Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-154894-B8L4P2 & OCE-154955-T0L3B1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified under the AIE Regulations in refusing the information sought.
28 January 2025
1. Both of these cases relates to a request for environmental information relating to forestry. On examination of the casefiles these appeals have been identified as cases where the reasons provided in the decisions issued by the Department were not sufficient having regard to the AIE Regulations and Directive.
2. I am directed by the Commissioner for Environmental Information to carry out a review of these appeals under article 12(5) of the AIE Regulations. In carrying out my review, 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’).
3. In accordance with article 12(5) of the AIE Regulations, the role of this Office in each case is to review the Department’s internal review decision and to affirm, annul or vary it.
4. While I continue to acknowledge that the significant volume of AIE requests in relation to forestry issues presents a significant administration challenge to the Department, the Department must continue to be mindful of its duty to provide adequate reasons in first instance decisions where an AIE request is being refused. Senior management of the Department must ensure that decision makers are supported in their role and receive adequate training, in addition to ensuring relevant units have the necessary resources to allow the Department to meet its statutory requirements with regard to AIE. Relevant staff across the Department should be reminded of their responsibilities under the AIE regulations, particularly with regard to carrying out adequate searches, communicating details of these searches in relevant decisions, and the duty to give reasons for their decisions. I continue to encourage the Department to be proactive in dissemination of frequently requested material through its open data portal or any other means available in an effort to reduce requests and subsequent appeals. The ongoing cooperation of the staff within the AIE unit of the Department and this Office where decisions of the Department are appealed is welcome.
5. In OCE-154894-B8L4P2 the appellant requested;
• Information which informed the Minister's decision for not including the following recommendation of the conservation authority for the Special Protection Area as part of the licence; “As the site occurs within a Hen Harrier SPA a minimum of 15% of the restocked site should consist of open space suitable for foraging for the species.”
6. The Department refused the request under Article 7(5) of the AIE Regulations and informed the appellant that;
“DAFM currently implement procedures in relation to the Hen Harrier which have been agreed with the NPWS and described in the 2015 publication ‘Hen Harrier Conservation and the Forestry Sector in Ireland’ with later amendment. These procedures focus on disturbance operations within so-called ‘Red Areas’ during the Hen Harrier breeding season, 1st March to 15th August, inclusive. The requirement for 15% open space is set out in DAFM’s Forestry Programme 2023 – 2027 and refers to afforestation and not replanting after clearfell.”
7. In relation to searches which the Department carried out in order to locate information which may be within scope of the appellant’s request, the Decision maker informed the appellant that “following the assignment of this AIE request to me I undertook several searches. Searching emails were sent to Subject Matter Experts Karl Coggins and Kevin Collins.” No further details of these or any other searches carried out by the decision maker or subject matter experts were included at any stage of the decision making process.
OCE-154955-T0L3B1
8. In appeal OCE-154955-T0L3B1, the appellant requested;
• Information on scientific research conducted by or utilised by COFORD on the environmental impacts of wood preservatives used in the forestry sector in Ireland; In particular, the appellant sought;
1) the impacts of the leaching of chemicals from treated fence posts in to soils and aquatic environments - short and long-term
2) assessments of safe buffer zones for use near to aquatic environments
3) impacts on human health of handling treated fence posts
9. The Department refused the request under Article 7(5) of the AIE Regulations as no records within the scope of the appellant’s request were located. In relation to relevant searches which were conducted by the Department in order to locate relevant records which may have been within scope of the request, the appellant was informed that; “Searching emails
were sent to Subject Matter Experts Seamus Dunne, Fergus Moore, Janet Farrell and Robert Windle.” No further details were communicated to the appellant.
10. Following an internal review, the department informed the appellant that the searches conducted on foot of the original request were as follows:
1. Searching email was sent to Janet Farrell (HEO) and cc’d Robert Windle (Forestry Inspector Grade 3) for direction on where to obtain the requested records. A response was received from Janet Farrell stating.
2. A searching email was then sent to Fergus Moore (SI Forestry) and cc’d Seamus Dunne (SI Forestry), subject matter experts as members of the Coford Council. A response was received from Fergus Moore stating, “I am not aware of any such studies as referenced.”
11. No further details were included in relation to the response received in relation to search 1 as set out above. The Department did also inform the appellant that “No records related to the request were found. I am satisfied that adequate searches were completed and no other searches within the scope of your request would produce further records. However, no further details of relevant searches were included.
12. Article 7(5) of the AIE Regulations is the relevant provision of the Regulations when a request is refused on the grounds that a public authority does not hold the information sought, as follows:
“7(5) 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.”
13. In cases where refusal is based on article 7(5) of the Regulations, the reasons for the conclusion that no relevant information is held by or for the public authority should be provided to the appellant. 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. 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. 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.
15. The judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 371 notes that “the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal”.
16. This view aligns with the decision of the Court of Justice of the EU in C-619/19 Land Baden Württemberg v DR. This decision contains some useful guidance in relation to the application of exceptions generally. The CJEU noted in particular, at paragraph 69 of its judgment: “As the Advocate General has observed in point 34 of his Opinion, [the] obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.”
17. It is clear from my review of the relevant decision-making records in each of these appeals that the Department’s decision-making process was not satisfactory having regard to the responsibilities placed on public authorities by the AIE Regulations, therefore it is not possible for the appellant to discern why his requests have been refused.
18. Given the circumstances of the appeals subject to this decision, I am satisfied that the most efficient way to deal with these appeals is to remit each case to the Department for review of the relevant decisions. While it would have been open to me to seek further submissions from the Department in respect of each appeal, I am satisfied that the AIE regime is best served by dealing with these cases in this manner. This Office is facing a significant backlog of appeals, and this is only exacerbated when public authorities do not provide sufficient reasons for their decisions on requests at first instance. This decision therefore annuls the internal review decisions in each appeal and the Department should now issue a new internal review decision to the appellant in each case.
19. Having carried out a review under article 12(5) of the AIE Regulations, I annual the decision of the Department in each appeal. The Department should now issue a new internal review decision in each case.
20. 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