Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146189-B9W1P
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing the appellant’s request on the basis that no further environmental information within the scope of the request is held by or for it.
20 October 2025
1. On 27 October 2023, the appellant contacted the Department with the following AIE request:
“Please provide, by email, for the following three townlands:
Tooreennagreana, Limerick
Rockhill West, Cork
Rockhill East, Cork
information on the percentage of the land area of the townland afforested as at the following >alternative dates:
1 January 2003
1 January 2014
1 January 2023”
2. The Department issued its original decision on 22 November 2023. The Department refused access to the records under article 9(2)(a) of the AIE Regulations, noting that “having considered the volume and range of records which are relevant to your request for information on the percentage of the land area of three townlands afforested over specified timeframe, it is my opinion that this request is manifestly unreasonable due to the range of records, the issue of retrieving older archived data, and the requirement to draw upon limited [Department] subject matter experts to complete this request ”.
3. The appellant requested an internal review on 28 November 2023. Within her internal review request the appellant also queried if the Department could suggest any amendments to her request in order for the volume not to be an issue and the reason for refusal.
4. The Department’s internal review decision of 4 January 2024 affirmed the decision of the original decision maker. The Department’s internal review decision did not make any reference to the appellant’s email wherein she sought assistance in refining her request.
5. The appellant submitted an appeal to this Office on 6 February 2024. Within her statement of appeal, the appellant set out that she disagreed that article 9(2)(a) properly applied to her request. In addition, the appellant noted that she further contacted the Department (on 5 December 2023 and 12 December 2023) as a follow up to her query regarding refining her request. The appellant stated that she did not receive a reply to either of the December 2023 emails.
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 Department of Agriculture, Food and the Marine 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); and
* 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 her submission Office dated 19 March 2024, the appellant, among other things, said that she had separately received from the Department the percentage of the land area of Rockhill East as of 1 January 2023. She also stated that she had received from the Department the percentage of the land area afforested for the three townlands concerned as of 1 January 2024.
9. During the course of this investigation, the Department released an excel sheet to the appellant on 28 March 2024 which detailed all afforestation which has taken place in the relevant townlands that is available on the Department’s iFORIS database. This contained figures of the hectares afforested for different contract numbers for Rockhill East/West as at 03/10/05; Rockhill East as at 19/07/1996; Rockhill West as at 01/04/1991, 30/03/2003, and 05/07/1996; and Tooreennagreana as at 01/04/2004. In doing so, the Department stated that it was unable to provide information on the percentage of the land area of the townland afforested as it had not undertaken any such analysis and therefore no relevant records or data are in its possession, and it was therefore refusing that part of her request under article 7(5) of the AIE Regulations.
10. The appellant responded on 2 April 2024. She disputed the Department’s statement that it was unable to provide information on the percentage of the land area of the townland afforested, given that she had received from the Department, separately under the AIE Regulations, the percentage of the land area of the townland afforested for all three townlands as of 1 January 2024 and for Rockhill East as of 1 January 2023.
11. In addition, she set out the following:
“I have also recently received the percentage of Rockhill East forested as at 1 January 2023 (the answer being the same figure i.e. 3.47%). Since the date of 1 January 2023 is one of the three dates within the subject AIE request, (i.e. all dates being - 1 January 2003, 1 January 2014 and 1 January 2023) it is highly probable that other forested figures as at 1 January 2023 could also be provided to me by DAFM under this AIE request for Rockhill West and Tooreennagreana. I would expect the two figures to be 21.00% and 12.00% respectively ”.
12. The appellant queried if the above information was correct and asked further questions related to her request. Additionally, she asked if article 9(2)(a) did now not apply for the refusal of the request.
The Department responded to the appellant on 2 April 2024 noting that a member of staff on leave would be able to retrieve the information and that he would be in touch as soon as he had the requested information. It also informed her that article 9(2)(a) does not apply to the refusal of the request. The appellant was contacted by the Department on 24 June 2024 with figures of the hectares afforested for the requested townlands between 2003-2014. The Department indicated at that time that there are no more afforestation figures for the three townlands for the remaining dates. The appellant wrote to the Department on 27 June 2024 with additional queries regarding the information sought and indicating she was still seeking percentage details.
13. Having discussed this case further with the Department, an OCEI Investigator contacted the appellant on 12 July 2024 to inform her that the Department had advised that it would take a significant amount of time for it to compile the information requested and that article 9(2)(a) may apply.
14. In response the appellant further queried “if the 2023 information can be provided (in 2024) by DAFM for Rockhill East, why cannot it also be provided by DAFM now for Tooreennagreana and Rockhill West? If this 2023 information were to be provided by DAFM now, the formal investigation would then relate only to the 2003 and 2014 information requested ”.
15. The Department’s initial refusal in this case was under article 9(2)(a) of the AIE Regulations which was affirmed at internal review. Following the appellant’s appeal to this Office, information was released to the appellant and ultimately the Department informed the appellant that article 9(2)(a) did not apply to the request. In its submissions to this Office the Department indicated that it was relying on article 7(5) of the AIE Regulations to refuse access.
16. Accordingly, the scope is limited to whether the Department holds information relevant to the appellant’s request. When dealing with appeals such as this, 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.
17. The Commissioner’s approach to dealing with cases where a public authority has effectively refused a request under article 7(5) is that he 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, the Commissioner considers that a standard of reasonableness must necessarily apply.
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. It 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.
19. The appellant continues to seek for the three identified townlands, information on the percentage of the land area of the townland afforested as at 1 January 2003, 1 January 2014, and 1 January 2023.
20. Further to the correspondence set out in the Background and Preliminary Matters sections, having examined the casefile, the Investigator issued a request for submissions to the Department on 10 July 2025 to determine its updated position in this case. In its correspondence dated 15 August 2025 the Department submitted that it previously supplied records to the requester in this case, and noted that it was “refusing provision of remaining requested records on the basis that the information is not held by or for the Department”. The Department’s submission also included the following:
“The Afforestation percentages of 3 different townlands over 3 different dates (01/01/2003, 01/01/2014 & 01/01/ 2023) were requested. The initial AIE request implies that forest cover for every townland on every date exists or is held by DAFM, this is not in fact the case. There are approximately 50,500 townland areas in Ireland, these polygon areas come from the Taillte Eireann townlands dataset. The Department, as part of the normal operating practices and function, do not maintain a rolling daily record of the percentage forestry cover in each of these townlands. The implication from this EIA request is that the Department would hold 50,500 (townlands) x 365 (days) x 20 (years) which equates to 36,865,0000 individual data records of forest cover percentage by townland. The Department do not hold this data .
For the specific townlands in question, the information requested would need to be generated from existing data holdings i.e. it does not currently exist as a data record in the form requested. In other words, the data does not currently exist in the Departments records and would have to be created specifically for the requester. Furthermore, while the Department could determine or provide an estimate, generating a new data record, of the forest cover for the dates in question, we do not hold same. Additionally, while this may be straightforward for 2023 the Department cannot be definitive on the response for 2014 and 2003 until the available data is examined. It is estimate that the work required to produce the requested records would be approximately 1 day of a SME’s time ”.
21. The Department further submitted that “when an afforestation file undergoes EIA sub-threshold screening there is a real-time assessment of the forestry cover in the townland, this figure is used as part of the EIA subthreshold screening processing”. The Department added that records received by the appellant from a separate AIE, which was noted in the appellant’s appeal, are a result of this process. The Department reiterated that it does not keep or maintain a rolling daily record of every afforestation percentage for every townland.
22. The general thrust of the Department’s position is that additional information sought by the appellant is not held by or for it. Notwithstanding that it would take 1 day to generate the requested information from existing data holdings, the issue is that the information is not easily extractable in a way that would amount to taking reasonable steps, for example generating a simple report in Excel. Rather, it appears that the work which would be required is work that is not usually carried out by the Department and would require the creation of a new record involving data analysis.
23. I am satisfied that the Department have made reasonable efforts to investigate whether any additional information is held by them in this case. I accept the Department’s reasoning as to how the EIA subthreshold screening processing resulted in certain records being received previously by the appellant in a separate AIE request, including Rockhill East as of 1 January 2023. However, I acknowledge that there was no reference to any EIA sub-threshold screening occurring in respect of the remaining dates / townlands.
24. It is outside the remit of this Office to adjudicate on how public authorities carry out their functions generally, including with respect to their environmental information management practices. I have no role in assessing how public authorities collect, maintain and disseminate environmental information. My role concerns reviewing appeals of requests for access to environmental information within the scope of the request, which is held by or for the relevant public authority and no more than that. If the information sought is not held by or for the public authority then that is the end of the matter, regardless of whether or not the requester believes that the information ought to exist based on his or her views as to what constitutes good administrative practice.
25. I accept based on the submissions of the Department that it is not possible for the Department to provide any further information as requested by the appellant as no additional relevant information is currently held by it. I am satisfied that the appellant has separately received the percentage of the land area of Rockhill East as of 1 January 2023 and although this occurred through a separate AIE process, it was referred to by the appellant and discussed with the Department throughout this AIE process.
26. In all the circumstances and having considered the Department’s explanations as to why it does not hold further specific data sought by the appellant, I am satisfied that the Department was justified in refusing access to additional information sought under article 7(5) of the AIE Regulations on the ground that it is not held by or for the Department.
27. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department’s decision.
28. 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