Cinneadh
Mr. F and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150106-X5H5Y2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150106-X5H5Y2
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 November 2025
1. On 22 April 2024, the appellant submitted a request to the Department for the following:
“1) Information relating to the reasons why Coillte felling licences do not undergo EIA [Environmental Impact Assessment] Screening when Private felling licences do.
“2) A copy of the Standard Operating Procedure used by staff in carrying out EIA Screening for felling licences.
“3) Any guidance (formal or informal) given to Forestry Inspectors carrying out EIA Screening of felling licences
“4) All information related to the rationale for the responses on the EIA Screening Form for TFL00911823 in respect of the cumulative impact of the application.
“Please interpret this request broadly.”
2. On 17 May 2024, the Department issued it first instance decision, purportedly part-granting the request by way of providing narrative responses from two subject-matter experts to each of the four parts of the request and citing the text of article 7(5) of the AIE Regulations. On the same day, the appellant requested an internal review of the decision, asserting that the subject matter experts had not provided evidence of searches carried out for relevant information and that“therefore the request has not been completed in conformance with the Regulations.”
3. On 11 June 2024, the Department issued its internal review decision, varying the decision maker’s decision of 17 May 2024 and refusing the request“as no records exist in relation” to it.
4. On 26 June 2024, the appellant brought an appeal to this Office and provided preliminary submissions.
5. I am directed by the Commissioner to carry out a 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”).
6. 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.
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.
8. I note that in its original decision, the Department purported to “part-grant” the request, even though no records were provided to the appellant but rather narrative responses to each of the four parts of the request. It also cited the text of article 7(5) of the AIE Regulations, which provides that a public authority shall refuse a request if the information requested is not held by or for it, but without explicitly stating that a search for relevant information had identified none. The internal review decision was to “vary” the original decision by relying on the fact that no records existed in relation to the request. I am satisfied that the correct course of action for the Department would have been to rely on article 7(5) explicitly in the original decision, as the result of the searches it identified in that decision as having been carried out produced no tangible records to provide to the appellant. Its stated part-granting of the request by providing narrative responses of subject-matter experts was not the provision of records, that is, of information held by or for it within the meaning of article 3(1) of the AIE Regulations and was an unfortunate misapplication of the term “part-granting”. In this context, the internal review decision to “vary” the original decision was, in effect, to affirm what should have been the Department’s explicit reliance on article 7(5) as, having carried out searches, its position was that it had identified no information that was relevant to the request. Accordingly, the review of this appeal is to determine whether the Department was justified in relying on this article to refuse the request.
9. 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.
10. In its original and internal review decisions, 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 search steps were undertaken to locate and retrieve the requested information:
| A digital search of the Departmental database, iFORIS, for specific records using search criteria TFL00911823 | x |
| A digital search of the Shared Inboxes (Section inboxes) both in Inboxes and Sent Items, using search criteria TFL00911823 | X” |
The decision-makers went on to explain, textually as follows (the bold text narrative is a replication of the four-part request):
“Following these search steps, I consulted with Subject Matter Experts [Officer X] (Inspector Grade 1) and [Officer Y] (Forest Service Inspector), on the issues you raised and they have confirmed as follows:
1. 1. I wish to request: 1) Information relating to the reasons why Coillte felling licences do not undergo EIA Screening when Private felling licences do. Response: It is the position of the Department that clear-felling and replanting an already established plantation forest is a standard operational activity and does not involve an activity or project that falls within the specified categories of forestry activities or projects subject to the requirements of the EIA Directive, as transposed and set out nationally in Schedule 5 Part 2 of the Planning and Development Regulations 2001, as amended, and in Regulation 13(2) of the Forestry Regulations 2017 (and wherein relevant national mandatory thresholds and criteria for EIA are also prescribed).
2. 2) A copy of the Standard Operating Procedure used by staff in carrying out EIA Screening for felling licences. Response: There is no copy of the Standard Operating Procedure used by staff in carrying out EIA Screening for felling licences.
3. 3) Any guidance (formal or informal) given to Forestry Inspectors carrying out EIA Screening of felling licences Response: As EIA is not a requirement for clearfelling and reforestation no guidance (formal or informal) given to Forestry Inspectors carrying out EIA Screening of felling licenses.
4. 4) All information related to the rationale for the responses on the EIA Screening Form for TFL00911823 in respect of the cumulative impact of the application. Response: Cumulative impacts are dealt with in the Combination Assessment Reports. In this regard no impacts were found. Response: AN EIA report was generated for TFL00911823 but is not subject to the requirements of the EIA.”
11. In addition, in its internal review decision, the Department gave the appellant further detail in respect of the process it had followed in order to respond to the request, as follows:
“Subject Matter Experts [Officer X] (Inspector Grade 1) and [Officer Y] (Forest Service Inspector) were consulted about the four points you sought AIE information about. As there were no physical records to issue the points were addressed by our forestry experts. No physical records exist in relation to your request, so I am refusing it under AIE [Regulations article] 7(5).”
12. In submissions to this Office, the Department added that, as“was explained within the original request decision letter … intricate searches were executed, a digital search of the departmental database, iForis and a digital search of the shared mailboxes using the criteria TF00911823…. Further to this, a consultation was conducted with experts, [Officer X] and [Officer Y]”, following which the appellant’s request was forwarded to them and their responses were provided.
13. During the course of the review of this appeal, the Department provided clarifications to this Office in response to focussed queries relating to various aspects of the request.
14. The clarifications stated that the responses and explanations of Officers X and Y“for why records don’t exist are detailed in the [Department’s] decision documents (initial and internal review)…as felling licences are not subject to the EIA process, there are no records relating to the cumulative impact assessment regarding EIA for TFL00911823…cumulative Impacts (or in-combination impacts) are assessed during Appropriate Assessment Screening through production of an in-combination assessment report…This is an entirely separate process to EIA.”
15. Further, that“the information requested by the requester does not exist…the Department does not hold EIA documents/information as requested…Felling licences, both Private or Public, are not subject to the EIA (Environmental Impact Assessment) process and as such there are no records relating to this process.”
16. The clarifications went on to make the following points:
(i) In respect of part 1 of the request,“the SME’s [subject-matter experts] in this case have provided the reasoning…which clarifies why no records exist…the assumption that reasoning is held by the Department is incorrect.”
(ii) In respect of the other parts of the request, it was stated that,“As the 4 [parts of the] request…are inherently linked and are read as such, the responses and clarifications provided by the Department are formatted in a similar manner. The assumption [in part] 1 [of the request] is incorrect. Reasoning provided by the Department in the decision letters explained why this is the case…[From] the clarifications on [part] 1 [in] the Decision letters…it follows that no records would be present for the subsequent 3 [parts]. This is confirmed by the rationale provided by the SMEs in this case.”
(iii) In a similar vein, in respect of part 3 of the request, the Department’s clarifications state that, as the initial assumption in part 1 of the request that a particular process is undertaken by the Department is incorrect,“a request for ‘any guidance’ on this process would not logically produce any records.”
(iv) In respect of part 4 of the request, the clarifications explained that“an in-combination statement is produced as part of the Appropriate Assessment process, this in entirely separate to the EIA screening referred to in part 4 of the initial AIE request. While the information contained in relation to in-combination for TFL00911823 is not related to the specific request, it is publicly available online on the Forestry Licence Viewer.”
(v) The clarifications reiterated the point that in this particular case the primary assumption of the appellant on the existence of records is incorrect and that the explanation provided by Officers X and Y constituted the Department’s reasoning as to why searches for records which are not kept, for a process that is not followed, would not exist.
(vi) Finally, the Department made reference to a previous decision of the Commissioner (OCE-147884-V2F2H6) which relied on the intimate knowledge of subject-matter experts of an area of expertise to determine why records asserted to exist in that case by the appellant did not exist and why searches for such records would be redundant.
17. For his part, in his internal review request, the appellant stated the following:
“Can you please inform the subject matter experts that the AIE Regulations are not a question and answer process. They are required to provide evidence of the searches that they have undertaken in order to identify information falling within the scope of my request. They have not done so and therefore the request has not been completed in conformance with the Regulations.”
18. As well as making preliminary submissions, the appellant has made observations on the submissions and clarifications made to this Office by the Department. What follows is an amalgam of his various observations in relation to points made by the Department in those submissions and clarifications.
19. In respect of the digital search of the shared inboxes indicated to have been conducted by the Department using search criteria TFL00911823, the appellant indicated that it was not clear to him why the Department’s AIE team had restricted its searches to TFL00911823 when his request was much broader in its scope and that he“did ask DAFM why they had applied such restrictive search criteria”.
20. The appellant further stated that he was not assured that all information falling within the scope of his request had been identified, asserting that the Department had“failed to demonstrate that all reasonable steps have been taken to identify the full suite of records” requested.
21. Further, he addressed the responses to each part of his request that had been provided by the subject-matter experts in the Department’s decision letters, submissions and clarifications, as follows:
“The fact remains that [the Department] do carry out EIA Screening for private felling licences. The response deflects from the AIE request and does not actually address it. No evidence has been provided of any searches undertaken for the requested information.” The Department, he asserts,“cannot deny that Environmental Impact Assessment Screenings are undertaken” as it carries them out “for Private Felling Licences and issues a Determination”, the language of which, he states,“is quite clearly the language of the Environmental Impact Assessment Directive.” Further, he states that the Department“is trying to deny the basic premise of my request on the basis of a position that flies in the fact of facts. It is not relevant [that EIA] Screening is required or not – the fact is that it is undertaken” . Finally, he is of the view that,“If the [Department’s] response to [part] 1 is not justified the responses to the remainder all fail.”
“Again, the fact remains that [the Department’s] staff carry out EIA Screenings for private felling licences. No evidence has been provided of any searches undertaken for the requested information. A requester should not have to rely on assertions.”
“I accept that the information may not exist but there is insufficient detail given as to how DAFM addressed locating the information requested.”
“Again, the fact remains that DAFM staff carry out EIA Screenings for felling licences. No evidence has been provided of any searches undertaken for the requested information. A requester should not have to rely on assertions.
“It is quite feasible that guidance has been given to the Inspectorate in general or individual Inspectors, via correspondence.”
“The AIE Regulations are not a question and answer mechanism. In Combination Assessment Reports relate solely to Natura 2000 sites. The EIA Directive is much broader in its scope than the Habitats Directive. Therefore the response itself is not adequate.
“An EIA Screening Assessment and Determination are on the file. This goes beyond a mere EIA Report being generated. There is a legal determination that the project does not require an EIA. If such projects are not subject to the EIA Directive the question needs to be asked as to why Screening is conducted in the first instance. That is the part of the root of my request as expressed in Item 1. DAFM have provided no records which explain why this situation applies. I find this odd.”
22. The Department has provided details of searches conducted by it for the requested information, details of which were provided to the appellant and can be seen in the table above.
23. I note that the searches appear, on their face, to have been conducted for information relating to part 4 of the appellant’s request, as reference is made explicitly in the table to the searches“using search criteria TFL00911823” , a reference number that is contained within the text of part 4 of the request. When this was put to the Department by the investigator assigned to the appeal and it was asked if the searches encompassed information relating also to parts 1-3 of the request which do not contain the cited reference number, it replied by saying that, following the searches, Officers X and Y were consulted on the four parts of the request submitted by the appellant, as no“physical records exist in relation to [the] request” . The explanations provided by Officers X and Y in respect of each of the request are detailed above at paragraph 10.
24. I note the Department’s statement in its internal review decision that“[a]s there were no physical records to issue the points were addressed by our forestry experts. No physical records exist in relation to your request, so I am refusing it under AIE reg 7(5).” I will make the comment that I consider it not inappropriate for the AIE unit of the Department to have consulted with Officers X and Y, given the familiarity they possess in their area of expertise, in this case of forestry and of felling licences, in order to assist in the identification of relevant information and the formulation of a response to the request. In ordinary course, a refusal to release information by a public authority under article 7(5) requires evidence of adequate and reasonable searches having been carried out for the information requested. The subject matter experts in this case will have intimate knowledge of the fields of their expertise and will have knowledge of where to search for requested information or, indeed, will know that no location holds the information as it does not exist.
25. In submissions to this Office, the Department, in response to the appellant’s comment in his internal review request that“restrictive search criteria” were used by it, states that the searches conducted“were not restrictive” as, following the carrying out of a search, it referred the request to subject-matter experts to find an appropriate resolution to the appeal, either through further searches or an explanation of why information did not exist.
26. From the Department’s submissions and clarifications, it appears that Officers X and Y, arising from their intimate knowledge of felling licences and/or the EIA screening process, the subject of part 1 of the request, have knowledge that no information relating to this part of the request is held by the Department. I am satisfied that in this case their knowledge that no relevant records exist addresses the appellant’s concern that“No evidence has been provided of any searches undertaken for the requested information” and that it is reasonable in this instance for the Department to rely on the knowledge of the subject matter experts and not to carry out searches.
27. In relation to the part 2 of the request, the Department’s response is clear that no copy of the Standard Operating Procedure exists. This is based on the fact that, again, the subject-matter experts, arising from their intimate knowledge of EIA screening for felling licences, have knowledge that such a document is not held by the Department. Such certainty gives me confidence that the document is not, in fact, held by the Department. As noted by the appellant,“I accept that the information may not exist”.
28. In respect of the third part of the request, the Department is categorical when stating that,“in light of the…clarifications provided by the SMEs” in respect of the first two parts of the request, then“logically” the carrying out of EIA screening of felling licences by forestry inspectors, which it states does not take place, will“produce [no] records.” I am satisfied that this is a reasonable response, given the expertise of the SMEs in their specialist area of knowledge.
29. I note that the Department’s submissions, in respect of part 4 of the request includes a statement to the effect that“[c]umulative impacts are dealt with in the Combination Assessment Reports. In this regard no impacts were found.” While I have no grounds to doubt this statement of the subject-matter experts, it is not a crystal clear statement to the effect that the information requested in this part of the request does not exist or is not held by the Department. Clarity in respect of its meaning would have gone a long way to dispel doubt as to its significance. However, given the Department’s responses, both to the appellant and to this Office in its decision letters and submissions, that it holds no records that might be relevant to any one part of the appellant’s four-part request, I am satisfied that it means that in respect of this part of the request, it does in fact hold no relevant records.
30. 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. 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. This does not mean that they are required ordinarily to carry out exhaustive searches, 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. I acknowledge that considerable work appears to have been carried out by the Department in this case to respond to the request, in particular in the persons of its Officers X and Y and the forestry inspector who provided clarifications to this Office, and that evidence of searches has been provided as well as evidence provided by those subject-matter experts as to why the information requested does not exist. Not only has the Department provided detailed submissions to this Office but also clarifications in response to focussed queries from the investigator in this case. I am satisfied that nothing more can be done by the Department to satisfy the requester, as it has carried out searches and, failing to identify relevant information, has consulted its subject-matter experts in an effort to find the reason why. The explanations of the subject-matter experts provide the answer to that question, which is that it does not exist, for the reasons given.
31. In the particular circumstances of this case, I consider it reasonable to rely on the knowledge of the Department’s subject-matter experts, if they consider that information relating to the request does not exist. In these circumstances the carrying out of further searches would be a redundant exercise and would not be a good use of public resources. This is because if such subject-matter experts, who have intimate knowledge of the field in which they work on a daily basis, as appears to be the case in this instance, affirm that no information of the type requested exists, then to require a public authority in such circumstances to conduct a needless search would be tantamount to requiring it to direct resources to a meaningless and futile task. In the circumstances of this particular case, I am satisfied that the decision letters and the responses from the Department’s various officers address sufficiently the matter of adequate and reasonable searches having been undertaken and the reasons why relevant information was not found, such as to satisfy this Office that the Department holds no information within scope of the request.
32. I acknowledge the strong contention of the appellant in this case with respect to the policy of tree felling licences to which he alludes in his request and in his submissions. It is of no less importance for me to state that it is not a function of this Office to act as arbiter between parties when disagreement arises as to the implementation of any particular policy by a public authority and to resolve such a dispute. Each of the parties in this case holds definitive, opposing views on the existence of the information requested. Whether a particular EU directive applies in one case of tree felling or another or whether an EIA is, or is not required in order to secure a felling licence, such matters are outside the scope of the functions bestowed on the Commissioner. His obligation, upon receipt of an appeal, is to adjudge, in cases where a public authority has refused information on the basis of article 7(5), whether it was justified in doing so, relying on evidence provided by that public authority. While in ordinary course, evidence of adequate and reasonable searches will be a requirement for justifying a refusal, as I have stated in previous decisions (e.g. OCE-147884-V2F2H6 ), where officers of a public authority, namely subject matter experts, who have been charged by that public authority to carry out searches for requested information, affirm, through their intimate knowledge of the subject-matter of the information requested, that for reasons given it is not held by or for the public authority, in such a case I am satisfied that it is not incorrect for the Commissioner to defer to their expertise, acknowledging that the familiarity of the subject-matter experts is more likely than not to be the correct position insofar as existence of the information requested pertains. I note that in such cases, the appropriate course of action is for the Commissioner to defer to subject-matter experts, arising precisely from his lack of expertise in respect of specialist matters with which subject-matter experts have intimate knowledge. This is the case where, on the balance of probabilities, it appears that information requested, despite efforts to identify it, has not been found. A necessary default position in such cases will be to rely on subject-matter experts, when their testimony is provided by a public authority to explain the absence of requested information. I am persuaded in this case, by the statements and reasons given by each of the officers of the Department who have been consulted on the request, that the information requested, more likely than not does not exist and that the Department was justified in refusing the request on this basis.
33. 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.
34. 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