Cinneadh
Mr. F & Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-129110-F0B1H5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-129110-F0B1H5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was entitled to rely on article 7(5) of the AIE Regulations on the basis that the requested information is not held by or for the Department, & Article 7(3) of the AIE Regulations to provide the appellant with information requested in an alternative form or manner
19 September 2025
1. On 18 July 2022, the appellant requested the following information from the Department of Agriculture, Food and the Marine (the Department):
a) A consolidated version of the Environmental Requirements for Afforestation taking account of all amendments made by Departmental Circulars.
b) A consolidated version of the COFORD Forest Road Manual taking account of all amendments made by Departmental Circulars.
c) A consolidated version of the Forestry Standards Manual taking account of all amendments made by Departmental Circulars.
2. The Department issued its original decision on 18 August 2022. It informed the appellant that “the information requested is available to the public ” and noted that “article 7(3)(a)(i) [of the AIE Regulations] refers ”.
3. The appellant sought an internal review on the same date. He advised the Department that he did not consider the information to be “already available to the public in another form or manner that is easily accessible ” as “it would require accessing every circular issued over a period of years and then interpreting the content of the circular to determine whether it is applicable to the relevant documents ”.
4. The Department issued its internal review outcome on 15 September 2022, in which the internal reviewer noted that they had “not found any grounds to reverse the decision made by the initial decision-maker ” and “affirm[ed] their decision that this information requested is already released in the public domain ”. It also informed the appellant that “the Department does not currently collate the information in a manner as stated per your request ” and “would be required to handle these documents accordingly in a similar fashion as you have outlined ”. It went on to conclude that the request “therefore, would in my opinion after review place an unreasonable demand on this Department’s resources and would disrupt this Department’s ability to perform its core functions ”.
5. The appellant appealed to this Office on 28 September 2022.
6. I am directed by the Commissioner to carry out 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 Department. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
7. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
8. My review in this case is concerned with whether the Department is entitled to rely on article 7(5) of the AIE Regulations on the basis that the requested information is not held by or for the Department. While the Department relied on article 7(3) in its decision and internal review decision, I do not consider it necessary to consider this provision in the context of this appeal for the reasons I will set out below.
9. The appellant’s submissions may be summarised as follows:
(i) The appellant submits that it is contradictory for the Department to state on the one hand that the information he has requested is easily accessible and, on the other, that the task of consolidating the information would place an unreasonable demand on the Department and disrupt its ability to perform its core functions.
(ii) He submits that the information requested is not easily accessible if it requires him not only to access each of the circulars which amend the relevant document, but also to interpret the content of each circular and determine if and how each circular amends the documents covered by his request. He submits that there is no standard format for circulars with style and language varying enormously across documents and little or no cross-referencing to proceeding circulars or other relevant documents.
(iii) He submits that forestry licensing is subject to public participation and access to justice and noted that adherence to the standards which are the subject of his request is a condition of forestry licences. He queries how the public can be expected to understand what is permitted by the conditions of a licence if those conditions are not available in consolidated form. He also queries how Department staff implement standards consistently without access to some form of consolidated information.
(iv) He submits that it is reasonable for the public to expect the Department to maintain information on its basic standards in a consolidated form so that they can be understood by potential users which include licensees, the Department Inspectorate, the Forestry Appeals Committee and the general public.
10. The Department’s arguments may be summarised as follows:
(i) The Department considers that the information requested “is available to the public ” and “already released in the public domain ”.
(ii) In response to the appellant’s contention in his internal review request that the information “is not already available to the public in another form or manner that is easily accessible ” as “it would require accessing every circular issued over a period of years and then interpreting the content of the circular to determine whether it is applicable to the relevant documents ”, the Department submits that it does not currently collate the information in the manner request by the appellant and would therefore be required to handle the documents “in a similar fashion as [he had] outlined ”. It argues on that basis that his request “would place an unreasonable demand on the Department’s resources and would disrupt [the] Department’s ability to perform its core functions ”.
(iii) It submits that it “strives to have as much information as possible easily accessible to those who wish to view it”.
(iv) It submits that a consolidation of these records would involve a review of all circulars to review “if anything that concerns this request were mentioned”. It submits that this involves a total of 248 circulars of varying lengths from 2009 to date. It estimates that it would take 12.4 hours to review just the material alone on the basis of a three-minute review of each circular.
(v) It submits that the Environmental Requirements for Afforestation manual would need to be reviewed by a technically trained member of staff to ascertain if any consolidation would be possible.
(vi) It submits that the COFORD Forest Manual would need to be reviewed by a technically trained member of staff to ascertain if any consolidation would be possible. It also submits that it may be the case that to consolidate this record the Department would have to commission consolidation through COFORD at a cost.
(vii) It submits that the Forestry Standards Manual would need to be reviewed by a technically trained member of staff to ascertain if any consolidation would be possible on that record.
(viii) It submits that the information being requested is already publicly available and the methods of how it is available are continuously becoming more user friendly. It argues that “consolidation information like this for individual applications is manifestly unreasonable, vastly time consuming ” and “an extreme strain on resources ”. It goes on to argue that it “sets a precedent that any AIE body or Department would have to potentially consolidate the same information, which is easily accessible already, in any format the requester wishes ”. It argues that this would perpetuate “the already staggering volume of AIE requests being handed by the Department ”.
Article 7(5)
12. In cases where a public authority has effectively refused a request under article 7(5), this Office must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply.
13. 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 my 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.
14. During the course of the investigation the OCEI investigator in this appeal engaged with a forestry inspector within the Department to confirm the basis on which the Department concluded that it does not hold the requested information within scope of the appellant’s request in the form that it was requested in, and that no such information is held by any other person or body on its behalf.
15. In response, the Department submitted the following;
The requester has sought consolidated versions of 3 documents which are regularly referred to in our licencing procedure. In the first instance there is no consolidated version which incorporates periodic circulars with are issued to the trade, and are made available on the Department’s website. As such, and as previously stated in our decisions regarding this request, we cannot provide records which are not held by or for the Department.
The Department issues circulars to registered foresters and stakeholders to inform them of detailed provisions of forestry strategy and policy. These circulars are located on the Department’s website. The circular catalogue is organised by year and numbered in the sequence of release for the year in question, the subject matter is also contained within the individual circular title.
The Environmental Requirements for Afforestation and the Forestry Standards Manual documents were both fully revised last year, in June 2024 and July 2024 respectively.
Both these documents now contain an amendments or document control section which informs the reader of minor changes since the full revision. These documents are available on the Department’s website.
The Department do not produce or hold consolidated versions of the aforementioned documents which includes information contained in the circulars.
16. The Department also submit that “two the above documents are available on the Department’s website. The COFORD Road manual which is referred to (including a web address) in our Forest Road Scheme document is located on the COFORD website ( www.COFORD.ie ). The Circulars are also available on the Department’s website.
1. Environmental Requirements for Afforestation and Forestry Standards Manual - Regulation, Forest Health and Resources
2. COFORD Forest Road Manual – Referred to in: Forest Roads Scheme draft .03.2023 . Located at: ROADMANUAL-COVER
3. Forestry Circulars - Forestry Circulars
17. Following the above clarification the Investigator engaged with the appellant to set out the position of the Department in relation to the lack of existence of the information requested in the required format with a view to informal settlement of this appeal. While the appellant is of the opinion that the requested information should exist in the format requested, he accepted that the information most probably did not exist in the format requested and was not held by or for the Department.
18. In his submission the appellant argues that the information requested is not easily accessible if it requires him not only to access each of the circulars which amend the relevant document, but also to interpret the content of each circular and determine if and how each circular amends the documents covered by his request. He submits that there is no standard format for circulars with style and language varying enormously across documents and little or no cross-referencing to proceeding circulars or other relevant documents. He argues that a teleological interpretation of “easily accessible ” has to mean more than just an ability to access information by finding it on a website and must be understood as requiring accessibility in a manner that permits the requester to access information in a manner consistent with the ability to utilise that information. These arguments are in relation to the Departments reliance on article 7(3) of the AIE Regulations in its internal review decision and initial submissions to this Office.
19. Article 7 (3) can only be considered where a public authority has identified relevant information held by or for it, determined that information should properly be released (i.e. that no exemption provision in article 8 or 9 of the AIE Regulations (subject to article 10) applies), and has then decided to give access to that information other than in the form or manner requested. Further, the AIE Regulations only apply to information that is held by or for a public authority in “material form ”. Environmental information held for a public authority is information that “is physically held by a natural or legal person on behalf of that authority ”. The use of the term “physically held ” in this definition along with the use of the term “material form ” in the definition of environmental information would appear to suggest that environmental information does not include information which only exists in the abstract i.e. in respect of which there is no tangible or physical record. I am not satisfied that the information sought by the appellant, namely consolidated versions of the relevant manuals, is information that is held by the Department in material form. For these reasons, article 7(3) was not the correct exemption for the Department to rely on given the circumstances of this appeal, therefore it is not necessary to consider the points raised by the Department or the appellant in relation to Article 7(3) for the purposes of this appeal.
20. Given the above and taking account of the reasons provided as to why the Department would not hold consolidated versions of the information requested, I am satisfied that the Department can rely on article 7(5) of the AIE Regulations on the basis that the information requested is not held by or for the Department.
Having carried out a review under article 12(5) of the AIE Regulations, I affirm the decision of the Department under article 7 (5) of the AIE Regulations.
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