Cinneadh
Mr F and Forestry Appeals Committee
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-161595-F3D6L1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-161595-F3D6L1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Forestry Appeals Committee (FAC) was justified in refusing access to information requested on the basis of article 7(5) of the AIE Regulations.
23 October 2025
1. On 12 June 2025 the appellant made an AIE request for:
“All information relating to the hearing of this case (FAC120/2024 – CK11FL0108 - this includes any records or notes recorded by members of the Committee and the Secretary during the hearing and any subsequent correspondence (all media) concerning the deliberation before the decision was issued”.
2. On 9 July 2025 FAC issued its original decision, stating:
“Following examination of material held by the FAC administration and the FAC committee that heard CK11-FL0108 I have identified a number of records that I consider to be relevant to your request. However, as these documents are already in the public domain and freely available to you, I do not consider there is need to release any documentation. These documents include
• The FAC decision letter for appeals FAC 120/2024 in relation to licence decision CK11-FL0108, a copy of which was provided to you on 30/05/2025.
• The Department of Agriculture, Food and the Marine documentation in relation to CK11-FL0108, which is available on the Forestry Licence Viewer (https://flv.apps.services.agriculture.gov.ie/). This includes the DAFM statement of fact that was provided to you directly.
I have carried out a search of all physical and electronic documents held by the FAC relating to your AIE request using terms; CK11-FL0108. I also emailed the FAC committee members that decided on this file and asked that they search their physical files, electronic files and emails for all records relating to CK11-FL0108. The only documents that have been identified were the ones listed above. I do not consider that there is any further reasonable search that might be conducted in relation to your request”.
3. On 9 July 2025 the appellant requested an internal review decision.
4. On 6 August 2025 FAC issued an internal review decision, affirming its original decision and reiterating the reasons for same, as per its original decision.
5. The appellant appealed to this Office on 19 August 2025.
6. I have been directed by the Commissioner to conduct 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 Forestry Appeals Committee. 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’).
7. 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.
8. Pursuant to article 7(5) of the AIE Regulations, the scope of this review is to investigate whether FAC has conducted adequate searches in order to locate all records which may come within scope of the AIE request.
9. In his submission to this Office, the appellant states:
“As a basic minimum, it is inconceivable that the Secretary to the FAC did not take notes during the hearing. The decision letter issued by the FAC must have been based on notes recorded during the Hearing. It is also feasible that Members of the FAC made notes during the Hearing. It should be expected that the FAC would produce a transcript of the Hearing for the public record. I accept that this may not have been done in this case, but this needs to be confirmed. The FAC has not demonstrated that all reasonable steps have been taken to identify information falling within the scope of my request. Information on searches is scant and vague. The original decision stated;
‘I have carried out a search of all physical and electronic documents held by the FAC relating to your AIE request using terms; CK11-FL0108. I also emailed the FAC committee members that decided on this file and asked that they search their physical files, electronic files and emails for all records relating to CK11-FL0108.’
This doesn't cover an important part of my request (notes recorded).
My IR request specifically referred to this - "It is inconceivable that the Secretary to the FAC did not take notes during the hearing. “The IR decision maker did not even address this point and has effectively reiterated the original decision in terms of the searches undertaken. I have conducted a thorough search of all physical and electronic records held by the FAC in relation to your AIE request, using the search term CK11-FL0108. Additionally, I contacted the FAC committee members and administration team involved in the decision on this file and requested that they review their own physical and electronic files, as well as their emails, for any documents connected to CK11-FL0108.
It is unclear as to whether or how searches were undertaken for hand-written notes. A previous decision for a similar request released the hand-written notes recorded by the Secretary for the hearing. In the absence of notes, it is questionable as to whether an actual hearing took place. It is unclear as to how and where Members of the FAC hold records related to their function. They do not have specific FAC accounts (which of itself is highly dubious)”.
10. By way of initial submission to the OCEI, FAC provided its original and internal review decision and noted that “This request was refused because all documentation that was sought was already in the public domain”.
11. In seeking further focussed submissions from FAC with respect to the recording of notes at FAC meetings, it stated:
“The FAC secretary provides admin support and records what the Committee asks them to record. There isn’t a standing practice of keeping a hearing record, full minutes or a verbatim transcript at non oral hearings. At the non-oral hearings, it is normal that the secretary would just take a record of the conflict of interests at the start.
Committee members may keep personal notes to help draft the decision. These are working notes only and aren’t part of the official record.
The official record is the FAC decision and anything the FAC asked the secretary to record”.
12. In seeking further details regarding searches undertaken with respect to this AIE request, FAC stated:
“When an AIE request seeks notes or minutes from a specific meeting, we contact each Committee member and the secretary to ask whether they hold any notes/records relating to that meeting.
If a member holds notes, they are asked to provide them to the decision maker; if they do not hold any, they confirm this.
This process was followed for this AIE request. The searches did not identify any notes in addition to the material already in the public domain. Had any notes been identified, they would have been considered and scheduled in the AIE decision”.
13. In this case the appellant contends that the FAC 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”.
14. 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 the 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.
15. 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.
16. In this case FAC have provided information with respect to searches undertaken for further information within the scope of the request at original decision and internal review stage, detailed in paragraph 2. The appellant contends however, that further information should exist with respect to notes taken/transcripts produced at the meeting by the secretary and other members of the Committee. I note that in further correspondence between the appellant and FAC that FAC confirm that meetings such as the one in question are not audio recorded, and transcripts are not produced. I consider this matter dealt with in respect of issues relating to same in the appellant’s appeal.
17. With respect to hand-written notes, further clarification was sought from the Investigator to FAC regarding notes taken at the meeting and any procedure in respect of same, with the response noted in paragraph 11 and 12.
18. 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 authority’s 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.
19. In this case FAC have, in my view, adequately set out its reasons for the non-existence of any further information, taking into account the searches carried out by FAC Committee to for further information in physical and electronic files and in email form, using the search term associated with the FAC meeting. The appellant contends that more information should exist on the basis of his view that the secretary and other members would have taken notes, however it is not my role to establish if notes were taken but rather to be satisfied that all reasonable steps have been taken to identity if any are held by FAC.
20. I am satisfied, given the nature of the information, the records that were released and the search details provided, that FAC 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).
Having carried out a review under article 12(5) of the AIE Regulations, I affirm FAC’s internal review decision.
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