Cinneadh
Mr X and Forestry Appeals Committee
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-162031-Q4Y6R8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-162031-Q4Y6R8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the FAC was justified in refusing the appellant’s request on the basis that no further environmental information within the scope of that request is held by or for it
06 January 2026
1. On 27 June 2025, the appellant made a request to the FAC under the AIE Regulations seeking access to the following:
“1) All notes made by the Secretary to the FAC and any other administrative staff during and / or related to the hearing of the appeal of LS01-FL0090, April 2025.
2) All notes made by the members of the FAC during and / or related to the hearing of the appeal of LS01-FL0090 April 2025. (Notes includes handwritten notes or notes made on an electronic device)
3) The date of all legal advice sought by the FAC consequent to the hearing.
4) The date of any legal advice received by the FAC consequent to request under Item 3.
5) The transcript of the hearing of LS01-FL0090.”
2. On 25 July 2025, the FAC issued its decision and part granted the appellant’s request, refusing elements of the request on the basis that searches conducted returned no relevant records.
3. The appellant requested an internal review on 28 July 2025, specifically of Item 2, stating that it had “effectively, been refused” and that “...Members of the Committee made notes during the hearing - those records should be provided under this request."
4. On 25 August 2025, the FAC issued an internal review decision affirming the original decision, on the basis that having carried out searches “no other records exist in respect of Item 2 beyond those already provided.”
5. The appellant submitted an appeal to this Office on 1 September 2025, confirming that the appeal was limited to Item 2 of the original request.
6. On 29 September 2025, the FAC upon notification of the appellant’s appeal by this Office, confirmed that there was no additional information located that related to this request.
7. I am directed by the Commissioner to undertake 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 by the FAC. 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’).
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 determine whether the FAC has conducted adequate searches to locate all records which may come within scope of the original AIE request with respect to Item 2.
10. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on 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 is held by or for the public authority concerned.
11. 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.
12. 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.
13. 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.
14. In the appellants original request dated 27 June 2025, Item 2 sought: “All notes made by the members of the FAC during and/or related to the hearing of the appeal of LS01-FL0090 April 2025. (Notes includes handwritten notes or notes made on an electronic device)”
15. In its original decision, the FAC outlined the steps taken to identify relevant information. The FAC stated that the members of the committee for this hearing were contacted by email and requested to search for any documents relating to the appellant’s request. The FAC confirmed that this search returned no records.
16. The appellant requested an internal review on the 28 July 2025 with respect to Item 2 only, and stated the following:
“I wish to request an internal review of Item 2 which has, effectively, been refused. The Members of the Committee made notes during the hearing - those records should be provided under this request. It is unclear from the decision;
1) Where this information is held
2) What searches were undertaken by the Members of the FAC.”
17. In its internal review decision, the FAC affirmed its decision to refuse access to Item 2. The FAC outlined the steps undertaken with respect to searches for information relevant to this element of the appellant’s request as follows:
“I contacted each of the members of the committee who attended the hearing and requested that they carry out a search of both their physical and electronic records.
Each member confirmed that they hold no records within the scope of your request. Their searches did not return any notes (handwritten or electronic) relating to the hearing.”
18. Further the FAC reiterated that additional searches were “also carried out of the administrative file for this appeal. As reported in the original decision, handwritten notes were identified for […names redacted] and these have been released to you. No other records exist in respect of Item 2 beyond those already provided.”
19. The appellant questioned the searches carried out by members of the committee and opined the following with respect to the FAC’s internal review decision, “I am satisfied that Members of the Committee made notes during the hearing - I witnessed this. It is unclear what happened to those notes, but they fall within the scope of my request. The IR decision is not sufficiently clear as to what the Members of the FAC were asked to search for, or what searches they actually undertook.”
20. The appellant in his appeal to this Office stated that he raised queries directly with the decision maker in the FAC, “I did seek to engage with the decision maker regarding his decision and my post IR correspondence forms part of this submission as I received no response to it.” The appellant sought clarification from in this request and specifically in relation to the searches undertaken “What searches did the members actually undertake – I am looking for a detailed practical description.” Further, the appellant expressed that he attended the hearing and noted members of the committee taking notes and sought clarity as to what happened to those records.”
21. It is the appellant’s position that environmental information relevant to his request as provided for in item 2 should exist. Whilst I am conscious that he may genuinely hold such a view, this Office has no role in assessing how public authorities collect, maintain and disseminate environmental information. The role of this Office concerns reviewing appeals of requests for access to environmental information within the scope of a request, which is held by or for the relevant public authority. This Office has no jurisdiction over whether or not a public authority should hold environmental information relevant to a particular AIE request.
22. 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.
23. In order to assist with the assessment, an Investigator from this Office wrote to the FAC on 31 October 2025, seeking additional information on the searches carried out by the FAC committee members with respect to Item 2, particularly details outlining “where” committee members searched for the records.
24. On the 10 November 2025, the Investigator received the following response from the FAC:
“Each committee member who attended the hearing was contacted and asked to check both physical and electronic records they use for committee work, they searched:
• Email: their mailbox used for Committee work.
• Computer and shared storage: local folders on their laptop/PC and the FAC SharePoint
• Physical materials: personal work notebooks/diaries used in 2025, any printed hearing documents, and any hardcopy file in their possession relating to LS01FL0090.
• No handwritten or electronic notes created by committee members were located. As previously advised, handwritten administrative notes were found and have been released.
Keywords used for electronic searches by members of the committee:
• “LS01FL0090”, “LS01 FL0090”, “FL0090”
• “FAC616/2020”, “FAC568/2020”
• “hearing” (combined with the above, e.g., “LS01FL0090 AND hearing”)
Each member confirmed that they do not hold any records within the scope of Item 2.”
25. Where a public authority refuses a request for records under article 7 (5) of 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 information sought.
26. 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 it has taken sufficient steps to determine that it does not hold further 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.
27. Finally, I feel it necessary to note the limited search details provided in the internal review issued to the appellant by the FAC and remind the FAC of its duty to give reasons for the refusal of requests (as required by the AIE Regulations, Directive, administrative law and constitutional justice.) Articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stage, consistent with Article 4(5) of the AIE Directive. 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. In my view, had the FAC set out the detail of the searches carried out by it to the appellant (the detail of which it subsequently provided to this Office), this appeal may not have occurred, or indeed could have been further limited in scope.
28. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the FAC’s decision with respect to Item 2 of the appellant’s request.
29. 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