Cinneadh
Mr X and Clare County Council
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-151001-L3J0D8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-151001-L3J0D8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in refusing the appellant’s request.
12 May 2025
1. On 10 June 2024, the appellant requested a planning report which he believed should have existed following the outcome of a planning investigation in relation to file reference UD 24-029.
2. In its original decision dated 25 June 2024, the Council refused the decision on the basis that the investigation was not completed, and the relevant record could not be identified.
3. On 29 June 2024, the appellant requested an internal review of the original decision.
4. The appellant appealed to my Office on 6 August 2024 noting that he failed to receive the Council’s internal review decision.
5. The Council issued its internal review decision on 26 July 2025, but due to a typographical error this did not reach the appellant. Following the intervention of this office, the internal review decision was issued to the correct email address on 5 September 2024.
6. On 26 September 2024, the appellant received an email from the Council’s Planning Department in relation to the outcome of the planning investigation under reference UD 24-029.
7. 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 Clare County Council. 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’).
8. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. 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.
10. Pursuant to article 7(5) of the AIE Regulations, the scope of this review is to investigate whether the Council has conducted adequate searches in order to locate all records which may come within scope of the original AIE request.
11. It is noted that the Council failed to issue the internal review decision to the correct email address within the prescribed timeframe due to a typographical error. However, once made aware of this issue by this office the Council immediately issued the internal review decision to the correct email address. Public Authorities should be mindful when issuing decisions that they are delivered to the correct address within the timeframes prescribed under AIE Regulations.
12. In his original request the appellant stated the following:
“I am requesting the Planning Report from the outcome of the planning investigation relating to file # UD24-029 under the European Communities (Access to Information on Environment Regulations 2007 to 2018.”
13. In its original decision the Council advised the appellant that:
“Following examination of the physical and electronic copies of the file held by Clare County Council, I have been unable to locate any records relevant to your request as this investigation has not yet been completed.”
14. The Council’s internal review decision affirmed this position:
“The original request refers to an investigation. At the time of writing, no timeframe has been agreed for completing the investigation. It is therefore not possible to locate any data relevant to your initial request.”
15. This appeal was assigned to an investigator in February 2025. At this point, the appellant had received the internal review decision and an email in relation to the outcome of the planning investigation.
16. The investigator contacted the appellant to confirm if he was now satisfied with the information provided. The appellant noted that for a planning investigation to have taken place, in his opinion there should have been an inspection report created following a visit to the premises. The appellant was of the opinion that the searches were insufficient as he did not receive any type of investigation report.
17. In this case, the appellant contends that the Council should hold further information relevant to her 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”.
18. 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. What will be considered reasonable will vary from case to case.
19. 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.
20. 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.
21. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also 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.
22. 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, whether at internal review stage or through an appeal to this Office.
23. The investigator wrote to the Council with the appellant’s concerns and with a request for further submissions on the searches carried out to identify any environmental information relevant to the appellant’s request. In this instance, the appellant’s request was narrow in scope as he specifically requested a planning report only.
24. In its submissions the Council cited a lack of resources which lead to the delay in the planning investigation taking place. The Council noted that it issued the appellant with the outcome of a desktop review of the planning complaint file via email on 20 September 2024. The Council confirmed that the file is now closed and at no stage were any further reports referred to or completed.
25. In relation to the searches carried out to identify the information, the Council outlined that it had contacted the relevant department and personnel, that physical and electronic records had been searched and that no reference to any reports within the scope of the request could be found. This reflected its position in the original decision and the internal review decision which found no reports. The email regarding the outcome of the investigation post dated these decisions and therefore fell outside the scope of the searches.
26. The Council confirmed that the information used by it to decide on the outcome of the planning investigation, the email dated 20 September 2024, was information that had been previously provided by the appellant as part of his complaint.
27. In light of the above, I am satisfied that no planning report or outcome to the planning investigation existed at the time of the appellant’s request. Furthermore, the appellant has since been provided with the outcome of the investigation.
28. Having considered the information before me, I am satisfied that the Council has taken sufficient steps to determine that it does not hold further environmental information relevant to the appellant’s original request and accordingly was justified in refusing the request based on article 7(5) of the AIE regulations.
29. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby affirm the decision of Clare County Council.
30. 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