Cinneadh
Mr X and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146830-L2P0R5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146830-L2P0R5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department provided the appellant with all relevant information in accordance with article 7(1) of the AIE Regulations and whether the Department established that it did not hold any further information in accordance with article 7(5) of the AIE Regulations
1. The appellant made a request to the Department on 27 November 2021 for the following:
“All information relating to the development of the Risk Analysis process which determines whether a Forestry related application receives Field & Desk or a Desk Only Inspection. To include; Methodology – all revisions Interpretation and Guidance Documentation – all revisions Correspondence Circulars I request that the information is provided in an electronic format as soon as is possible.”
2. An internal review decision dated 13 January 2022, refusing the appellant’s request, was issued on 25 January 2022. The appellant appealed to this Office on 17 January 2022. By decision dated 8 December 2023, this Office annulled the Department’s decision and remitted the matter to the Department to carry out a fresh decision-making process.
3. Following remittal of the matter, a decision dated 4 January 2024 was issued by the Department refusing the appellant’s request on the basis that the public interest was not served by disclosure. The appellant requested an internal review of this decision on 5 January 2024. An internal review decision was issued on 1 February 2024, reversing the original decision and granting the appellant’s request. Two records falling within the scope of appellant’s request were attached with the decision and sent to the appellant. The appellant stated that he was not satisfied adequate searches were carried out to identify all relevant material and that he had not been provided with all relevant documents within the scope of his request.
4. The appellant appealed to my Office on 28 February 2024.
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. 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 accordance with article 12(5) of the AIE Regulations, my role is to review the Department’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Department to make available environmental information to the appellant.
8. 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 further information relevant to the request is held by the Department
9. On 1 February 2024, the Department provided the appellant with the following two records:
• A three-page document relating to “risk analysis criteria”
• A one-page document relating to “felling risk criteria” listing the criteria that Coillte “takes account of the following risk criteria when deciding on harvesting site inspections”.
10. By email dated 28 February 2024 to this Office, the appellant outlined that he was not satisfied that all information falling within the scope of his request had been provided and that all reasonable steps had been taken to identify relevant information falling within the scope of his request. Furthermore, he stated that no context to the information was provided, such as, dates. He said no correspondence or circulars were provided either. Specifically, in relation to “Risk Analysis Selection Criteria”, he stated that no information was provided on “mandatory inspection length threshold”, despite this threshold being referred to in relation to these criteria. Similarly, in relation to “Felling Risk Analysis”, “weighed score” is referred to in the record provided but he stated that “no information has been provided regarding how the weighed score is applied to determine whether a Coillte site is inspected or not.”
11. In the internal review decision of 1 February 2024, the Department stated that the records relevant to the appellant’s request had been located by the following means:
“Searches of the departmental databases such as shared drive and edocs were made. The information requested would not be found on Iforis, FLV or by way of an Apex report. Enquiries were made with [named] Inspectors.”
12. Further submissions were provided by the Department on 17 June 2025. In support of its contention that all documents coming within the scope of the request had been provided to the appellant, the Department provided a detailed explanation as to how it is determined whether a “field and desk” or “desk only” inspection is carried out.
13. The appellant responded stating that his request concerns information on how the “risk analysis process” was developed as opposed to information on what factors determine whether a “field and desk” or “desk only” inspection is undertaken.
14. The Department contended that this was an expansion the scope of the request and that details in the appeals submitted by the appellant supported the interpretation of the request it had applied. It said, however, that the following submission may be of assistance in relation to information on how the process was developed:
“Based on subject matter experts experience on conducting inspections and the risks posed, the risks were put together in one document for ease of reference. There is no formalised risk analysis process for deciding to field inspect.
Additionally, Irelands Forest Strategy Implementation Plan (Forest Strategy Implementation Plan including the Forestry Programme 2023-2027) may be of assistance. It provides the reader with a good overview of how sites are assessed and the risks that are considered. Point 2.4 outlines how inspectors conduct their assessments and the factors that they must consider before making a final assessment. All of these factors contribute to risks that an inspector may need to consider and as advised, for administrative purposes was put into one document.”
15. In this case, there is a dispute between the parties as to the scope of the request and the information that is in fact being requested by the appellant. The appellant sought:
“All information relating to the development of the Risk Analysis process which determines whether a Forestry related application receives Field & Desk or a Desk Only Inspection.” [emphasis added]
16. The Department appears to have interpreted this as a request for information on what determines whether a “field and desk” or “desk inspection only” is carried out. The appellant states “the crux of my request is for information which informed the Risk Analysis process. It is incidental to my request that an Inspector may be able to use their judgement to also trigger an inspection. DAFM have not provided information that supports the development of the documents concerned. They have basically tried to distract from the substance of my request.”
17. I am satisfied, having reviewed the wording of the request, information sought by the appellant relates to information on how the risk analysis process was developed as opposed to what factors were ultimately incorporated into the risk analysis to determine whether a “field and desk” or “desk only” inspection is carried out. I am, therefore, not satisfied that the Department has interpreted the scope correctly and searched for information that, in fact, is relevant to this request.
18. For the avoidance of doubt and in relation to the searches actually carried out by the Department, 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”.
19. 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. It is not normally this Office’s function to search for environmental information.
20. 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 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.
21. It is widely accepted that the duty to give reasons arises not only by virtue of the AIE Regulations and Directive but that it is recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed.
22. As mentioned, in its internal review decision of 1 February, the Department stated that searches of “departmental databases such as shared drive and edocs” were carried out and the information requested would not found be on “Iforis, FLV or by way of an Apex report”.
23. No explanation was provided, however, as to how the searches were carried out; whether they were carried out by name or by keyword or other method. Furthermore, an overall picture in relation to what specific departmental databases or the areas of the organisation to which the databases searched related has not been provided.
24. While initials and surnames of inspectors consulted in connection with the search have been provided, it is unclear, however, what specific positions these individuals hold and how or why they might hold relevant information or whether there are any other individuals in the Department who might hold relevant information. As such, 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 has not been provided.
25. No description of the searches carried out to cover the possibility of misfiled or misplaced records has been provided. Moreover, no 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 have been provided.
26. In light of all the foregoing, I find that the Department did not take all reasonable steps to identify and locate the requested information relevant to the appellant’s request.
27. Accordingly, it is my view that the most appropriate course of action to take in this case is to remit the matter to the Department for a fresh decision-making process to enable it to undertake searches for any information it may hold that may be relevant to the request and, thereafter, to issue a fresh internal review decision to the appellant in response to his request. Should any confusion remain relating to the scope of the request, the Department should consult with the appellant regarding same.
28. Having regard to the above, I cannot find that the Department has taken adequate steps to identify and locate all relevant environmental information held by it. As such, I am unable to find that article 7(5) of the AIE Regulations can be relied upon by the Department.
29. Accordingly, I annul the decision of the Department in its entirety and direct it to consider the appellant’s request afresh and make a new internal review decision in accordance with the provisions of the AIE Regulations, and in particular the requirement to take adequate steps to identify and locate all environmental information held by it within the scope of the request.
30. 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