Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146796-Y9H0N8, OCE-147576-L3L1T2, OCE-148902-X5H4K0, OCE-150329-R3V1Z6, OCE-150333-D5J8H4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified under the AIE Regulations in refusing the information sought
27 September 2024
1. Each of these cases relates to a request for environmental information relating to forestry. The appeals were received by this Office between January and July 2024. 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 acknowledge that the volume of AIE requests in relation to forestry issues continues to present a challenge, the Department must be mindful of its duty to provide adequate reasons in first instance decisions where a request is being refused in an effort to reduce the number of appeals received by this office going forward. This Office has a significant backlog of appeals, and it will be impossible to clear this backlog if public authorities do not issue comprehensive and lawful first instance decisions.
5. In OCE-146796-Y9H0N8 the appellant was informed by the Department in the original decision that the scope of the AIE request, as worded, was too large to be acceptable, therefore the request was being refused under Article 9(2)(a) of the AIE Regulations. This was affirmed at internal review stage. It appears from an initial review of the casefile that the Department did not conduct preliminary searches on foot of this request, and made the decision based solely on the wording of the request. I note that the Department did engage with the appellant to suggest he narrow the scope of his request and limit his request to a particular time frame, however it is difficult for a requester to make a decision in relation to a refinement of a request where no information whatsoever has been provided in relation to the volume of records which may be within scope.
6. In OCE-147576-L3L1T2 the Department released three records at original decision stage, informing the appellant that the following searches had been carried out;
• A digital search of the Departmental database, ShareDrive, for specific records.
• A digital search of the Departmental database, eDocs, for specific records.
• A digital search of the Departmental database, APEX, for specific records.
• Direct contact with personnel who may have access to the information that was requested in AIE request.
The appellant requested an internal review, advising the Department of his view that all reasonable steps had not been taken to locate records within the scope of his request. The Department subsequently located and released one further record which was within scope of the original request, while providing no details of further searches which were conducted at internal review stage.
7. In OCE-148902-X5H4K0, the Department released three records which it believed were within scope of the original request. The decision maker informed the appellant that in order to search for relevant information he made direct contact with relevant personnel who may have access to the information requested. No details of any other searches conducted of the relevant filing systems were included, nor any details of the searches conducted by the staff members contacted directly by the decision maker.
8. In OCE-150329-R3V1Z6, the Department refused the request under Article 7(5) of the AIE Regulations on the basis that no records within the scope of the request exist. In relation to searches conducted to locate relevant records, the Department informed the appellant that following contact with subject matter experts, a response of no records available in relation to this request was returned. No further details in relation to relevant searches was included in the decision.
9. In OCE-150333-D5J8H4 the Department again refused the request under Article 7(5) of the AIE Regulations on the basis that no relevant records exist. In the internal review decision, the Department informed the appellant in relation to searches conducted to locate relevant records that “DAFM personnel have confirmed that they have no physical records in relation to your request. The details of which have been outlined to you in the original decision letter”. In the original decision letter, the personal which were consulted have confirmed that they “are not aware” of any relevant records, however it does not appear from an initial review of the casefile that all reasonable steps have been taken to locate relevant records, and no details of any searches conducted have been communicated at any stage of the decision making process.
10. Article 9(2)(a) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, it is necessary to examine whether responding to the request would involve the public authority in disproportionate cost or effort, or would obstruct or significantly interfere with the normal course of its activities.
11. Article 9(2)(a) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
12. In respect of a request which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, it is important to note that both article 7(2)(b) of the AIE Regulations and Article 3 (2)(b) of the AIE Directive specifically envisage that public authorities will deal with the voluminous or complex request, albeit in a longer time frame. The fact that a request is detailed does not mean that it is necessarily unreasonable.
13. 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.”
14. 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.
15. 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.
16. 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”.
17. 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.”
18. 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.
19. On initial examination of the relevant casefiles this Office’s Investigator engaged with the Department to highlight the lack of adequate reasoning contained in the relevant decisions. The Department informed this office that on review of each of the relevant AIE request files that there had been further searches carried out in each case, however the Department acknowledged that details of these searches were not communicated to the appellant and have agreed to review its internal review decisions in each appeal. I acknowledge the cooperation of the Department in this regard.
20. 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. 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, taking the above in to account.
21. 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.
22. 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