Cinneadh
Ms X. and The Department of Agriculture, Food and Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-155585-F6Z3Y9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-155585-F6Z3Y9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified, on the basis of article 9(2)(a) and article 9(2)(b) of the AIE Regulations, in refusing to provide access to the requested material.
6 February 2026
1. On 22 November 2024, the Appellant made the following request to the Department:
“Can you please provide, by email, copies of all work emails, on forestry related matters , both sent and received by Paul Savage (Assistant Secretary General of DAFM) on Thursday 11 April 2024 . Information requested includes emails sent and received by Paul Savage from both any work email address and any home address, if the subject matter is work (and forestry) related. Please provide a schedule of records with the decision.”
2. On 17 December 2024, the Department refused the request in its entirety, citing, as the basis for the refusal, article 6(1)(d) and article 9(2)(a) of the AIE Regulations. It stated that the decision-maker contacted the appellant on 3 and 10 December 2024 requesting that the appellant narrow the scope of the request as it was, as formulated “too general in manner.” The appellant did not respond. The request was then refused under article 6(1)(d) of the AIE Regulations. Furthermore, the request was deemed manifestly unreasonable having regard to the range and volume of the information sought. The individual named in the request would be required to search through his personal and work emails to search for all forestry-related emails and then determine whether they related to environmental information; “given the breadth of the individual’s remit in the Department, the undue burden this would place on him, including the impact on his core duties, which given the seniority and wide-ranging importance of his role, would not be in the public interest and is manifestly unreasonable have regard to the range of information sought.”
3. On 18 December 2024, the Appellant sought an internal review of the Department’s decision and requested that the Department provide a figure for the approximate number of records it was estimated the request would yield.
4. On 14 January 2025, the Department issued its internal review decision refusing access to the records on the basis of reasoning similar to that contained in the original decision but specifically citing article 9(2)(b) of the AIE Regulations, in addition to articles 9(2)(a) and 6(1)(d) already cited. It stated that it was not possible to provide an estimate of the number of records as the appellant had failed to narrow the scope of the request. In relation to the public interest test under articles 10(3) and 10(4), the decision-maker stated that the factors in favour of release of the information are “the making available to the public, where practical and allowed under the law, in a transparent manner, information affecting the environment.” The factors against release of the information are “that it is too much for one person to review email inboxes when a request is too general in manner and manifestly unreasonable.”
5. The appellant appealed to my Office on 21 January 2025.
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. 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 Department’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Department to make available environmental information to the appellant.
9. The internal review decision cited article 9(2)(b) of the AIE Regulations, in addition to articles 9(2)(a) and 6(1)(d) cited in the original decision. The Department’s most recent submissions stated that the decision was refused under Article 9(2)(b) of the AIE Regulations taking into account Article 7(8) of the AIE Regulations. While the Department’s most recent submission does not mention article 9(2)(a) as a basis for refusal, this was mentioned at internal review stage and is dealt with in this decision for the sake of completeness. The scope of this review, therefore, is to determine whether the Department was justified in failing to provide access to the requested material on the basis of article 9(2)(a) of the AIE Regulations in conjunction with article 6(1)(d) and article 9(2)(b) of the said Regulations taking into account article 7(8) of the AIE Regulations and, if necessary, having regard to article 10 of the AIE Regulations.
10. The appellant, in her submission of 21 January 2025, stated that if the Department do not know how many results her request is likely to cover, the request cannot legitimately be refused as manifestly unreasonable under article 9(2)(a) of the AIE Regulations. Similarly, in relation to article 9(2)(b), she strongly disagrees that the request can be refused on the basis of being formulated in too general a manner, particularly, in circumstances where she has not been provided with an estimate of the number of records likely to be covered by the request.
11. The Department, in its submissions of 15 December 2025, stated that the request was refused under Article 9(2)(b) of the AIE Regulations taking into account Article 7(8) of the AIE Regulations. It reiterated that the appellant was asked on two occasions to narrow the scope of her request. It said that, as she did not do this, she failed to state in a manner which was “as specific as possible, the environmental information that is subject to the request” as required under Article 6(1)(d) of the AIE Regulations. She was advised that her request, as formulated, was worded in too general a manner for an effective and timely search of the records to be conducted.
12. Furthermore, it stated that the appellant’s request is similar in nature to the request in Ms X and Coillte Teoranta (Case number: OCE-154995-M4Z8K4 and OCE-155008-D4Q8H6) where the request was refused on the basis that it was not specific enough. The Department said that, in the present case, that the appellant sought emails on “forestry matters” without specifying the environmental information sought and it is not the function of the Department “to speculate as to the requester’s intentions or to trawl through emails to identify environmental information that may or may not be the information that the requester is seeking. A broad term like forestry matters, could encompass many different spectrums.” It said that “a request for a certain category of information contained within said emails may have been sufficient to allow the ASG conduct a focused search” but if it were “to undertake this vague, broad request then they may be setting a precedent to undertake any such vague, broad requests”; potentially a similar request could be submitted for every individual day in a calendar year for any staff member and that would produce a huge administrative burden on the Department and have an impact on its core functions as well as its ability to process AIE requests in a timely manner.
13. Furthermore, it stated that the Assistant Secretary has a broad remit covering different areas including Forestry, Market Supports and Ireland Rural Development Programme and the lack of specificity of the request would hamper the search for relevant information.
14. With regard to the requirement under Article 10 of the AIE Regulations to weigh the public interest served by disclosure against the interest served by refusal, it stated that refusal was justified to ensure AIE requests can be processed as efficiently as possible and the appellant’s request “would result in an unjustified expenditure of time and resources” so much so that it would be “unduly onerous” and affect the day to day administration of the Department and “the Assistant Secretary General in his core work.”
15. It was also noted that the appellant supplied two responses to emails sent by the Assistant Secretary General on the day specified in the request. The Department was, however, unable to locate these emails and that it appeared it did not receive these emails but, in any event, “the question posed was outside the scope of the request.”
16. Article 9(2)(b) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request remains formulated in too general a manner, taking into account article 7(8). Article 9(2)(b) seeks to transpose Article 4(1)(c) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is formulated in too general a manner, taking into account Article 3(3), and, in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.
17. Article 9(2)(b) must be read alongside article 10 of the AIE Regulations. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
18. Article 9(2)(b) of the AIE Regulations, which mirrors Article 3(3) of the AIE Directive, provides that a request may be refused when it is“formulated in too general a manner, taking into account article 7(8)” . Article 7(8) of the AIE Regulations provides that where a request is made by the applicant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request, invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request.
19. I am satisfied that the Department has demonstrated that it has complied with the second limb of article 9(2)(b) of the AIE Regulations, having contacted the appellant on two occasions with a view to refining the request and offering assistance in that endeavour, within the prescribed timeframe. The question that remains to be considered is whether it has justified refusal on the basis of the first limb, namely on the basis that the request was formulated in too general a manner.
20. It does not appear to me that the request has been formulated in too general a manner. The request has been specifically time-limited to one day only; namely Thursday, the 11th of April 2024. The request also sets out the subject-matter of the request: forestry-related matters. Further, the request relates to correspondence held by one individual role holder in a single form of communication (email). As the Department has referred to, the Assistant Secretary General has responsibility for a number of areas, not limited to forestry. The request has, therefore, set out the specific topic to which the request relates, thereby largely ruling out information on other areas for which the Assistant Secretary General has responsibility. Given the specific time limited nature of the request in conjunction with the fact that the request relates to a specific subject matter, I am not persuaded by the Department’s arguments that the request has been formulated in too general a manner.
21. While the Department, in its submissions, compared the request to the requests in Ms X and Coillte Teoranta (Case number: OCE-154995-M4Z8K4 and OCE-155008-D4Q8H6), I consider that that case differs from the present case as, while the appellant had limited the request to a specific timeframe, the request had not been limited to a particular topic or area of information. It was noted in that decision that “no specification is made in either request regarding the subject matter or category of information that is sought.” (paragraph 23) Each case will, in any event, turn on its own individual facts and circumstances.
22. The Department also referred to decision CEI/15/0018 . This affirmed a decision by a Department to refuse part of a request on the basis of article 9(2)(b) of the AIE Regulations because,inter alia , the requester“did not specify any relevant subject matter” . The Commissioner noted that an individual might have a particular subject matter in mind when submitting a request, but it is not the job of a public authority to“read between the lines, or to guess” . In the present appeal however, the appellant, as referred to, has specified forestry related matters as the subject matter of the request. As such, there is no need to speculate on the subject matter the appellant had in mind when submitting the request. A specific category of information has been requested which should enable the Department to carry out a search of emails spanning a short and definite timeframe, relating to that topic.
23. While concern has been expressed about precedential effect of allowing the appellant’s request, I would point out that each case is considered on its own facts and, in any event, the concerns expressed relate to a hypothetical scenario and my role is to consider the facts of the appeal before me.
24. From all the foregoing, having considered the wording of the request and the nature of the information sought, I do not consider that the request is formulated in too general a manner as would justify refusal of the request under article 9(2)(b) of the AIE Regulations.
25. Article 9(2)(a) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. This provision seeks to transpose Article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and, in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.
26. Article 9(2)(a) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
27. As discussed in the context of article 9(2)(b) of the AIE Regulations, public authorities are required to assist an applicant to reformulate a request where appropriate. In this case, the appellant was asked twice to reformulate the request but did not do so. A requester’s unwillingness to engage with a public authority is not, in and of itself, a basis for refusal under article 9(2)(a) of the AIE Regulations. I have already concluded that the request was not formulated in too general a manner.
28. The European Commission’s First Proposal for the AIE Directive envisaged that the exception in Article 4(1)(b) would cover requests “variously described in national legal systems as vexatious or amounting to an abus de droit.” It noted that “compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. Public authorities should be able to refuse access in such cases in order to ensure their proper functioning.” The Aarhus Convention Compliance Committee (ACCC) has emphasised that “whether or not a request is manifestly unreasonable relates to the nature of the request itself, for example, its volume, vagueness, complexity or repetitive nature, rather than the reason for the request, which is not required to be stated.” (Report adopted on request for advice by Belarus, ACCC/A/2014/1, paragraph 28).
29. In respect of a request which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, it is clear that a request is not necessarily covered by the “manifestly unreasonable” exception just because it is voluminous or complex. Both article 7(2)(b) of the AIE Regulations and Article 3(2)(b) of the AIE Directive specifically envisage that public authorities will deal with voluminous or complex requests, albeit in a longer timeframe. I further note the parallel duty in Article 7(1) of the AIE Directive to ensure that public authorities organise environmental information with a view to its active and systematic dissemination to the public, and article 5 of the AIE Regulations which seeks to implement that provision. In his Opinion in C-217/97 Commission v Germany at paragraph 30, Advocate General Fennelly stated that the duty in Article 7 of the AIE Directive indicates that individual requests should, in principle, be on matters of detail. Accordingly, the fact that a request is detailed does not mean that it is necessarily unreasonable.
30. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, I must examine whether responding to the request would involve the public authority in disproportionate cost or effort, or would obstruct or significantly interfere with the normal course of its activities. In light of the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission, at paragraphs 101-115, I consider that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request. I expect that if a public authority wishes to rely on the manifestly unreasonable nature of a request, that public authority will clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.
31. It is also important to bear in mind article 5 of the AIE Regulations and Articles 7 and 3(5) of the AIE Directive, which place duties on public authorities to organise and actively disseminate environmental information, to support the public in seeking access to information and to put practical arrangements in place to ensure the effective exercise of the right to access environmental information. It is not within this Office’s powers to examine the implementation of article 5 of the AIE Regulations or article 7 of the AIE Directive by public authorities. However, I am satisfied that the exemption in article 9(2)(a) is not intended to endorse any failure by a public authority to comply with its duties to organise and disseminate environmental information under those provisions. Furthermore, in every case, regard should be had to the purpose of the AIE Regime, as reflected in Recital 1 of the Preamble 6 to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment.” Accordingly, in cases involving article 9(2)(a) this Office may consider whether the information requested is the kind of environmental information that one would expect to be organised by the public authority in a manner that enables its easy dissemination.
32. Furthermore, the public authority should demonstrate that the request would obstruct or significantly interfere with the normal course of its activities. The administrative burden placed upon them must be “particularly heavy” (T-2/03 Verein für Konsumenteninformation v. Commission, at paragraphs 101-115) and the actual and specific impact must be set out. Article 10(4) of the AIE Regulations stipulates that exceptions under the AIE Regulations shall be interpreted on a restrictive basis, having regard to the public interest served by disclosure.
33. Having regard to the exceptional nature of refusal on the grounds of article 9(2)(a) of the AIE Regulations, the Department has not demonstrated that the request would significantly interfere with the normal course of its duties. It has not set out how the request would specifically impact the functioning of the unit. While the Department has stated that it would involve the Assistant Secretary General in reviewing emails on a specific topic and, given the seniority of his role, this would have an impact on his core duties, no reason has been presented that this task could not be delegated to another member or members of staff. Furthermore, the request has been strictly time-limited to emails for one day on a specific topic and I am mindful that the exception in article 9(2)(a) is only available, on an exceptional basis, where the administrative burden entailed by dealing with the request has been demonstrated to be particularly heavy. Accordingly, I am not satisfied that the Department has demonstrated that the threshold for article 9(2)(a) of the AIE Regulations has been met.
34. Furthermore, article 7(2)(b) of the AIE Regulations and article 3(2)(b) of the AIE Directive provide that a public authority may extend the time for providing the information sought under an AIE request where the information cannot be provided within one month due to the “volume and complexity” of the information sought. The Department did not seek to invoke this provision in order to extend time for dealing with the request.
35. Having found neither article 9(2)(a) nor article 9(2)(b) apply, it is not necessary for me to consider the public interest balancing exercise provided for by article 10(3) of the AIE Regulations. I note the Department referred to the public interest balancing test as required under articles 10(3) and 10(4) of the AIE Regulations. There was, however, a lack of specific detail in relation to the information at issue, and, in any event, it was premature as the Department has failed to demonstrate that the requirements of articles 9(2)(a) and/or 9(2)(b) have been met in this case in the first instance.
36. In the present circumstances, the most appropriate course of action is to annul the Department’s decision and to direct it to carry out a fresh internal review decision-making process. I note that directing release of the information is not an appropriate course of action at this stage as information relevant to the request has yet to been identified and consideration has not been given as to whether any AIE exemptions under article 8 or 9 are applicable, subject to the public interest balancing test provided for in article 10 of the AIE Regulations.
37. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Department’s decision to refuse access to the records sought under article 9 of the AIE Regulations. I direct the Department to carry out a fresh internal review decision-making process in respect of those records.
38. 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