Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-147096-D1W0V4 / OCE-146904-Q2H4V6 / OCE-146632-X4X2B8 / OCE-146684-Z4V9H0 / OCE-144794-C3N0F3 / OCE-144882-F6W1V5 / OCE-144883-B9G3B3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing the information sought
26 March 2023
1. The seven appeals which this decision concerns were each the subject of a decision by the Department on a date between 6 December 2023 and 28 February 2024. Each of these cases relates to a request for environmental information relating to forestry. On examination of the casefiles all seven of these appeals have been identified as cases where the reasons provided in internal review decisions were not sufficient having regard to the AIE Regulations and Directive.
2. 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’).
3. In accordance with article 12(5) of the AIE Regulations, the role of this Office in each of these appeals is to review the Department’s internal review decision and to affirm, annul or vary it.
4. I note that the increase in AIE requests and subsequent appeals in relation to forestry issues has been challenging for the Department. I understand that the Department has allocated additional resources to process AIE requests and subsequent appeals and that is most welcome, as is the continued engagement of relevant staff of the Department with this Office’s investigators. It should be noted however, that in each of these appeals the Department’s decision-making process was not satisfactory having regard to the responsibilities placed on public authorities by the AIE Regulations. Given the number of recent appeals to this office concerning decisions where the Department have not complied with these responsibilities, I must remind senior management within the Department that the Department must ensure that decision makers are supported in their role and that training is provided to ensure that adequate and lawful first instance decisions are made in relation to AIE requests. This office has a significant backlog of appeals, and it will be impossible to clear this backlog if public authorities do not issue comprehensive and lawful first instance decisions.
5. I would also encourage the Department to review its procedures for searching for environmental information, and take account of the requirement under article 5(1)(b) of the AIE Regulations for it to make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible.
6. In each of these appeals the Department made a decision to refuse the information sought, relying on article 7(5) of the AIE Regulations in each case on the basis that no information exists, in addition to article 9(2)(b) in appeal no. OCE-146632-X4X2B8. Due to the nature of the decision-making in each appeal, I consider it appropriate to deal with these appeals in one decision.
7. Article 7(5) of the AIE Regulations is the relevant provision of the Regulations when a request is refused on the grounds that a public authority does not hold the information sought, as follows:
“7(5) 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.”
8. In cases where refusal is based on article 7(5) of the Regulations, the reasons for the conclusion that no relevant information is held by or for the public authority should be provided to the appellant. 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.
9. In dealing with cases where a public authority has effectively refused a request under article 7(5) of the AIE Regulations, this Office must be satisfied that adequate steps have been taken to identify and locate relevant records, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply.
10. 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.
11. The above is an indicative list and it is for the Department to consider what steps may be relevant in an individual appeal. I will however note that it is not sufficient to simply list in a generic manner that searches were carried out by keyword or that relevant personnel were contacted. Sufficient details must be provided as to the exact areas searched, a description such as the job title of the persons contacted, a description of the particular types of searches carried out, an explanation of why such searches were considered appropriate, and any other relevant detail that will explain why the Department does not hold the information sought. In the vast majority of cases it will not be sufficient to simply state that no records were found. It should be born in mind that the requestor, and equally this Office, is unlikely to have a detailed knowledge of the inner workings of the Department. The Department should therefore set out why a particular business unit was contacted in relation to this request or why a particular database was searched. Where the appellant raises particular issues in his request for an internal review, those should be addressed in the internal review decision. This was not done, or was not done to a satisfactory level in these appeals.
12. In appeal number OCE-146632-X4X2B8, article 9(2)(b) is also relied upon. The original decision refers to articles 9(2)(b) and 7(5) of the AIE regulations, and also states “In my opinion this request is too broad and voluminous, you are welcome under Article 6. 1. (d) to state, in terms that are as specific as possible, the environmental information that is the subject of the request”. The internal review decision states “Having reviewed the records that were refused in accordance with the provisions of article 9(2)(b) of the AIE Regulations, I can confirm that this request was too broad and voluminous.” However, article 9(2)(b) only provides for the refusal to make information available where the request remains formulated in too general a manner- which is very different to a request being broad and voluminous.
13. Each of the decisions which are subject to appeal in these cases fail to provide adequate reasons for refusal of the requests. The duty to give reasons, which arises not only by virtue of the AIE Regulations and Directive, 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.
14. The judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 371 notes that “the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal”.
15. It is clear from my review of the decision-making records in these appeals that the Department has not complied with its duty to give reasons for its decisions in respect of these requests. While some of the decisions provide marginally more detail than others, the Department has not set out in sufficient detail the reasons why the requests are being refused under article 7(5) and in additionally in appeal no. OCE-146632-X4X2B8 under article 9(2)(b). The Department has also not sufficiently addressed issues raised by the appellant in his requests for internal review in each appeal. Due to this failure to provide adequate reasons for refusal, I find that the Department was not justified in refusing the information sought and I annul the internal review decision in each of these appeals.
16. Rights under the AIE regulations are very important and there is a clear duty on public authorities to comply with their obligations, including the obligation to give reasons. It is open to my Office to carry out a full investigation of these appeals, which would include seeking detailed submissions from the Department, providing same to the appellant for his comment and then reaching an individual decision on each appeal. However, this would take significant time and resources, and in my view would equate to this Office carrying out work that the Department should have conducted when making decisions on these appeals in the first place. I consider that the AIE Regime is best served by annulling the internal review decision of the Department in each of these appeals. The legal effect of this decision is that the Department must now issue a new internal review decision to the appellant in respect of each of the seven appeals which are subject to this decision. These internal review decisions should provide the appellant with adequate reasons for each of the decisions taking my findings above into account. If the appellant remains dissatisfied, he can appeal again to my Office.
17. I must also note that several of the decisions in these appeals contained a paragraph setting out that a public interest test had been carried out in accordance with articles 10(3) and 10(4) of the AIE Regulations. However, the public interest test does not arise in cases where a request is being refused under article 7(5) of the AIE Regulations, as no information falls to be released. The Department should ensure that each request is considered on a fresh and individual basis and that irrelevant matters are not contained in decisions.
18. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the internal review decision of the Department in each case. A new internal review process should now be carried out in each case under article 11 of the AIE Regulations.
19. 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