Cinneadh
Ms Y and Office of the Ombudsman
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-156723-H3R7G3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-156723-H3R7G3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
The Commissioner affirmed the OMB’s decision that no further information relevant to the request is held by the OMB. He also noted that he expects the OMB to work with the appellant to ensure that she has an accessible version of the records.
03 November 2025
1. On 25 November 2024, the appellant contacted the Office of the Ombudsman (the OMB) seeking, under the AIE Regulations, all correspondence held by the OMB relating to a previous case she had with the OMB, OMB-151377-H9N9T0.
2. The OMB issued its original decision on 19 December 2024, granting the appellant access to records held by the OMB in respect of the closed case OMB-151377-H9N9T0. The decision maker noted that documents which the appellant submitted where not included in the records released, and also that internal communications were being refused under article 9(1)(d) of the AIE Regulations.
3. The appellant requested an internal review on 2 January 2025, noting that the OMB had refused information under section 9(1)(d) and she queried how intellectual property rights was in any way related to her case.
4. The OMB issued its internal review decision on 6 January 2025. In the first instance, the OMB’s internal review varied the original decision. The OMB noted that an error had been made in referencing article 9(1)(d) and that the decision to not release the referenced internal communications was in fact made under article 9(2)(d) of the AIE Regulations. Article 9(2)(d) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure.
5. The OMB also had follow up correspondence with the appellant on 22 January 2025. The appellant was unhappy with the internal review decision and following discussion with the OMB, it was agreed that the initial decision to not release the communications between the OMB and the Council, which was initially refused in the OMB’s decisions, would be overturned due to a lack of public interest to refuse access. The OMB noted in that regard, “the initial decision was varied and all records of internal correspondence between the Office of the Ombudsman and the body in question were released to [the appellant]”.
6. The OMB referenced further communication it had with the appellant, where the appellant appeared to be querying records from different previous complaints made to the Office. The OMB clarified a number of issues raised by the appellant and noted the following in relation to the closed case at issue for this AIE request:
“The only records which have not been released were your own correspondences with this Office, via email, in relation to complaint OMB-151377-H9N9T0. The decision not to release those records was communicated to you in the original AIE decision on that case. I have spoken to the Officer who dealt with your request and her reason for not releasing said records was simply that they were your own emails which you would already have a copy of”.
7. The appellant subsequently submitted an appeal to this Office on 20 February 2025.
8. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the OMB and the appellant as outlined above and to correspondence between my Office and both the OMB and the appellant on the matter. 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)
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Preliminary Matters
10. A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law at the time of this decision.
11. 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.
12. In this case, the OMB’s original decision granted the appellant access to a number of records relevant to her closed case OMB-151377-H9N9T0, and refused certain documents noted as internal communications under article 9(2)(d). This was referenced as article 9(1)(d) in error which the OMB rectified at its internal review. Following discussion with the appellant, the OMB overturned the article 9(2)(d) refusal and these records were released to the appellant.
13. In her appeal to this Office, the appellant contended that the OMB still held further records relating to her closed case OMB-151377-H9N9T0.
14. Accordingly, the scope of this review is to determine whether the OMB was justified in refusing access to the requested information under article 7(5) of the AIE regulations on the grounds that no further information relevant to the request is held by the OMB.
15. In her statement of appeal to this Office dated 20 February 2025, the appellant contended that the OMB refused to return various records which had been submitted in August 2024 and during the investigation, and also that the OMB did not return any internal communications within the OMB.
16. The OMB provided a submission to this Office on 27 March 2025. The OMB submitted that, in this case, the initial decision following the appellant’s AIE request released all documents on file except for communications between the OMB and the complainant, and communications between the OMB and the Council.
17. The OMB set out that the reasoning for the initial decision maker not releasing the communications between the OMB and the appellant was that from an operational perspective, requesting these records was considered to be manifestly unreasonable. In addition, the OMB noted the following:
“Taking time to gather and schedule records and information that [the appellant] had provided to [the OMB] in the first instance (ie. the documents came from [the appellant] initially ie. they already have access to them), was not considered an effective or efficient use of resources
[…] we have no issue releasing the content but it was an operational decision. Now that all records have been gathered and scheduled and numbered anyway, we have no issue with them being released”.
18. The OMB also addressed the review of the initial decision, wherein a typo was corrected in the refusal to article 9(2)(d) relating to internal communications rather than 9(1)(d) which was noted in error.
19. The OMB submitted that following further discussion with the appellant it was agreed that the refusal under article 9(2)(d) would be overturned. The OMB added that these records were subsequently released to the appellant and that a letter clarifying the varying of the decision was issued to the appellant. The OMB also set out further concerns from the appellant in its submission which I have considered.
20. The OMB’s submission also noted the following in relation to records which were not released to the appellant:
“[…] the decision not to release any record was based purely on operational considerations. The documents concerned were all documents that [the appellant] had already owned, received or had access to. This has been explained to [the appellant] clearly. In that regard, from a resource point of view, it was not considered necessary or indeed reasonable to spend additional time and resources scheduling such documents, extracting them from our CRM and numbering them for release. For clarity, this Office has no objection to these documents or their content being shared with the complainant, as the work has now been done”.
21. In this case, the appellant contends that the OMB should hold further information relevant to his 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 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. In order for article 7(5) to apply, this Office must be satisfied that the OMB has taken adequate steps to identify and locate all relevant environmental held by it. This Office’s approach to dealing with this type of case is to assess whether 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 is applied.
23. 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.
24. It is important to note that where a public authority refuses a request for records under article 7(5) of the AIE regulations, the question we 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. It is also important to note that we do not generally expect public authorities to carry out extensive or indefinite general searches for records simply because an appellant asserts that more records should or might exist or rejects a public authorities explanation of why a record does not exist. The test in article 7(5) is whether the public authority has taken all reasonable steps to locate the record sought.
25. On review of this case, the Investigator noted the OMB had indicated in its submission of 27 March 2025 that it had additional records which had been identified but these had not yet been provided to the appellant from an operational perspective. These consistent of emails with the appellant herself. The Investigator also noted the OMB’s position that it had no issue releasing this content as at that point it had been gathered, scheduled and numbered. On that basis, the Investigator contacted the OMB asking for it to arrange for all outstanding records to be provided to the appellant.
26. The OMB released a Fileshare to the appellant on 5 June 2025 and confirmed that this would allow the appellant to access all of the files relevant to her request. Following this there was a series of correspondence with the appellant to address some issues she was having with accessing the information. The OMB engaged with the appellant to rectify these issues.
27. The appellant was informed by the OMB that the Fileshare supplied to her should be accessible for 3 months. The OMB also informed the appellant that should she try to access the data after that point unsuccessfully, to inform them and they would be in a position to open it again at that point.
28. As outlined above, a review by my Office is considered to be de novo, which means that it is based on the circumstances and the law at the time of my decision. This approach has been endorsed by the decision of the High Court in M50 Skip Hire Recycling Limited v the Commissioner for Environmental Information 2020 IEHC 430 .
29. Having considered this case and reviewed all the relevant information above, and in consideration of the fact that a review by this Office is de novo, I am satisfied that the OMB has taken reasonable steps to identify all relevant information held by it in relation to the appellant’s request and that article 7(5) of the AIE Regulations applies. I am satisfied that further relevant information has been released to the appellant, and the appellant has not contended that any additional information should be released in relation to her request. I would note that it is also open to the appellant to make a new AIE request to the OMB, should she consider it necessary to do so.
30. Accordingly, I will affirm the OMB’s decision in this instance on the basis that I am satisfied the OMB has taken reasonable steps to identify all relevant information and, while I note the appellant has had difficulties accessing the information, I am satisfied that it has been released to her. I expect the OMB to work with the appellant to ensure that she has an accessible version of the records.
31. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the OMB’s decision.
32. 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