Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-157467-R3C9G5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department conducted adequate searches for the environmental information requested by the appellant.
30 June 2025
1. On 3 January 2025, the appellant requested the following;
“For the period 2023 - 2024 inclusive, information relating to any correspondence (all media) between the Forestry Division of DAFM and Coillte relating to dealing with requests made under the AIE Regulations .”
2. The Department issued its original decision on 30 January 2025 stating;
“My decision is to grant your request. The basis for my decision is that I have identified five records held by the Department in relation to your request. I have granted three records in full and two are part-granted with redactions .”
3. The Department partially refused the request under article 8(a)(i) of the AIE Regulations and made redactions to 2 of the 5 records released.
4. On 12 February 2025 the appellant requested an internal review of this decision on the basis that he did not believe all of the relevant subject matter experts had been contacted in relation to his request.
5. The Department issued its internal review decision on 10 March 2025 affirming its original decision.
6. The appellant appealed to my Office on 19 March 2025.
7. I am directed by the Commissioner for Environmental Information to carry out a review of these appeals under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
8. In accordance with article 12(5) of the AIE Regulations, the role of this Office in each case is to review the Department’s internal review decision and to affirm, annul or vary it.
Article 7(5)
9. 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 ”.
10. 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.
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 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. Following engagement with this office, the Department identified this appeal as being suitable for remittal in order for it to complete adequate searches and provide the appellant with a new internal review decision.
13. It appears from an initial review of the relevant decision-making records that the decision-making process was not satisfactory having regard to the responsibilities placed on public authorities by the AIE Regulations. The appellant’s original request refers to the “Forestry Division” however the decision-making records refer only to the AIE unit and 2 forestry inspectors – it is not clear that searches took place for the Forestry Division as whole.
14. During the course of the investigation the Department informed the OCEI that it had carried out further searches and identified additional records which may be within scope of the original AIE request. The Department advised that these records may be exempt from release under Article 9(1)(b) of the AIE Regulations. In addition to this, some of the records in question contain legal advice relating to the appeal of a previous decision of the Commissioner to the High Court, and therefore the Department were unsure if these records should be released to the OCEI in order to make a determination on release to the appellant.
15. Given the circumstances, the Department requested that this case be remitted to allow it to consider the most appropriate way to deal with the request and issue a new internal review decision to the appellant. As the Department effectively needs to make a first instance decision on these records, I consider that it is appropriate in the circumstances to remit the matter to the Department for a new internal review decision to be issued. This will allow the appellant to consider the reasons provided by the Department for any information they might withhold, and to make a further, reasoned, appeal to this Office if necessary.
16. I am also satisfied that this is the most efficient way to deal with this appeal. If I was to continue the review now, I would require further submissions from both parties. It is also likely that I would need to consider whether it is appropriate for the Department to provide this Office with records that contain legal advice relating to an appeal of an OCEI decision. This process would likely take some time. This decision therefore annuls the internal review decision, and the Department should now issue a new internal review decision to the appellant. The Department should include adequate reasoning to the appellant for its new internal review decision. The appellant will be able to appeal that new decision to this Office, should he require to do so.
17. Having carried out a review under article 12(5) of the AIE Regulations, I annul the decision of the Department. The Department should issue a new internal review decision.
18. 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.
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Julie O’Leary
On behalf of Commissioner for Environmental Information