Cinneadh
Mr. F & The Forestry Appeals Committee [the FAC]
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-159266-B2X7Q2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-159266-B2X7Q2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the FAC has established that it did not hold information coming within the scope of the appellant’s request in accordance with article 7 (5) of the AIE Regulations.
1 October 2025
1. On 25 March 2025, the appellant made a request to the FAC as follows:
“With reference to 14F (1) of the Agriculture Appeals Act 2001
All information on the consultation between the chairperson of the Forestry Appeals Committee and Minister for Agriculture Food and the Marine (or any representative of the Minister) on the prescribing of fees for an appeal to the Forestry Appeals Committee.
This would have occurred in early October 2020.
Please interpret this request broadly.
Please provide a schedule of records with your decision.”
2. The FAC delivered its original decision on 25 April 2025 refusing the information pursuant to article 7 (5) of the AIE Regulations on the basis that no information was found following searches carried out.
3. On 25 April 2025, the appellant sought an internal review of his request, stating that the decision provided no detail of the searches undertaken.
4. In its internal review decision delivered on 23 May 2025, the FAC stated that there were no records or documents found during the review of the decision. The FAC provided details in respect of the location of the searches carried out and the search terms utilised and concluded that there were no records found.
5. The appellant appealed to this Office on 27 May 2025, on the basis that the FAC had failed to take all reasonable steps to identify the information falling within the scope of his request.
6. 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 Forestry Appeals Committee. 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’).
7. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
8. In accordance with article 12 (5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annual or vary it.
9. The scope of this review is solely concerned with whether the FAC was justified in refusing access to environmental information coming within the scope of the appellant’s request on the grounds that no relevant information was held by or for the FAC under article 7(5) of the AIE Regulations.
10. While the AIE Regulations do not explicitly provide that the burden of proof rests with the public authority in relation to justifying a refusal to make information available, the Commissioner considers that the scheme of the Regulations, and of Directive 2003/4/EC upon which the Regulations are based, makes it clear that there is a presumption in favour of release of environmental information.
The FAC
11. In its original decision on 25 April 2025 refusing the information on the basis of article 7 (5) of the AIE Regulations, the FAC advised that following examination of material held by the FAC administration, the current Chairperson and previous Chairperson, that it was unable to locate any records relevant to the request. Therefore, the request was refused on the basis it does not exist.
12. The FAC also stated that it carried out a search of all physical and electronic documents held by the FAC relating to the AIE request and the previous and current FAC Chairperson were requested to search all information that they hold “thoroughly ” and concluded that the information does not exist.
13. In its internal review decision delivered on 23 May 2025, the FAC stated that there were no records or documents found during the review of the decision, outlining that the previous chairperson had been asked to search all files, emails and records relating to the FAC with terms: “Minister consultation prescribing fee(s)”, “Consultation for Fees ”, “Establishing a fee ”, “fee ”. The FAC stated that there were no records found on foot of the searches carried out.
14. For completeness, the FAC in correspondence with this Office dated 21 July 2025 reiterated the search terms used by the previous chairperson as part of the searches carried out in respect of this matter.
The appellant
15. The appellant, in his request for an internal review dated 25 April 2025, stated that he was satisfied that the current chairperson would not hold any information but, “I need to be sure ” that the previous chairperson “has no records of the consultation .” He also stated that the decision provided no detail of the searches undertaken by the previous chairperson and asked the FAC to confirm with the previous chairperson “whether the consultation occurred, and no records were maintained or was there no consultation ?”
16. The appellant appealed to this Office on 27 May 2025, stating it was not clear whether the searches undertaken by the previous chairperson were for “full or partial matches or for the Subject / Title or the whole of the document or email .” The appellant also opined that the searches indicated to have been undertaken by the previous chairperson “would surely have returned some matches ” and asked, “How were these filtered?”. The appellant stated that he must conclude that the FAC had failed to take all reasonable steps to identify the information falling within the scope of his request.
17. In correspondence to this office dated 03 June 2025, the appellant provided this office with a document entitled “Stakeholder Meetings with the FAC ”. The appellant stated that the document indicates that the FAC had a meeting with the Minister on 06 October 2020, the time period the subject of his request and he asked could the FAC confirm that records relating to this meeting had been checked to see if they fall within the scope of his request.
18. Article 7 (1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request, subject to the provisions of the AIE Regulations. Accordingly, if a public authority wishes to refuse access to environmental information held by or for it, it must do so under an exemption provided for in the AIE regulations.
Article 7 (5) of the AIE Regulations
19. In this case, the appellant contends the FAC has failed to take all reasonable steps to identify the information falling within the scope of his 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 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.”
Duty to give reasons
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. Article 7(5) of the AIE regulations allows a 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, amongst other things, provide evidence that it carried out adequate searches for the environmental information requested. The requirement under article 7(5) of the AIE Regulations for a public authority to clearly set out the actions it has taken in response to a request is not only necessary for this Office in its considerations but also gives confidence to the appellant that suitable search procedures were conducted in response to their request.
22. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also 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 & 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.
23. 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, whether at internal review stage or through an appeal to this Office.
24. In its original decision dated 25 April 2025 and internal review decision dated 23 May 2025, the FAC outlined the steps undertaken with respect to searches for information relevant to this AIE Request. I have carefully examined the steps that the FAC says it took to ensure all information relevant to the request has been identified. This includes a search of physical and electronic documents held by the FAC and both the current and previous chairperson of the FAC carried out searches.
25. In particular, the previous chairperson of the FAC, the acting chairperson during the relevant temporal period of this request, carried out searches of “all files, emails, records ” relating to the FAC with the search terms: “Minister consultation prescribing fee(s)”, “Consultation for Fees ”, “Establishing a fee ”, “fee ”. I note the FAC states that these searches yielded no result and as such it determined that no records exist.
26. I note the appellant has raised a number of queries in his request for an internal review and his appeal to this Office, and I have considered these queries, which include his contention that it is unclear if the searches undertaken by the previous chairperson were for full or partial matches or for the Subject/title, or the whole of the document or email and his opinion that such searches would “surely ” have returned some matches.
27. It is important to note that where a public authority refuses a request for records under article 7 (5) pf 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. 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.
28. 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. I am satisfied that the appellants language that “he needs to be sure ” that the previous chairperson “has no records of the consultation” goes beyond the standard prescribed by Article 7 (5) of the AIE Regulations.
29. I also note from the appellant’s correspondence to this office dated 03 June 2025, his view that the document entitled “Stakeholder Meetings with the FAC ” indicates that the FAC had a meeting with the Minister on 06 October 2020, and he asked could the FAC confirm that records relating to this meeting had been checked to see if they fall within the scope of his request. In circumstances where the FAC have set out the search terms used and the locations of such searches, I do not consider it necessary for the FAC to confirm the answer to this query.
30. Considering the circumstances of this appeal, I am persuaded based on the information before me, that the FAC has taken sufficient steps to determine that it does not hold 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.
31. In all the circumstances, in particular the FAC’s explanation regarding the search terms used, the location of such searches and the personnel who conducted such searches, I am satisfied that the FAC has taken sufficient steps to determine that it does not hold 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. For the sake of completeness, I note the appellant has the option to submit a fresh request for information beyond the scope of his original request should he wish to do so.
32. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm the decision of the FAC under article 7 (5) of the AIE Regulations.
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.
______________________
Julie O’Leary
On behalf of the Commissioner for Environmental Information