Cinneadh
Mr. F and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-148301-X9R0J2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-148301-X9R0J2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to information requested on the basis of article 7(5) of the AIE Regulations
13 October 2025
1. On 26 February 2024, the appellant submitted a request to the Department as follows:
“Copies of all correspondence between the Forest Service of DAFM and John Kestrel relating to the forestry licencing process and procedures.
“If there is a substantial body of information in the first instance I will be satisfied with a list including the Date; To; From; CC; BCC; Subject Bar and details of any attachments.
“I am aware of correspondence from 2014 so this request covers the full period of records available .
“Please provide a Schedule of Records with your decision.”
2. On 6 March 2024, the Department sought a refinement of the request from the appellant, as it needed“an email address or another way to identify John kestrel, as searching just using the name is initiating zero results.” The appellant responded on the same day, suggesting that the Department “… could ask [a named Department officer, hereinafter referred to as Officer X].”
3. On 22 March 2024, the Department availed of the ground in article 7(2)(b) of the AIE Regulations to extend by up to one month the timeframe within which to provide the appellant with a decision on his request arising from“the volume or complexity of the request” . The Department’s decision-maker explained that due to“the complexity of your request it will not be possible to decide on your request within the standard one-month timeframe...I will therefore notify you of my decision as soon as possible but no later than 25 April 2024.” However, no decision issued by the due date of 25 April 2024. In submissions to this Office, the Department explained that this“was an error” on its part.
4. Notwithstanding the extension applied by the Department, on 26 March 2024, the appellant submitted an internal review request, based on a ‘deemed refusal’, that is, a refusal deemed to have been made by a public authority in respect of a request which has not“been adequately answered” , including by way of the absence of a decision, under article 11(5)(b) of the AIE Regulations.
5. On 9 April 2024, the Department issued its internal review decision, refusing the request under articles 6(1) and 7(5) of the AIE Regulations.
6. On 17 April 2024, the appellant brought an appeal to this Office on the basis of dissatisfaction with the searches for information conducted by the Department.
7. I have now completed my review under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and by the Department. In addition, I have had regard to:
i. the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations;
ii. Directive 2003/4/EC (the “AIE Directive”), upon which the AIE Regulations are based;
iii. 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
iv. 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 I have considered all materials submitted in the course of the investigation.
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. Addressing the appellant in its decision letter on the request in this case, the Department refused the request on the basis that he had“not specified in your request what environmental records you are seeking” and that the request had not been made in accordance with article 6(1)(d) of the Regulations.
10. It is appropriate to note that article 6 of the AIE Regulations addresses the manner in which a request should take, including that it be in writing or electronic form, state that it is made under the AIE Regulations and state“(1)(d) in terms that are as specific as possible, the environmental information that is the subject of the request” . From the correspondence between the parties described above, it is clear that the Department sought specificity from the appellant in respect of the environmental information being sought, its having been of the view that the request was not made in accordance with article 6(1)(d). However, the Department proceeded to apply article 7(5) to the request. I therefore consider that the scope of this review is more appropriately whether the Department was justified in relying on article 7(5) of the AIE Regulations, which it also cited as a ground by which to refuse the request.
11. I note the Department’s application of an extension to the timeframe within which to issue an initial decision to the appellant, and did so, in compliance with article 7(2)(b),“at the latest, before the expiry of” the month from the date of receipt of the request. For the record, I wish to note that I consider it inappropriate for the appellant to have sought an internal review request following the application of the extension by the Department, which had been notified to him on 22 March 2024.
12. As the Department has refused information on the basis that it does not exist following searches carried out by the public authority, it is necessary for me to consider whether it has complied with articles 7(1) and 7(5) of the AIE Regulations. Cumulatively, these articles require public authorities to make available to requesters any environmental information relevant to their requests and, should they not hold such information, to inform requesters of this fact as soon as possible. In cases where public authorities assert that requested information does not exist or is not held by them, in ordinary course a prerequisite to show compliance with these articles is that they have carried out, and demonstrate they have carried out, adequate searches for the requested information.
13. In its internal review decision, the Department informed the appellant of the searches it had conducted to identify information that might be relevant to his request, textually as follows:
“The following searches were conducted as part of processing this request:
| A digital search of the Departmental database, ShareDrive, for specific records using the criteria John Kestrel | x |
| A digital search of the Departmental database, ShareDrive, for specific records with intention[al] spelling errors using John Kestril and John Kestrol | x |
| A digital search of the Departmental database, eDocs, for specific records using the search word John Kestrel | x |
| Direct contact with personnel who may have access to the information that was requested in AIE request i.e. Approvals and Felling Sections | x |
“Searches of the felling and approvals mailbox returned no results using the parameters contained in your request. Contact was also made with [Officer X] following your comment above. [Officer X] conducted searches of his mailbox, shared mailboxes that he has access to, and his personal records. He does not hold any records relevant to this request. “
14. In submissions to this Office, the Department gave further details regarding the searches it had carried out, as follows:
“The requester did not specify in any correspondence the specific environmental information he sought or provide information in his possession that would have assisted our searches.
“[The Department] asked [Officer X] to search his records and he confirmed a NIL response (see checklist attached).” A copy of this checklist, an Excel document, has been provided to this Office, and is explained further below. The Department explained that the extension of one month it had applied to the request under article 7(2)(b) was because “no records could be located or details of who John Kestrel was.”
“On 10.4.24 the requester sent an email directly to [Officer X], attaching the internal review decision and an email that he had in his possession that referenced John Kestrel and asked [if he] could … ‘explain to him who (or what) John Kestrel is’ and that the record [had been] provided to him by [the Department] in 2022.
“[Officer X] asked the AIE unit to convey the following to the requester: ‘I refer to your recent email to [Officer X] dated 10th April 2024. [Said officer] has clarified that the email address “John Kestrel” is his private personal email address which he sometimes uses when working from home to facilitate printing or working remotely, particularly where there may be IT connectivity issues.’
“[The] requester subsequently lodged an appeal with the OCEI.”
15. The submissions went on to the describe the earlier searches it had carried out (see table above) and identified the AIE unit of the Department’s forestry division as the section that had conducted those searches. The author of the submissions went on to describe a further search carried out, prior to the filing of the submissions, as follows:
“Upon preparing this submission I again contacted [Officer X] to ascertain if he may have additional records using this email address. [Said officer] has confirmed that he has no records relating to the forestry licencing process and procedures or between his official work email address and his private email address of ‘John Kestrel’. He has confirmed that he searched his private email inbox under the words “forestry licencing process and procedures” and no records were located.
“He has again reiterated that his private email address was only used to facilitate direct communication with himself when occasionally he had to work from home (this was prior to Covid working from home arrangements - 2014) or access a file. This private email address is not used to directly send files to [Departmental] staff, customers and stakeholders and he has again confirmed a NIL response.”
16. For clarity, the record the appellant“had in his possession that referenced John Kestrel” appears to have been a document he had identified in correspondence with the Department. This correspondence was his internal review request, in which he stated,“[t]he attached [document] may stir a few memories.” This is supported by later correspondence, on 10 April 2024, one day after the internal review decision, in which he stated by email to the Department that“I provided you with a document that indicates correspondence from ‘John Kestrel’ was made to [Officer X] (signed by [said officer]). That information was provided to me in 2022 under [request] AIE 22 624.” It appears to me that, if the document referred to by the appellant on 10 April 2024 as having been provided to the Department was the document attached to his internal review request, submitted on 26 March 2024, then it was by administrative error that this document was not identified and utilised for the purpose of conducting searches by the Department. However, I accept, as advised by the Department, that prior to the suggestion of the appellant on 6 March 2024 that it could seek clarification from Officer X as to the identity of John Kestrel, it expended resources on searches to no avail, as it had no parameters by which to carry out tailored searches.
17. For his part, the appellant expressed misgivings as to the adequacy of the searches carried out by the Department in correspondence with both the Department and with this Office. In the case of the former, on 10 April 2024 he queried why its“searches did not identify that record [the record ‘in his possession that referenced John Kestrel’]. Does that record still exist on the system? If so then there is a distinct possibility that other records have been missed.”
18. In his appeal to this Office, the appellant states his view that“if [Officer X] has been using his private email address to correspond with [Departmental] staff on licencing process and procedure then this information falls within the scope of my request.”
19. He went on to state the following:
“[Officer X] may have deleted correspondence from his own account (although it is not clear what searches [he] undertook of his personal account) but the possibility remains that correspondence still exists in the [Department’s] system.
“There is no evidence that [the Department] ascertained the actual email address of 'John Kestrel' and carried out searches on their systems for correspondence from and to that email address.
“Since [the Department] failed to provide the one record that I am aware of (that was provided to me by [the Department] initially containing the name John Kestrel) it must be assumed that all reasonable searches were not conducted to identify the records concerned, otherwise this record would have been identified. The possibility exists that there are other records which have also not been located.
“I am not satisfied that all reasonable steps have been taken before refusing this request under Article 7 (5) of the Regulations.”
20. The appellant reiterated his views in submissions to this Office, as follows:
“If [Officer X] had a nil return, who did hold the record on file such that it was provided to me under a different AIE request?
“Someone within [the Department] held it on file after the two year deletion period. This raises the possibility of other records still being on file held by parties other than [Officer X] / Kestrel.
“I don't know about the OCEI but I find it odd that a senior member of the Department should be communicating between a private email address and a work email address using an obscure reference email.
“It does raise suspicions of the possibility of integrity issues. It is difficult to see this email as a one off.”
21. The email containing the name ‘John Kestrel’, a communication on which this appeal turns and a copy of which has been provided to this Office, is dated 19 December 2014, has in its subject line the words“Fwd: Forestry Standards and Procedures Manual” , and was sent from an account with the name of John Kestrel to the account of Officer X. According to the copy provided to this Office, it was forwarded two minutes later by Officer X to persons who appear to be his departmental colleagues. The appellant asserts that he was provided with a copy of the email, in response to a separate AIE request, in 2022, but that the email was not identified by the Department for the purposes of the request the subject of this appeal, which leads him to be of the view that adequate searches were not conducted by the Department and that other records relevant to his request may be held by it but have not been released.
22. The Department has provided details of two searches conducted by it for the requested information, one prior to its internal review decision and one prior to its submissions to this Office.
23. Moreover, in the latter, it has indicated that a separate search was carried out by Officer X who, in turn, has provided it with an Excel “checklist” of that search, which produced a NIL return. A copy of that checklist has been provided to this Office and I confirm that it is similar in format to the table of results provided to the appellant in the Department’s internal review decision (see paragraph 13 above). The officer’s checklist, dated 9 April 2024 and signed by him, confirms that no records relevant to the request were found following the searches listed below:
• Check of Paper Records in the area/Unit/Division
• Check of Electronic iFORIS/APEX/shared Directories/eDocs
• Check of Email accounts of relevant staff
• Check of Shared inboxes (Section inboxes) - inboxes/Sent items
• Check of any recordings, webinars, recorded meetings etc.
• Check of any other material that may be relevant
24. 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 his or her request.
25. 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. It is important to note that the obligation on public authorities under article 7(5) is to conduct adequate, that is, reasonable searches in order to respond to an AIE request (my emphasis). This does not mean that they are required ordinarily to carry out exhaustive searches (my emphasis) as to require them to do so would lead to an onerous administrative burden that would hamper them in carrying out their other core functions and duties.
26. Arising from the extensive detail given by the Department in this case regarding the searches it carried out, in addition to the independent search carried out by Officer X, I am satisfied that it has done all it could reasonably be expected to have done in order to identify information that might be relevant to the request and has complied with its obligation under article 7(5).
27. The appellant has made a number of assertions or assumptions which I consider require to be addressed in this decision. The first is that, as the email from Officer X to John Kestrel had been provided to him under a separate AIE request in 2022, and has not been found in the searches pursuant to the request in this case, then the Department has not carried out adequate searches, particularly as Officer X has searched and found no records relevant to the request. The answer to this apparent contradiction lies in the fact that, as advised by the Department, certain records are held by one or other officer for periods of time for particular purposes. While the email in question was one such record, the searches conducted by the Department and by Officer X have confirmed that the John Kestrel email is no longer held by the Department and that no further relevant records are being held by it. Moreover, the Department was within its full right to accept the response from Officer X that, following a search conducted by him, no other records existed. Further, as both the Department and Officer X have indicated that the email account attached to the name John Kestrel was used only“occasionally” to transfer material between the email accounts owned by the same person, and only in 2014, I find that it is not unreasonable that no further records pertinent to the request were found. It is to be remembered that the John Kestrel email account was never used by Officer X to communicate with his departmental colleagues, an assertion I have no grounds to doubt.
28. The appellant asserts that Officer X may have deleted“correspondence from his own account” . It is unclear to me whether the appellant is of the view that no correspondence should ever be deleted. Nevertheless, the fact is that arising from the Department’s data deletion policy whereby records that are more than two years’ old are routinely removed from its systems, save records that are required to be kept, correspondence will inexorably disappear from the Department’s systems. For this reason, there is nothing unusual from my point of view if this is the case and I fail to understand the appellant’s objection.
29. The appellant also takes issue with the fact that the Department may not have ascertained the actual email address of the John Kestrel account and may not consequently have carried out searches for correspondence from and to that email address. However, as indicated above, I am satisfied that the Department has carried out more than adequate searches, as evidenced in its internal review decision and in submissions to this Office. Accordingly, I see no merit in the appellant’s observation.
30. I also note that the appellant could have provided more fulsome information at an earlier stage of the request which may have assisted the Department with processing it. When the Department sought clarification from the appellant at an early stage, his response stating “You could ask Officer X” did not in any way provide clarity as to the information he was seeking. I encourage requestors to engage in a constructive manner with public authorities to ensure that requests can be processed in an efficient manner. This ultimately contributes to ensuring that where a requestor is entitled to access information under the AIE Regulations, this information is released at the earliest stage possible. I also note that where an appellant already holds records that may be of relevance to a request, it would be useful if they were provided to the public authority at the earliest stage possible.
31. I consider that it is not within my remit to comment on the observations made by the appellant on the internal practices of the Department with respect to the use of personal email addresses by Department officials in the course of their duties.
32. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner of Environmental Information, I affirm the Department’s decision on the basis that no information relevant to the appellant’s request was held by it.
33. 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