 October 2024 “neither the discussion at the meeting or the attendees related to the work of, or included representatives” from TII.
23. As already set out, the TII document contains two references to engagements between TII and the OPR. On page 7 the OPR is listed as one of the stakeholders that TII had engaged with in 2024, and on page 9 TII lists a meeting with the CEO of the OPR in relation to mobile industry planning concerns. The appellant first raised the TII document mentioned above, and arguments concerning the contents of that document, in her submission received by this Office on 27 February 2025, the same date as the OPR’s initial submission.
24. Accordingly, this Office wrote to the OPR, providing a copy of the TII document, and asking it to address whether it had been overly narrow in its approach to the scope and extent of the searches it undertook in response to the appellant’s request with regard to distinguishing between meetings with TII and meetings with IBEC proper.
25. In its’ responses dated 27 August 2025 and 5 September 2025, the OPR addressed the references contained in the TII document, the investigator’s queries regarding the manner in which it approached the scope of the request, and provided additional details as to the steps it had taken to identify environmental information relevant to the appellant’s request. I have set out the OPR’s responses in relation to the relevant issues below.
OPR Response - Page 7 of the TII document – OPR referred to in list of TII engagements with stakeholders in 2024
26. The OPR acknowledged that in light of the TII document, there was engagement between the OPR and TII which it had failed to identify. It stated that following receipt of the TII document it contacted IBEC to identify which “engagement” was referred to in the report, and IBEC confirmed that the “engagement” in question was the meeting of 8 October 2024 referenced in its first submission to this Office of 27 February 2025. The OPR stated that it had identified one record relating to this meeting during its original searches, an email calendar invitation. The OPR stated that the purpose of the roundtable meeting was “to allow IBEC an opportunity to discuss its priorities regarding critical infrastructure delivery, with no specific discussion on telecommunications.” The OPR further outlined that no TII attendees were included on the email calendar invitation and no OPR staff that attended the meeting recalled TII attendees being present. The OPR stated that given the nature of the meeting, and the persons invited to the meeting, it had concluded that the email calendar invitation to the meeting and the meeting itself were outside the scope of the appellant’s request.
27. The OPR stated that it did not prepare a “meeting note” of the roundtable because it was an external meeting hosted by IBEC. However, it explained that on foot of receipt of the TII document and IBEC’s confirmation that the meeting mentioned in same was the roundtable meeting, it carried out further searches “with a focus on whether any records related to this meeting had been missed in the original search.” The OPR said that while two of the three OPR attendees found no further relevant records, the remaining attendee located a previously unidentified record comprising an email chain regarding the meeting. It stated that the email chain record contains a full list of attendees, which includes the name of a senior executive of TII, along with an agenda prepared by the OPR. The OPR stressed that despite the fact it prepared an agenda, the meeting was an IBEC meeting and IBEC “ultimately determined the agenda”.
OPR Response – Page 9 of the TII document – “Meeting with CEO, Office of Planning Regulator on industry planning concerns”
28. The OPR stated that its Chief Executive was “asked specifically regarding engagements with TII (IBEC) and confirmed that he had no records and that he was not familiar with TII.” The OPR included an email dated 23 December 2024 from the Chief Executive stating he held no records relevant to the request and expressing uncertainty as to having even heard of TII.
The OPR’s view on its interpretation of the appellant’s request
29. In his request for focused submissions, this Office’s investigator asked the OPR to provide further details on how it carried out the “scoping” exercise described in its initial submission and to consider the possibility that it adopted an overly narrow interpretation of the scope of the information captured by the appellant’s request.
30. In response, the OPR argued that its’ understanding of the scope of the request was that it was “very specific to TII, with IBEC listed in brackets for contextual purposes i.e. confirming that TII is under the IBEC umbrella.” The OPR stated that it does not consider that this interpretation of the scope limited it to only certain types of engagements between the OPR and IBEC, as queried by the investigator. Rather, it argued, that it was intended to identify any records related to or reflecting engagement between the OPR and TII. The OPR contended that given IBEC has “almost 40 trade associations, many of which do not relate to the telecommunication sector”, it considered its interpretation of the scope as reasonable. The OPR described the wording of the request as “helpful in the context of identifying records relevant to the request” because it concluded that the requester was not seeking access to information regarding “wider IBEC/OPR engagement.” The OPR further noted that because IBEC is represented on its’ NPKG group, as already mentioned above, it considered and took steps to ascertain whether any representatives of TII attended the NPKG meeting. It also provided further details as to those steps. As set out above, the OPR stated that this search confirmed that no TII representative ever attended the NPKG meetings
Further records identified within the scope of the appellant’s request
31. As mentioned above, on foot of the contents of the TII document and IBEC’s subsequent clarifications, the OPR identified two further records as relevant to the appellant’s request: the email calendar invitation and the email chain and agenda. The OPR referred to these two records as records 1 and 2, respectively. The OPR had already identified record 1 in its original searches but had deemed it outside the scope of the request as it did not consider the meeting to concern or involve TII. The OPR stated that its failure to identify record 2, the email chain with meeting agenda, was due to human error, and was not due to an overly narrow interpretation of the scope of the request, as discussed in the previous paragraph.
32. The OPR further stated that had it had sight of the TII document at the time of the original request it would have likely engaged with IBEC to identify the engagement mentioned. The OPR stated that the only engagement it had identified between itself and TII was the roundtable meeting on 8 October 2024. The OPR stated that IBEC and TII had confirmed that this was the case.
33. The OPR indicated during the course of the review that it was amenable to releasing the two additional records to the appellant.
Further details of the steps taken by the OPR to identify environmental information relevant to the request
34. In its two responses of 27 August 2025 and 5 September 2025 respectively, the OPR also provided considerably more detail as to the steps it had undertaken to identify relevant environmental information. While I will not reproduce those details verbatim here, they included:
• Details of the OPR’s status as a “paperless” office with a “centralised cloud-based filing system” named eDocs, structured into individual directories, and how that consequently means there were “no physical centralised files” to search. The OPR confirmed that in its efforts to determine whether the roundtable meeting of 8 October 2024 was within scope “the attendees who keep physical notebooks checked these but did not identify any physical records of the meeting.”
• Confirmation that individual email searches were undertaken by numerous relevant staff members of both personal and shared email accounts, including the Chief Executive, and the names of the email accounts searched.
• Confirmation that each of the named staff referred to above undertook searches of relevant electronic files within their individual directorate on eDocs, and that a more general search of the centralised files was also undertaken using the eDocs search function, including details of the date parameters used (January 2022 to 20 December 2024)
• The OPR’s view that the remainder of the email chain (record 2) could not be located because “it appears to have been deleted as part of the normal email ‘tidy-up’” in line with the OPR’s Record Management Policy.
35. As stated above, I must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. This Office has no role in assessing how public authorities collect, maintain, and disseminate environmental information. The role of this Office concerns reviewing appeals of requests for access to environmental information within the scope of a request, which is held by or for the relevant public authority. This Office has no jurisdiction over whether or not a public authority should hold environmental information relevant to a particular AIE request.
36. The appellant’s position in this review appears to me to primarily revolve around the fact that the TII document indicates that TII had engagements with the OPR during 2024 and that the OPR has failed to identify information relevant to those engagements.
37. The OPR has provided detailed information as to the steps it has taken to identify the information it holds relevant to the request, some of which are summarised above. These steps included assessing whether certain engagements it had with IBEC could have also been engagements with TII by examining individual records for references to TII, searching email accounts, and searching its cloud-based filing system named eDocs. Furthermore, having been provided with the TII document, the OPR contacted IBEC to ascertain what the references in the TII document referred to. It also carried out further searches and found two further records, the email calendar invitation (record 1) and the email chain and agenda (record 2).
38. It is clear that the OPR and IBEC/TII had different understandings of whether meetings between the OPR and IBEC/TII were “IBEC meetings” or “TII meetings.” Given the fact that IBEC functions as an umbrella organisation, and that TII is a constituent part of that organisation, it seems reasonable to me in the particular circumstances of this case that the OPR could be unaware that a meeting it considered it held with IBEC could be later described by IBEC as a meeting with TII. On that basis, I consider that the OPR’s earlier conclusions were reached in good faith. It is particularly relevant to note not only that the OPR stated it did not have sight of the TII document until provided with a copy by this Office but also the steps the OPR took once it was aware of the contents of that document, as outlined above.
39. With regard to the question of information concerning a meeting between the Chief Executive of the OPR and TII, as referenced in the TII document, I have no reason to doubt the OPR’s statement that the Chief Executive was unable to find any such records. I consider it notable that, according to the search details information provided by the OPR to this Office, the Chief Executive himself stated during the OPR’s search process that he was unsure if he was even aware of TII’s existence.
40. The fact that, according to the OPR, IBEC and TII confirmed that the roundtable meeting on 8 October 2024 was the only engagement the OPR has had with TII, carries significant weight.
41. It is important to again 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 AIE 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 this Office does not generally expect public authorities to carry out extensive or indefinite general searches for records simply because an appellant asserts that more records should or might exist or rejects a public authority’s explanation of why a record does not exist. The test in article 7(5) is whether the public authority has taken all reasonable steps to locate the records sought.
42. In this case, I must assess whether the steps the OPR has taken to identify the information it does holds werereasonable . That is to say, I must assess whether the steps taken by the OPR meet the standard of reasonableness as it applies in this particular case. Given the details of the steps taken and the searches conducted by the OPR during the course of the review, I am satisfied the OPR has taken reasonable steps to identify all relevant information in this particular case.
43. Having considered the matter, I vary the OPR’s decision to refuse the request on the basis of article 7(5) and I direct release of the records located during the course of the review. For the reasons I have set out above, I am satisfied that I can now affirm the OPR’s decision to refuse the request in respect of any additional relevant records on the basis of article 7(5) and I consider that adequate steps have been taken to identify and locate all relevant environmental information on this occasion.
44. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I vary the OPR’s decision, and I direct release in full of the records identified during the course of this review. I affirm the OPR’s decision to refuse the request in respect of any further relevant records on the basis of article 7(5).
45. 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