Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-110755-K1S0L2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to any further information falling within the scope of the appellant’s request on the basis that no further relevant environmental information is held by or for it
24 October 2024
1. It is evident from the correspondence provided by the parties that the appellant’s initial AIE request was revised following engagement with the Department.
2. On 21 April 2021, the appellant made the following joint Freedom of Information (FOI) and AIE request to the Department:
“On behalf of Coastal Concern Alliance, under the European Communities (Access to Information on the Environment) Regulations 2007 and Section 12 of the Freedom of Information Act 2014, I hereby request the following information which is non-personal in nature relating to designation as Natura 2000 sites 'sandbanks slightly covered by seawater all the time', EU Annexe 1 Habitat Type (1110), in Ireland.
Specifically, we request records created between 1st January 2007 and 31st December 2015 in relation to the decision-making process by which it was decided to designate the Blackwater Bank and Hempton's Turbot Bank and to not designate other east coast sandbanks. The information should include
a. all inter-departmental and all intra-departmental communications and communications with all other organisations, associations or agencies and with the European Commission.
b. information on the scientific and other factors that were taken into account when making the decisions to designate
c. other sites that were considered for designation and why were these specific sites selected for designation over and above others
d. Departments/Agencies that were consulted/became involved in the decision making process in relation to these designations”
3. The Department assigned the reference number AIE 020-2021 to the request.
4. In its original decision of 18 May 2021, the Department stated it had decided to grant the appellant’s request. It said that it some of the records had been redacted as “they contained text concerning designations other than those for Annex habitat 1110 Sandbanks, and one was refused for release on the grounds that it is publicly available on […]” the Department’s website.
5. The Department went on to state that it was currently facing “some IT issues” in accessing archived emails from the time period of the appellant’s request, and that it expected it to take a number of weeks for this issue to be resolved. The Department stated that it was of the view that the most “material” email records were available to it while processing the request and that it was unlikely that any further records falling within the scope of the appellant’s request exist. However, the Department committed to contact the appellant when the IT issues were resolved to “assess whether [the appellant required] a further search for records at that point in time.”
6. The accompanying schedule listed 29 records. The schedule indicated that 19 records were being released in full, nine records were being released in part, and one record was being refused under article 7(3)(a)(i) of the AIE Regulations on the basis that it was publicly available on the National Parks and Wildlife Service’s (NPWS) website. The schedule also indicated that the nine records released in part had been subject to redactions on the basis that parts of those records concerned other designations, other issues outside the scope of the request, or contained people’s email addresses and/or names.
7. In the time between the Department’s original decision of 18 May 2021 and the appellant’s request for an internal review of that decision on 21 June 2021, it appears the appellant and the Department engaged in a considerable level of correspondence and discussion, including an hour-long video meeting, about the information identified by the Department, the information the appellant contended should have been identified and other matters concerning the content of the information at issue.
8. The appellant wrote to the Department on 14 June 2021 stating she wished to request an internal review of the Department’s original decision, and attached documentation and correspondence containing queries she had previously raised regarding both the information released by the Department and information she believed to be outstanding. The Department responded on 17 June 2021, and informed the appellant that a fee applied to the FOI part of her joint FOI/AIE internal review request. The Department also stated that it was still preparing a response to the queries the appellant had raised and asked her to consider waiting for that response before proceeding with her internal review request.
9. On 21 June 2021, the appellant wrote to the Department asking it to proceed with her internal review request. The appellant stated that she had received the Department’s response to her queries and had received some additional information. She stated that the Department had suggested that the specific questions she was raising were better dealt with via internal review. The appellant stated that despite the efforts of the member of staff who had been engaging with her on behalf of the Department, there remained outstanding issues. The appellant provided a “not at all exhaustive” list, contending that:
• there were matters outstanding that were not explained by the information provided;
• she did not specifically raise many of these matters as she had hoped they would be explained as more information was provided;
• the Department had not addressed specific queries, e.g. the date shown in the Document Properties of record 22 had not been provided;
• the Department had not located a document referenced in record 22.
10. The appellant went on to state that “[…] even if all of the specific queries I have raised are addressed, there are still facts that require explanation, so the Internal Review seems to be the next step in the process.”
11. In its internal review decision of 9 July 2021, the Department varied its original decision, stating it was granting access in part to two additional records that “were not originally considered to meet the definition in the request.” It said that these two records consisted of internal notes of the outcome of a meeting of the European Commission and all coastal member states about the SAC network. The Department stated it was releasing the parts of the two records which concerned issues raised in the appellant’s request, and redacting those elements of the records outside the scope of the request.
12. The Department indicated that it remained unable to access archived emails and re-stated its position that the most material email records were available at the time of its original decision. It again committed to follow up with the appellant when the access issue was resolved.
13. In relation to the fact that some of the released records contained references to other documents that it had been unable to locate, the Department stated it was satisfied that “[…] every effort has been genuinely made to locate these documents without success”. The Department also noted the “[…] efforts made by the business units to explain these issues and to be transparent with regard to efforts to ‘fill the gaps’ where records have not been found.”
14. On 22 July 2021 the appellant applied to this Office for a review of the Department’s decision. The wording of the appellant’s appeal is discussed in more detail below, but, suffice it to say, it is clear that the appellant remains dissatisfied with the Department’s position on the matter.
15. I am directed by the Commissioner to conduct a review of this appeal. I have now completed this 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, and to the parties’ communications with each other, where relevant. I have also examined the contents of those records released by the Department. 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);
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
16. Given the extent of the various issues, queries, and contentions raised by the appellant in this case, it is not possible for this decision to reproduce, comment, or make findings on each and every argument advanced by either party. However, all relevant points have been carefully considered.
17. In her application for review to this Office, the appellant stated the following:
“We would like to explain more fully that, due to the fact that the information that we requested was not provided in response to our original AIE request, we submitted an additional request to:
(1) cover the period that was covered in our original request, but for which no documents were supplied and
(2) to extend the time period beyond that covered in our original request because we became aware that the designation of the sandbank sites (Habitat 1110) was not completed until 7th April 2017.
We are now in receipt of the Records provided in response to this second AIE request. However, the additional documents supplied do not fill the scientific and data gaps or explain the inconsistencies that we seek to clarify in making this application to your office.”
18. The Department assigned the reference number AIE 038-2021 to this second request referenced in the appellant’s application for review.
19. Given her view that further relevant information and records are held by the Department, it is understandable the appellant raised queries and observations in relation to the possible existence of further such information and records in her correspondence with this Office.
20. However, the appellant also raised a significant number of queries in relation to the authenticity, accuracy, format, substantive content and nature of the information released by the Department on foot of the request to which this review relates and in relation to information/records released under previous AIE and FOI requests. In the appellant’s submissions and correspondence with this Office, the appellant also appeared to question the decision making of Department staff members involved in the designation process, and directly questioned whether the Department had made deliberate attempts to withhold environmental information.
21. The appellant’s initial submission, received by this Office of 10 August 2021 and updated twice by the appellant on 23 August 2021 and again on 28 April 2022, detailed instances where the appellant contended inconsistencies arose in the contents of the records and the decision making processes of the Department in relation to the subject matter of the request.
22. The appellant further argued that this Office was obliged to investigate such matters, and contended that under the AIE Regulations, and in line with the judgement in Redmond & Anor v Commissioner for Environmental Information & Anor [2020] IECA 83 (Redmond), the Commissioner had the power “[…] to fully investigate details of the environmental information provided to the public by a public authority.”
23. For example, in one of the documents accompanying her application to this Office, the appellant identified what she described as a discrepancy in the manner in which the Department defined and/or measured the area and co-ordinates of a particular sandbank across multiple records. The appellant stated that no explanation of this discrepancy was contained within the information released by the Department.
24. Similarly, in her submission of the 22 November 2023, the appellant argued that this Office was obliged to investigate the issues concerning the origins, authenticity and date of creation of record 8, and to examine whether the Department’s actions in relation to record 8 represented a deliberate attempt to withhold information on the environment.
25. I note that in that same submission, the appellant emphasised that in raising these queries/issues, she “[…] simply accepted the offer made to me by [the original decision maker] to ask questions or express concerns” in the Department’s original decision.
26. Article 3(5) of the Directive requires Member States to ensure that “officials are required to support the public in seeking access to information” and that “the practical arrangements are defined for ensuring that the right of access to environmental information can be effectively exercised”. Article 7(1) seeks to ensure that public authorities are required “to organise the environmental information which is relevant to their functions and which is held by or for them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology, where available”. Article 7(2) provides that “the information to be made available and disseminated shall be updated as appropriate”.
27. However, the AIE Regulations do not provide me with jurisdiction to review public authorities’ compliance with articles 3(5) and 7(1) of the Directive. Article 12(5) of the Regulations permits me to do the following on receipt of an appeal of a decision of a public authority under article 11(3) of the Regulations:
(a) review the decision of the public authority,
(b) affirm, vary or annul the decision concerned, specifying the reasons for [my] decision, and
(c) where appropriate, require the public authority to make available environmental information to the applicant.
28. Accordingly, I consider that this Office has no jurisdiction to investigate the additional queries raised by the appellant.
29. Furthermore, in raising queries about the substantive content of the information and records at issue, it appears the appellant is seeking to interrogate that information by posing questions regarding the decisions, actions, views and opinions of the Department and its staff. These matters are outside the remit of this review and the jurisdiction of this Office.
30. AIE is concerned with access to environmental information held by public authorities within the meaning of the AIE Regulations, as opposed to access to records or documents. Accordingly, while generally speaking an AIE request will take the form of a request for environmental information, it is open to a requester to make an AIE request in the form of a question or series of questions seeking specified environmental information. However, in this review, my jurisdiction is limited to reviewing the internal review decision of the Department and considering the request originally made by the appellant. It is open to the appellant to make a new request to the Department for additional environmental information it holds and in the event that she is not satisfied with the outcome of that request, to appeal again to this Office.
31. As mentioned above, the Department refused access to parts of some of the records it otherwise released in full on the basis that the refused information was either outside the scope of the appellant’s request or consisted of people’s names. In correspondence with this Office dated 19 August 2021, the Department stated that:
“[…] all records that were found and that were considered to come within the scope of [the appellant]’s request were released. The only redactions that were made to records were to redact content that came outside the scope of [the appellant]’s request, or for the names of individual staff members.”
32. During the course of this review, this Office’s investigator informed the appellant that, in his view, the scope of the review was limited to whether the Department had taken all reasonable steps to search for all records/environmental information relevant to her request, in line with the requirements of article 7(5) of the AIE Regulations.
33. In her response, the appellant indicated that while her request had sought to exclude information of a personal nature, she was now of the understanding that the names of staff members of public authorities carrying out their duties should not be refused on the basis of personal information.
34. It does not appear the appellant raised any concerns about these redactions in her engagements with the Department following its original decision. Furthermore, no mention of the redactions was made by the appellant in her appeal to this Office.
35. The scope of this review is necessarily limited to the matters the appellant raised in her appeal to this Office which was received on 22 July 2021 and, to a lesser extent, the matters she raised at internal review stage. The appellant did not raise the issue of redaction of staff names in her initial appeal or in her first submissions to this Office. Accordingly, I am satisfied that the Department’s redaction of staff names in the records it released to the appellant is outside the scope of this review. Should the appellant wish to access this information, it is open to her to make a fresh AIE request to the Department. While I understand that this may be frustrating for the appellant, it is a necessary element of fair procedures that our investigation is limited to the matters raised by the appellant in their appeal of the relevant internal review decision. I would also note that in situations where a requestor does not exclude personal information from the scope of a request, a public authority must justify the redaction of any information by reference to the AIE Regulations.
36. The Department stated that on foot of the appellant’s appeal, it reviewed the records relating to her original request. It said that during this cross-checking process, a further four records were identified and released to the appellant on 18 August 2021. The Department explained that these four records had been compiled during its searches but overlooked during processing. The Department said that it was not clear how this had occurred but it may be due to different files having very similar file names or files not being labelled clearly. The Department stated it was taking steps to reduce the risk of such an oversight in future.
37. Finally, I consider it necessary to comment on the manner in which the parties have engaged with this Office and each other before and during the course of this review.
38. There is nothing before this Office to suggest that the Department has improperly or falsely withheld environmental information in response to the appellant’s request, despite any inference to the contrary within the appellant’s correspondence with this Office. While it is certainly not ideal that the Department overlooked relevant records at original and internal review stages, there is nothing to suggest it did so intentionally. Rather, it seems to me that the Department, in the significant efforts it made to assist the appellant in understanding the records and information at issue, went above and beyond the requirements on public authorities in the AIE Regulations to assist requesters.
39. I consider that the appellant’s engagements with both the Department and this Office reflect a misunderstanding of the purpose of the AIE Regulations and the AIE Directive, and the obligations on public authorities under those laws. As noted above, it is open to a requester to make an AIE request in the form of a question or series of questions seeking specified environmental information. Public authorities are obliged to provide any such specified environmental information they hold on receipt of a such an AIE request, unless they either do not hold the environmental information sought or the information sought is exempt from release under the provisions of the AIE Regulations.
40. However, that does not mean that an AIE request may be treated as a “starting” or “jumping-off” point by requesters seeking to further interrogate the subject matter of the environmental information at issue through the AIE request process. AIE requests concern access to environmental information. Under article 7 of the AIE Regulations, “Action on request”, public authorities are under no obligation to answer questions regarding the subject matter or contents of the environmental information requested, unless the information that would answer such questions is itself environmental information captured by the scope of the original AIE request. While requesters are free to ask public authorities queries on foot of receipt of environmental information under an AIE request, such queries, where they seek information outside of the information sought in the request, must be understood as being separate from the AIE request process at issue.
41. Finally, I am conscious that, at the time of her original AIE request, it appears the appellant was unfamiliar with access to information processes. It is entirely understandable that the appellant would be unacquainted with the specific requirements of the AIE regime in Ireland. However, I consider that it would be challenging for any public authority to, for example, address issues raised by a requester at internal review stage if the requester provides what is described as a “not at all exhaustive list” of issues of concern, and goes on to state that “[…] even if all of the specific queries […] raised are addressed, there are still facts that require explanation, so the Internal Review seems to be the next step in the process.”
42. Generally speaking, requesters should be as comprehensive, clear and concise as possible in their communications with public authorities. This applies to the making of AIE requests and communications following on from such requests. The scope of the environmental information sought by requesters should be clearly defined and any issues a requester has with an original decision of a public authority should be clearly communicated to the public authority in question, be confined to the environmental information requested, and put, ideally, in the form on an internal review request.
43. The environmental information a public authority is obliged to provide on foot of an AIE request is logically and necessarily limited to the environmental information actually requested and actually held by the public authority.¬¬ As set out above, the AIE process is not designed to be open-ended, and the language used by parties during that process should reflect that.
44. The scope of this review is accordingly solely concerned with whether the Department was justified in refusing access to any further information falling within the scope of the request under article 7(5).
45. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. Article 7(5) of the AIE Regulations 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. It is not normally this Office’s function to search for environmental information.
46. Given the level of detail to the parties’ submissions and correspondence in this case, they are not reproduced in full in this decision. The appellant has been provided with the relevant details of the Department’s submissions and correspondence during the course of this review, and the relevant details of the Department’s most recent correspondence will be provided to the appellant alongside this decision.
47. Two different AIE requests made by the appellant are referred to in this decision: the request at issue, assigned the reference number AIE 020-2021 by the Department, and a second request, assigned the reference number AIE 038-2021 by the Department. For the sake of clarity and to avoid confusion, where these two requests are being discussed together in this decision, the Department’s reference numbers will be used.
48. Accordingly, what follows below is a high-level summary of the parties’ positions during the course of this review.
The Department’s submissions
49. On 19 August 2021, the Department made a highly detailed initial submission to this Office regarding the steps it had taken to search for and identify information relevant to the appellant’s request. This submission included a significant amount of search details, including:
• the areas and sections within the Department that were searched for relevant information;
• the staff members who were consulted as part of the process;
• the physical locations within the Department relevant to the subject matter of the request;
• the difficulties the Department continued to experience in accessing archived emails;
• the electronic file systems searched; and
• the efforts the Department went to ascertain the dates of certain records where specific dates were missing;
50. Upon being assigned to this case, the investigator wrote to the Department to invite it to make a focused submission and provide more specific and granular information as to searches it had undertaken, such as the exact files and areas searched, the precise search terms used in electronic searches, and a description of the types of records/information that would typically be created in a case such as this. The investigator also asked the Department to provide an update as to the accessibility of archived emails, to describe the IT difficulties at issue in more detail, and to address the queries raised by the appellant where relevant to the review.
51. In response, the Department provided a detailed focused submission to this Office, in which it provided further details as to the physical and electronic searches it had undertaken. The Department stated that the issue preventing access to archived emails had not been resolved. It also stated that it considered that it had addressed all of the issues raised by the appellant “within the terms of the enquiry” and asserted it did not hold any additional files relevant to the appellant’s request.
52. A comprehensive summary of both the Department’s initial submission and its focused submission to this Office were provided to the appellant on 9 November 2023. The investigator also informed the appellant that, having considered the Department’s submissions and the explanations and details of the steps it had taken contained therein, he was of the view that the Department had taken reasonable and adequate steps to identify and locate all records falling within the scope of the appellant’s original request and consequently this review, and that therefore, in his view, article 7(5) of the AIE Regulations applied.
The appellant’s response to the Department’s submissions and the investigator’s view
53. In response, the appellant stated that she could not accept the investigator’s view, and indicated that she remained of the view that further records exist that fall within the scope of her request. The appellant contended:
“With reference to Article 7(1) of the AIE Regulations, as detailed above, documents existed in the Department that were not released. It is, therefore, not possible to conclude that ‘all reasonable steps have been taken to locate and identify all environmental information it holds’ that fall within the scope of this request. Nor can it be concluded that ‘the Department took all reasonable steps to identify and release all relevant records within the date parameters specified’.”
54. One of the main thrusts of the appellant’s response centred on the Department’s decision in her second AIE request, AIE 038-2021. She argued that the large number of records she received on foot of AIE 038-2021 was evidence that the Department’s searches in this case had been inadequate. She also made several other contentions. The appellant’s arguments as to why she believed further relevant records were held by the Department included the following:
• ####Records received “from another source”
The appellant claimed that she had been provided with “at least two records, possibly more” within the scope of her original request “from another source”;
• ####Records dated after 13 February 2013 and records received on foot of a separate AIE request to the Department
The appellant stated that she submitted AIE 038-2021 to, in her words, “address the failure [of the Department] to provide any records from after 13th February 2013” in AIE 020-2021. The appellant stated that on foot of AIE 038-2021, the Department released 117 records, 104 of which she contended fell within the dates specified in her AIE 020-2021, 1 January 2007 to 31 December 2015. The appellant stated that these records “predominantly” concerned the public consultation process for the proposed designation of sandbanks, and argued that they fell within the scope of AIE 020-2021 because public consultation is an integral part of the designation process.
The appellant cited the example of record 118, which had been released under AIE 038-2021. She stated that the first page of record 118 was the same as the single page released as record 22 in response to her AIE request in this case, but contained additional pages that were not released to her in response to AIE 020-2021. The appellant argued that record 118 was within the scope of AIE 020-2021, and that the fact that it had not been identified and released by the Department in response to that AIE request “confirms that the Department has not ‘taken all reasonable steps to search for all records relevant to [my] request, in line with the requirements of Article 7(5).’”
The appellant argued that given the existence of record 118 “[…] further interrogation appears to be required to establish the truth behind the contradictions that are evident here.”
• ####Record 25 and meeting records
The appellant noted that although record 25 consists of a thread of emails discussing a meeting to be held on 18th February 2013, the Department had not released any “agenda or meeting notes” relating to that meeting.
The Department’s clarifications
55. Having considered the appellant’s submission, this Office informed the Department about the issues raised by the appellant and asked it to address these issues by return.
56. The Department was specifically asked to provide the wording of AIE 038-2021 and to confirm whether a portion of the records released under AIE 038-2021 were also within the scope of AIE 020-2021. If some of the records released under AIE 038-2021 were indeed also within the scope of this case, the Department was asked to address several other queries, including how and why the Department had not identified these records in this case, what additional searches it had undertaken in AIE 038-2021 that it had not undertaken in AIE 020-2021, and where the additional records were identified.
57. It was also asked to address all other relevant matters raised by the appellant.
58. The Department’s provided an extremely detailed response to this Office on 5 July 2024, comprising a submission letter and 10 other supporting document, including a multi-page table in which it addressed each of the specific issues/queries/contentions raised or made by the appellant. As mentioned previously, the relevant details of this response are being provided to the appellant alongside this decision.
59. In summary, the Department stated/contended/clarified the following:
• ####Records received “from another source”
In relation to the records the appellant contended she had received “from another source”, the Department stated that it could not comment on the veracity of this claim in the absence of seeing the records to which the applicant referred. The Department stated that requesters sometimes consider that records come within the scope of their requests, when in fact they do not, because of the wording of their requests. The Department stated that this occasionally needs to be pointed out to requesters to assist “their understanding as to what records are or are not released and which records they would actually like to request.” The Department contended that its emails with the appellant about AIE 020-2021 and AIE 038-2021 demonstrated this.
• ####Records dated after 13 February 2013 and records received on foot of a separate AIE request to the Department
In relation to the absence of records dated after 13 February 2012, the Department expressed the view that where records were not found from a certain time period, and where there were no references to suggest that records should have existed from that time period, once reasonable steps had been taken to search for such records it was not its role to “hypothesise why no records were created during that time”. The Department stated that no records dated after 13 February 2012 were released under AIE 020-2021 as none were found that came within the scope of the request.
The Department stated that the appellant’s two requests, AIE 020-2021 and AIE 038-2021, were worded differently and actually concerned “[…] two distinct processes, that generated and resulted in two different sets of records.” The Department described and distinguished between these two processes as follows:
*AIE 020-2021 concerned a process of internal decision making: the collection and collation of scientific data results in the Department making an internal decision to designate a site as an SAC, according to scientific criteria. The Department stated that this process was the focus of the Department’s search for records in response to AIE 020-2021, the request at issue in this review.
*AIE-038-2021 concerned a process of public notification and appeal conducted by its Designations Unit. It stated that there is typically very little overlap in records concerning these two processes “[…] apart from a few items that were found among the Notification documents and were released under [AIE 038-2021] to provide full disclosure (e.g. Record 118).”
The Department expressed surprise at the some of the appellant’s claims and stated that it appeared that the requester had not been fully forthcoming with this Office on a number of matters. The Department stated that the appellant realised that her first request, the request at issue in this review, had not been “fully specific” during discussions with the Department and that is why the appellant had submitted the broader second request, AIE 038 -2021, deliberately including a specific reference to “the public”, in order that the notification and appeal process and additional records would come within the scope of the new request. The Department stated that the appellant had been aware that this broader second request would lead to searches for records that had not been within the scope of the request at issue, and that both the Department and the appellant fully expected that additional records would be found as a result of the broader second request.
The Department stated that only two of the records it released under AIE 038-2021, the submission to the Minister seeking approval to designate the sites, and a note from a named staff member, records 3 & 118 respectively, “may be considered relevant” to AIE 020-2021. The Department explained that record 118 had been found in the Designation Unit’s files, and acknowledged that it should have been filed in the Scientific Unit as it concerned the internal decision making process for designations. The Department said that although it did not relate to the public notification process at issue in AIE 038-2021, it was released under that request “in the interests of full disclosure”.
The Department explained that because of the differences between the scopes of the two requests, additional file locations were searched in AIE 038-2021 and an attachment record to the memo in AIE 020-2021, was found and released. The Department stated that it did not cross-check between AIE and FOI requests to see if records issued under one request may be relevant to other requests that have already been processed. The Department said that, in its’ view, it was not reasonable to expect public authorities to retrospectively examine previous requests to see if additional records should be released after the fact.
• ####Record 25 and meeting records
The Department stated that it again searched “all folders/files containing the records released under [AIE 038-2021]” and nothing was found in relation to the meeting mentioned in record 25. The Department stated that no record of this meeting was found in Designations Unit files. It said that, for the sake of completeness, it checked the files again on 4th July 2024 and no record of the meeting was found. The Department stated that it was not unknown in the civil service for meetings to occur with no official minutes being prepared or circulated afterwards.
60. The Department provided copies of email correspondence to support its position, including an email regarding AIE 038-2021 dated 31 May 2021 in which the appellant clearly acknowledged that she was making that request because AIE 020-2021 had not actually covered all of the categories of records she had expected it to, and because its’ time frame was too narrow.
61. The Department strongly refuted the appellant’s “hypothesis” that it was trying to “obstruct” anything. The Department pointed to the release of “[…] well over a hundred documents, numerous emails, video-calls and a meeting with a Minister of State […]” to demonstrate that, in its view, it had gone above and beyond in its efforts to be transparent and to satisfy the appellant.
62. The Department contended that the appellant had misrepresented the significant efforts it had made since 2021 in this case and in other AIE/FOI requests “to satisfy the requester and to fulfil both the letter and spirit of the AIE Regulations”.
63. The Department commented on its previous interactions with the appellant. It acknowledged that such issues “may not” concern this review directly, but contended “they point to a pattern of behaviour by the appellant that indicates [the appellant is] not approaching these processes with the same level of good faith as the Department.” The Department expressed the view that the appellant “has unreasonable expectations as to the steps public authorities should take to satisfy such requests.” For the purposes of this review, it is not necessary for me to comment on these assertions by the Department.
64. I have carefully considered the Department’s response of 5 July 2024 to the matters raised by the appellant, and the details of the searches undertaken by the Department contained both in that response and in its’ earlier submissions to this Office. I have also carefully considered the various arguments made by the appellant throughout the course of this review, insofar as they relate to the steps the Department took to search for and identify all records/information relevant to her request.
65. In particular, I have had regard to the wording of the appellant’s second AIE request, AIE 038-2021. Having compared the two requests, it is clear to me that the wording, and therefore the scope, of AIE 038-2021 is substantially broader than that of AIE 020-2021. In AIE 038-2021, the appellant removed several of the scope-narrowing phrases she used in AIE 020-2021, including the terms: “designation as Natura 2000 sites”, “decision-making”, “east-coast” and “when making the decisions to designate”. She also widened the time frame from 1 January 2007-31 December 2015 to 1 January 2007-8 April 2017, and added the term “and with the Irish public” to the end of the first bullet point of her request.
66. All of these changes had the effect of significantly broadening the scope of the information requested in AIE 038-2021 in comparison to AIE 020-2021. In particular, the scope of AIE 038-2021 included information on the public consultation process, which the Department described as a process distinct from its’ procedure for internally reaching a decision to designate, and which was not captured by the appellant’s request in this case.
67. The appellant’s contended that “[p]ublic consultation is an integral part of the designation process and therefore these records [the records released under AIE 038-2021 falling within the time frame of AIE 020-2021] fall within the scope of my request”. However, this contention is not supported by the Department’s explanations to this Office regarding the two separate but linked processes involved. The appellant’s previous written statements to the Department unambiguously show that she was not only aware but appeared to accept that the public consultation process was outside the scope of AIE 020-2021. As mentioned above, in an email to the Department dated 31 May 2021, the appellant stated “I am submitting this second AIE/FOI request […] because I had not specifically included a request for details of the public consultation process in relation to designations. I'm learning!”.
68. It is clear to me that, as far back as May 2021, the appellant understood and was aware that the public consultation process was outside the scope of her request in this case. In such circumstances, it is regrettable that the appellant would raise an argument in an appeal before this Office when she appears to have been aware it is not supported by the facts of the matter.
69. Given the significant differences in the scope of the two requests, of which the appellant was already very much aware, I cannot accept the appellant’s argument that the release of 117 records in AIE 038-2021, 104 of which she contends fall within the timeframe of her request in this case, indicates that the Department’s searches for relevant records/information in response to AIE 020-2021 have been inadequate.
70. I consider that the Department has adequately explained why these records were not identified in the processing of AIE 020-2021 but were later found and released in response to AIE 038-2021. I also consider that the Department has adequately addressed the other relevant matters raised by the appellant, including: attachment records or records of other matters referenced in released records; the absence of records dated after 13 February 2012; her receipt of records within the scope of AIE 020-2021 “from another source”.
71. In all of the circumstances, having regard to the totality of the Department’s submissions to this Office, and in particular in light of the details of the searches along with the other information and explanations it provided, I am satisfied that the Department has taken adequate steps to identify and locate all relevant environmental information held by it in respect of the appellant’s request.
72. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the decision of the Department, as having considered the details of the searches undertaken by the Department, I am satisfied that it has taken adequate steps to identify and locate all relevant environmental information held by it in respect of the appellant’s request.
73. 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