Cinneadh
Mr X. and Department of Agriculture, Forestry and Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-151006-J0R4Q2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-151006-J0R4Q2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
1. On 27 May 2024, the appellant made a request to the Department for the following:
“As DAFM has failed to process 24 179 in accordance with the Regulations I am now re- submitting my request.
I wish to request under the Access to Information on the Environment Regulations, in electronic format; Information related to any consideration by FS-DAFM of the use of recycled materials for Forest Road Works under the new Forestry Programme. To be clear this includes any information related to the possibility of using recycled materials for Forest Road Works. I am aware that there may be upcoming formal discussions on this subject.
My request includes any information which precedes the discussion stage - the information that led to this becoming a topic for discussion in the first place. Somebody must have mooted the idea for it to become a subject for discussion. I am seeking the information where the basic notion of the possibility of using recycled materials was raised. The indicated discussions do not appear out of thin air.
Please provide a Schedule of Records with your decision. If no information is identified please clearly detail.”
2. On 21 June 2024, the Department issued its original decision. It stated that no records existed on the consideration of the use of recycled materials for forest road works under the new forestry programme. With regard to any information which preceded discussion of the topic, this was refused under article 9(2)(d) of the AIE Regulations, on the basis that it concerned internal communications of public authorities. It was noted that the request
was almost identical to a previous AIE request, AIE 24/179 and the conclusion reached at original decision and internal review stage for that request was that no records existed.
3. On 21 June 2024, the appellant requested an internal review of the original decision. This was issued on 2 August 2024, varying the original decision; the refusal was affirmed, but solely on the basis of article 7(5) of the AIE Regulations and article 9(2)(d) of the AIE Regulations was not invoked.
4. The appellant appealed to my Office on 6 August 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 failing to provide access to the requested material 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. In his submissions dated 6 August 2024, the appellant argued that adequate searches were not carried out by the Department under article 7(5) of the AIE Regulations. He stated that the fact article 9(2)(d) of the AIE Regulations was invoked at original decision stages suggests that records do exist. He pointed to the Department’s internal review which
stated that a named Forestry Inspector confirmed that no discussions relating to procedures for the use of recycled materials in the Forest Road Scheme took place and, as such, no records within the scope of the request exist. He contended that an overly restrictive interpretation of his request had been taken, given that his request pertained to any information on the consideration of the use of recycled materials and it was not, therefore, specifically limited to information on any discussions that may have taken place.
10. Additionally, he referred to the search term “Recycled Materials/Forest Road Recycled” which was used by the Department in seeking to retrieve the materials he sought. He said that he used the same search term in his own email box and it yielded no results whatsoever, not even for his AIE request where the subject bar contained the word “recycled”. The search term “Recycled”, however, yielded numerous results. He
contended, therefore, that search terms employed by the Department were restrictive in terms of the capacity of the search engine to identify information that may exist.
11. Furthermore, he stated that the original decision in AIE request 24/179 referred to discussions on the issue of recycled materials in forest road projects having not yet been completed and an intention by the Department to conduct discussions and develop policy on this subject later in 2024. He contended that this would indicate that materials falling within the scope of his request exist as it demonstrates that some consideration of the matter has taken place and that there would be some information on record to support the position that it was intended to conduct discussions and develop policy in 2024.
12. He also referred to an email in his possession written by a different named inspector, other than the inspector who was consulted by the Department in relation to this request. This email concerned a discussion between the named inspector and other individuals in relation to recycled materials in forest road projects. The appellant stated that it appeared that this inspector had not been consulted when searches were carried out for materials falling within the scope of his request.
13. He also referred to a record provided under AIE 23 102, in March 2023, where he says that the inspector tasked with searching for information in relation to this request stated:
“In relation to the requirements of the Climate Action and Low Carbon development (Amendment), Act 2021, the forthcoming Forest Roads Scheme has specific measures in place intended to reduce overall carbon footprint of the forest road programme in line
with requirements and will permit and encourage the use of recycled and circular economy materials, support and incentivise cooperative road building to reduce road construction needs, and directly support the use of reusable temporary access technology that will preclude concrete intensive bridge construction in the first instance.”
14. He stated that he believes this information would fall within the scope of his request and that it was not retrieved and that, therefore, adequate searches were not carried out. He said that he believed that there has been consideration of the use of recycled materials in Forest Road construction within the Department and the use of the expression ‘will permit’ in the statement quoted above points to some policy elaboration in this area.
15. In its internal review decision, the Department set out details of searches it carried out in
dealing with the appellant’s request. The decision-maker stated that:
“Following the assignment of this AIE request to me, I undertook several searches. These
searches include the below information.
• I contacted Grade 1 Forestry Inspector [Named Inspector], Subject Matter Expert, who is the lead Inspector on Forest Roads in the Forestry Division.
• An electronic search was done by [Named Inspector] to check all relevant folders on Department Databases eDocs/Shared area and a check of his email account using key words: Recycled Materials/Forest Road Recycled and he confirmed that no information exists.
• The use of the broad search terms allows for misfiled/misplaced records.
• The Department’s email retention policy is 2 years.
• Following these detailed searches, I am satisfied that reasonable and adequate steps were taken to identify and retrieve information specific to this request.”
16. The appellant’s submissions to this Office were shared with the Department and it provided replying submissions on 28 October 2025. It stated that the named individual consulted has responsibility for Forest Roads and, that, as the head of this area, he would be responsible and, at the least, involved in any discussions falling within the scope of the request. The Department also affirmed that if this inspector had guided the AIE team to contact any other relevant parties, they would have done so but this had not been considered necessary. The Department contacted the individual again and the individual stated that he had “developed the elements in question autonomously and without any prior consultation or discussion” and, as a consequence, no records exist. He stated that it is within his professional brief to proceed in this manner.
17. In relation to the appellant’s claim that material from a previous AIE request showed consideration of the subject matter of this request in an email involving two named inspectors but neither of those inspectors were consulted regarding the appellant's request, the Department stated that this email dated from 2017 and bore no relevance to the current request as it did not relate to the implementation of the use of recycled materials into the new forestry programme. The email in question was sent by an external third party inquiring about the use of recycled materials in forest roads but the
Department reiterated that it does not relate to any information that “led to this becoming
a topic for discussion” for the new Forestry Programme.
18. The Department stated that the following search terms were used in dealing with the request: "Recycled Materials/Forest Road Recycled" used together and as two separate phrases. It stated that searches carried out on its systems were not comparable to searches carried out by the appellant on his own inbox.
19. The Department concluded by stating that as per the OCEI decision OCE-144200-P5J0S4 Mr F and Coillte: ‘public authorities, perhaps in a majority of cases, are required to carry out adequate and thorough searches in order to identify information relevant to a request, I
am of the view, in certain instances, that it is reasonable to rely on the knowledge of officers of a public authority, especially when they are specialists in a particular field or are denominated senior subject-matter experts, as in this case, if they consider that information relating to a request or an element of a request does not exist. In these circumstances the carrying out of searches would be a redundant exercise and would not be a good use of public resources. This is because if such specialists or senior subject-
matter experts, who have intimate knowledge of the field in which they work on a daily basis, as appears to be the case in this instance, affirm that no information of the type requested exists, then to require a public authority in such circumstances to conduct a needless search would be tantamount to requiring it to direct resources to a meaningless and futile task.’ The Department stated that it is reasonable for it to rely on the knowledge of its officers, especially as the named individual relied upon “is a senior Subject-Matter Expert.”
20. 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”.
21. 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.
22. 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.
23. 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.
24. In relation to the current request, the Department stated that the lead inspector on Forest Roads in the Forestry Division was consulted to search for material relevant to the appellant’s request. As lead inspector, it was considered appropriate to consult with him as he is likely be aware of all matters concerning the use of recycled materials in forest roads in the Forestry Division. This individual checked his own email account and relevant folders on Department Databases eDocs/Shared area. He searched electronically using the search terms - "Recycled Materials/Forest Road Recycled" were used. Those phrases were used together and as two separate phrases. The use of broad search terms allowed for misfiled or misplaced records.
25. While the appellant has referred that the fact that article 9(2)(d) of the Regulations was invoked at original decision stage, I note this was varied at internal review stage to article
7(5) of the Regulations on the basis that no records existed. I do not accept the appellant’s suggestion that because article 9(2)(d) was invoked at original decision stage, it can be inferred that further information is held by the Department in relation to this request. My role is to review the internal review decision and the internal review decision in this case was clear in its position that it was relying on article 7(5) only to refuse the request.
26. While the appellant has contended that an overly narrow interpretation of the scope of the request was adopted, in that he sought any information which preceded the discussion stage, not limited simply to discussion or consultation, it appears from the search terms employed (“Recycled materials/Forest Road Recycled”) that the scope of the request was not overly limited. The Department has stated that the search terms were used together and as two separate phrases but no records relevant to the request were found. The Subject Matter Expert who was consulted categorically stated that he had developed relevant elements autonomously and no records exist.
27. While I acknowledge the appellant’s view that further information in the scope of this appeal with respect to the planning for discussions and policy development in 2024 should exist, it is important to note that where a public authority refuses a request for records under article 7(5) of the Regulations, the question we must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. The AIE
Regulations does 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.
28. It is also important to note that we do 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 authorities body's explanation of why a record does not exist. The test in article 7(5) of the AIE Regulations is whether the body has taken all reasonable steps to locate the record sought.
29. In light of the foregoing, I find that the Department took all reasonable steps to identify
and locate the requested information relevant to the appellant’s request.
30. Accordingly, I affirm the internal review decision of the Department on the basis that reasonable steps have been carried out to identify and locate all relevant information held by it.
31. Having regard to the above, I find that the Department has taken adequate steps to identify and locate all relevant environmental information held by it. As such, I find that article 7(5) of the AIE Regulations can be relied upon by the Department.
32. Accordingly, I affirm the decision of the Department in its entirety.
33. 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