Cinneadh
Mr. F & The Forestry Appeals Committee [the FAC]
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-161673-J5Y3R0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-161673-J5Y3R0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the FAC provided the appellant with all relevant information in accordance with article 7(1) of the AIE Regulations and whether the Department established that it did not hold any further information in accordance with article 7(5) of the AIE Regulations.
14 November 2025
1. On 19 June 2025, the appellant sought information from the Forestry Appeals Committee [the FAC] under the AIE Regulations seeking access to the following:
Information which has informed the FAC's consideration that the rules around State Aid and the associated payment of afforestation scheme grants and premiums are outside the remit of the FAC.
To include any legal advice sought and received.
Please interpret this request broadly.
Please provide a schedule of records with your decision.
Please ensure that all records provided are compatible with Assistive Technology.
2. On 17 July 2025, the FAC provided a schedule of records and part granted the appellants request, directing the appellant to the Agricultural Appeals Act 2001 and the Forestry Appeals Committee Regulations 2020 and the amending legislation which were available on https://www.irishstatutebook.ie/ . The FAC refused the remainder of the request on the basis that searches conducted returned no records relevant to the request.
3. On 18 July 2025, the appellant requested an internal review of the matter, stating that the original decision was not an adequate response in the context of the AIE Regulations.
4. The FAC delivered its Internal review decision on 15 August 2025, affirming the original decision on the basis that having carried out searches, no other relevant records to the request were found.
5. The appellant appealed to my Office on 20 August 2025 stating that no specific information has been provided that meets 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 FAC. 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, my role is to review the 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.
9. Pursuant to article 7(5) of the AIE Regulations, the scope of this review is to investigate whether the FAC has conducted adequate searches in order to locate all records which may come within scope of the original AIE request.
10. In both the original decision dated 17 July 2025 and the internal review dated 15 August 2025 the FAC stated that having conducted a thorough search of physical and electronic records, there was only two records relevant to the request which were already publicly available. These records were the Agricultural Appeals Act 2001 and the Forestry Appeals Committee Regulations 2020 and the amending legislation which were available on https://www.irishstatutebook.ie /
11. The appellant in his request for an internal review dated 18 July 2025 stated that the original decision was “not an adequate response in the context of the Regulations ”.
12. The appellant provided submissions in support of his appeal dated 20 August 2025 which were shared with the FAC. The appellant provided background information to his request stating that a number of appeals to the FAC have included “grounds which contend that the licence awarded by DAFM is contrary to the conditions of the State Aid Rules which underpinned the approval of the Forestry Programme 2023-2027 .” He further stated that his request was based on the content of appeal decisions of the FAC where it is stated that "the rules around State Aid and the associated payment of afforestation scheme grants and premiums are outside the remit of the FAC." The appellant stated through this request that he was trying to determine the basis (including the legal basis) for the FAC's position.
13. In his submissions to this Office, the appellant opined that no specific information has been provided that meets his request.
14. The appellant further argued that it is unclear as to how the decision maker determined, how the records released were identified as meeting his request, stating that the information indicated to be a part grant of his request, contains no reference to the subject of the AIE Request and as such he does not consider that his request has been granted in whole or in part.
15. The appellant further stated that “I can accept that no information exists that meets my request and that the FAC has come to a conclusion based on personal opinion / interpretation but the correct decision on my request in such circumstances is a refusal under Article 7(5) .”
16. In its internal review decision dated 15 August 2025, the FAC stated that it had conducted a thorough search of all physical and electronic records held by the FAC in relation to the appellants AIE request.
17. The FAC outlined that it had searched material held by the FAC administration and the FAC committee using the search terms “Legal Advice State Aid” and “Legal Advice ” and that it had located no other relevant records other than those previously released to the appellant.
18. In correspondence with this Office dated 12 September 2025, the FAC stated that it provided links to publicly available information and there was no other information located that related to the request.
19. In this case, the FAC contends that it has part granted records, the subject of the request to the appellant and that having carried out searches of its records, that it was unable to locate any other records.
20. In the circumstances article 7 of the AIE Regulations is the appropriate article to consider. 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.
21. As the FAC contends that it has part granted records, the subject of the request to the appellant and that having carried out searches of its records, that it was unable to locate any other records, 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 .”
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. 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.
24. 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.
25. 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.
26. In its original decision dated 17 July 2025 and internal review decision dated 15 August 2025, the FAC outline 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 included a “thorough search of all physical and electronic records held by the FAC in relation to the appellants AIE request.” I also considered the search terms used by the FAC which included “Legal Advice State Aid ” and “Legal Advice ” of material held by the FAC administration and the FAC committee.
27. It is important to note that 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. That being said, I am not convinced that the FAC has taken all reasonable steps in the circumstances of this appeal to justify its position that no further records exist. No explanation was provided by the FAC as to how the searches were carried out. Whilst the FAC referred to two sets of search terms, no overall picture in relation to what specific departmental databases or the areas of the organisation to which the databases searched related has been provided to establish if such search terms were appropriate.
29. It may very well be the case that no further records exist, however in normal course, I would expect a public authority to provide greater detail as to where precisely searches were performed. It is not sufficient to simply say searches were conducted of “all ” electronic records or “material held by the FAC administration ”. The FAC should set out what folders/ databases were searched. Further, I would expect the FAC to advice, who if anyone was consulted regarding this request and what role they occupy, for example, a member of the legal team given the legal nature of this request. Further, I consider the search terms used in the searches to be of limited effect and a widening of search terms may have yielded more results or certainly alleviated concerns regarding the adequacy of the searches performed.
30. Further, no description of the searches carried out to cover the possibility of misfiled or misplaced records has been provided. Moreover, no 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 have been provided.
31. In light of all the foregoing, I am not 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 appellants request and accordingly, was not justified in refusing the request.
32. Accordingly, it is my view that the most appropriate course of action to take in this case is to remit the matter to the FAC for a fresh decision-making process to enable it to undertake searches for any information it may hold that may be relevant to the request and, thereafter, to issue a fresh internal review decision to the appellant in response to his request.
33. For the sake of completeness, I note that the appellant has stated that the information indicated to be a part grant of his request contains no reference to the subject of the AIE request. Whilst it would be helpful for a public authority to tie records provided pursuant to an AIE Request to the specific request itself, the Regulations do not prescribe such a requirement and it may in certain cases be useful for the public authority to provide background information or context that is relevant to a request.
34. I have decided that the most appropriate course of action to take in this case is to annul the FAC’s decision and require it to provide the appellant with a new internal review decision under article 11 of the AIE Regulations.
35. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the FAC’s decision and direct it to provide the appellant with a new internal review decision.
36. 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