Cinneadh
Mr. X and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-152995-B4W6Q2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-152995-B4W6Q2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department had taken sufficient steps to identify and locate all relevant environmental information within the scope of the appellant’s request in accordance with article 7(5) of the AIE Regulations.
24 February 2026
1. On 17 October 2022, the appellant wrote to the Department of Agriculture, Food and the Marine (the Department) requesting that the following information:
• All information relating to any plans by FS-DAFM to review the operability and effectiveness of the Forest Licence Viewer.
• All reports and complaints regarding issues with the operability and effectiveness of the Forest Licence Viewer.”
2. The Department responded to the appellant on 3 November 2022, refusing access to the information on the grounds that“the request does not meet the definition of ‘environmental information’ as set out in article 3(1) of the AIE Regulations” . By way of explanation, the Department stated that“While the FLV contains environmental information, it, in itself is not environmental information. Therefore, the functionality of this database is not considered to fall within the scope of environmental information as set down by the legislation.”
3.On the same day the appellant sought an internal review of the Department’s decision submitting that the Department “has not provided any reasoning as is required under Article 7(4) of the Regulations.”
4. The Department issued its internal review decision on 28 November 2022. The internal review affirmed the original decision, on the basis that“[t]echnical information on the operationality of the Forestry Licence Viewer is not environmental information for the purposes of the AIE legislation, namely Article 3.”
5. The appellant brought an appeal to this Office on 28 November 2022.
6. The Commissioner issued his decision on 13 December 2023, wherein he affirmed that the information requested by the appellant did fall within the definition of ‘environmental information’ and therefore, searches should be carried out. The Commissioner directed that a new internal review process be carried out, in accordance with article 7(5) of the AIE Regulations.
7. The appellant brought a second appeal to this Office on 27 February 2024.
8. On 27 September 2024, the Commissioner annulled the internal decision of the Department, on the basis that it had not provided the appellant with details of its searches. The Commissioner directed that a new internal review process be carried out, in accordance with article 7(5) of the AIE Regulations. The new internal review was issued to the appellant on 17 October 2024.
9. The appellant brought a third appeal to this Office on 17 October 2024.
10. 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’).
11. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
12. In accordance with article 12(5) of the AIE Regulations, the role of the Commissioner is to review a public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
13. The scope of this appeal concerns whether the Department was justified in refusing access to environmental information on the grounds that no further information was held by or for the authority concerned in the meaning of article 7(5) of the Regulations.
14. A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of this decision. This approach has been endorsed by the decision of the High Court in M50 Skip Hire Recycling Limited v the Commissioner for Environmental Information 2020 IEHC 430 .
15. It is clear from the comments of the Court of Appeal in Redmond & Another v Commissioner for Environmental Information & Another 2020 IECA 83 , at paragraph 51, that the nature of a review by this Office is inquisitorial, rather than adversarial in nature. The extent of the inquiry is determined by this Office and not by the parties to the appeal.
16. I am satisfied that in light of the inquisitorial and de novo nature of reviews conducted by this Office that I am entitled to have regard to the internal review decision issued by the Department on 17 October 2024.
17. 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”.
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.
18. Article 7(5) of the AIE regulations allows public authority to refuse a request if it does not hold the requested information. In order for a public authority to successfully rely on this provision, it must, among other things, provide evidence that it carried out adequate searches for the environmental information requested.
19. On 17 October 2024, the following submission was made by the appellant to this Office in relation to the new internal review decision issued by the Department:
“Although it is an improvement on the previous decision I am not satisfied that adequate searches have been undertaken and remain dissatisfied with the decision.
No details of the searches undertaken have been provided.
Individuals who have issued emails that have been provided have indicated that they have no returns. The decision lacks coherence.
I would have submitted relevant information which has not been identified. This indicates to me that the search process has not been effective.”
20. The Department in its internal review of 17 October 2024 stated its decision is to vary the previous decision, which was to refuse the appellant’s request. It attached six documents which relate to the request five of which were granted in full and one (1) of which is redacted of personal information.
21. It stated that the following individuals were contacted and carried out searches in relation to the request: the HEO of the felling section (who returned two documents), two HEOs in the AIF Section, Forestry Service (who found no information pertaining to the request), a HEO in the felling Section (who returned four documents in relation to the AIE request), and a HEO in the Forestry Approvals Section (who returned no information.
22. In its submission of 15 December 2025, the Department did not provide any new information, rather it elaborated on the points it had already set out in its internal review. It stated:
(1) “I have spoken with the IMT division to see if there were any plans in IMT to review the operability and effectiveness of the FLV in place at the date of the request (17/10/22) and they have confirmed that there was not. The licence viewer went live on the 1st December 2020 and is easy to navigate and provides transparent and easily accessible information to interested third parties on forestry licence applications gov - Forestry Licence Viewer (www.gov.ie). Four records were provided to the appellant outlining discussion around uploading additional records from the licencing sections. The Department proactively add records to the FLV to actively disseminate more information to the public on environmental matters relating to licence application.
(2) Re: (2) The Higher Executive officers (HEOs) that lead the licencing sections were asked to provide any records they could locate on reports/complaints regarding issues with the operability and effectiveness of the FLV. If an issue arose, it would be brought to the attention of the manager of each licencing section (HEOs). The issue would generally be rectified asap on a case-by-case basis. There is no official procedure for making complaints about the FLV and emails in relation to any issues/complaints were not organised or recorded in a dedicated location.
Two records were located and provided to the appellant.
During preparation of this submission, I conducted searches of our hard drives and found no additional records relating to this request. The request was made on 17/10/22, the first decision letter in this case issued on 03/11/22, with the most recent decision issuing on 17/10/24. More than 2 years have passed since the initial request and in line with our email retention policy any emails that have not been saved, have now been deleted. I acknowledge that the OCEI requested submissions in this case on 17/10/24 and I apologise for the delay in responding to your office. However, even if a submission had been provided at that time, 2 years had still elapsed on that date, and we would not have been in a better position to respond.
The appellant has stated in his appeal that “I would have submitted relevant information which has not been identified.” The appellant in this case submits a high volume of correspondence to many parts of the Forestry Division, both to shared email inboxes and to personal email inboxes about multiple different topics, with many varying topics in the subject line relating to functions of the Division.
The Head of Division recently wrote to the appellant about the volume of correspondence received from him and found that it was consistent with the Departments policy for dealing with unreasonable behaviour. This letter noted that since the start of 2025 to the date of the letter (04/09/25) the Forestry Division had received over 837 pieces of correspondence from the appellant outside of the statutory AIE/FOI process and official submissions as part of the forestry licencing public consultation process. This figure did not take account of the correspondence sent by the appellant to the Minister’s offices, whether separately or copied in the original email. This is reflective of the correspondence received from this requester on an ongoing basis. Further information, for example the subject line, would have been useful to narrow the searches for the emails to which he alludes. This may have assisted in identifying emails in which he may have had a complaint about the FLV, but unfortunately, we were not provided with any further information over the course of the 3 years of these appeals from the appellant.
As noted above, our email retention policy is 2 years, and any emails received for the timeframe of the request will now have been deleted. Therefore, I am unable to request that additional searches are undertaken in the individual sections, however searches were conducted at the time which enabled the provision of the records provided and I confirm that reasonable searches were undertaken and records found were provided.
The Forestry Division has recently published a procedure for contacting the Forestry division which should streamline correspondence received and make it easier to filter on particular topics going forward- Forestry Communication.”
23. Having carefully considered the internal review issued to the appellant on 17 October 2024 alongside its submission to this Office, I am satisfied that the Department has provided this Office with a comprehensive overview of the search process in relation to the appellant’s request. I note in his submission to this Office dated 25 October 2024, the appellant has raised a number of queries as to why he feels the searches detailed by the Department have been insufficient. I have considered these queries, but I feel it is important to stress that where a public authority effectively 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.
24. To this end, the 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. The passage of time is also relevant factor in such appeals. It is also important to note that the Commissioner does not generally expect public authorities to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects a public authorises explanation of why a record does not exist. The test set out in article 7 (5) of the AIE Regulations is whether the public authority has taken all reasonable steps to locate the record(s) sought.
25. Article 7(5) of the AIE Regulations does not require a forensic trawling exercise to be conducted by public authorities, rather a test of reasonableness and an adequate search exercise should be performed.
26. In all the circumstances, in particular the Department’s explanation regarding the location of searches undertaken and the personnel who conducted such searches, together with the number of records that have now been identified and released in full to the appellant in relation to its request, I am satisfied that it has taken sufficient steps to determine that it does not hold further environmental information relevant to the appellant’s request and accordingly was justified in refusing the request based on article 7 (5) of the AIE Regulations.
27. Finally, I would like to acknowledge the unusual circumstances of this appeal - in that this is the third decision issued in relation to this request for environmental information. It is unfortunate that adequate searches were not carried out at an earlier stage, or the level of detail provided to this Office in the correspondence from 15 December 2025 was not provided to the appellant at an earlier point. Had it been, there is the possibility it could have avoided the need for a further appeal, or at a minimum reduced the scope of the appeal.
28. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby, affirm the decision of the Department.
29. 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.
Gemma Farrell
On behalf of the Commissioner for Environmental Information