Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-155215-X4R7N6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to information requested under article 7(5) of the AIE Regulations
13 November 2025
1. On 31 October 2024 the appellant made an AIE request, in relation to a proposed forest road, for:
“1) Information on the emissions that will result from this extensive proposed forest road project. Including for the areas where it passes across non-forest land.
2) Information on DAFM's process for assessing the construction of Forest Roads on lands that would not be eligible for commercial afforestation.
3) Information on how the documents on the FLV for this project were named”.
2. On 28 November 2024 the Department issued its original decision, refusing access to the information requested on the basis of article 7(5) of the AIE Regulations, stating:
“CN92176 is still under consideration by the Department and no decision has been made on the case at this time. No information on emissions is available…[] In relation to naming documents on the FLV, there are limited options available when choosing a name or title for any document when placing it on the FLV, whichever best describes or is nearest to the document itself is what becomes viewable on the FLV .”
3. On 29 November 2024 the appellant made a request for internal review, on the basis of his view that the Department had failed to demonstrate the steps taken to search and identify any potential information or records within the scope of the request.
4. On 20 December 2024, the internal review decision was issued by the Department which affirmed the original decision but provided further information, stating:
“Following the assignment of this AIE request to me, I reviewed the original request including the response from relevant SME (Grade 1 Regional Inspector). The original decision failed to fully outline the steps taken and detail the reasons for refusal to each part of your request. It also included the incorrect appeal information. A right to review should have been applied to the decision however a right to appeal was applied in error .
(i)The original decision maker issued searching emails to :
1.SME 1 (Grade 1 Regional Inspector ).
2.SME 2 (Grade 1 Regional Inspector ).
SME 1 is the designated Grade 1 with oversight of all Forestry Roads applications and therefore is the specific subject matter expert in this area and responded to the request .
(ii)The response received from SME 1 addressed the request on points 1 and 2 of your request :
1. “Forest road application CN92176 is still under consideration by the Department and no decision has been made on the case at this time. No information on emissions is available. ”
2. “Forest road assessment primarily considers the capacity of the land to support the proposed project, to ensure that road alignments are located appropriately, and to ensure that potential environmental and construction difficulties are identified at planning stage and that adequate design standards are applied that are consistent with minimising environmental impacts, ensuring safe, durable operation and value for money. Land eligibility for afforestation is not a consideration in forest road development .”
(iii)With reference to point 3 of your original request, the following response was issued on the original decision: “In relation to naming documents on the FLV, there are limited options available when choosing a name or title for any document when placing it on the FLV, whichever best describes or is nearest to the document itself is what becomes viewable on the FLV.” To further clarify, the document is named by the officer who uploads it to the IFORIS system. The name is selected based on the availability options available on a drop-down menu designed for the FLV. An officer who makes the document public on the FLV (if not the uploader) may change the name of the document at that stage ”.
5. The appellant appealed to this Office on 13 January 2025.
6. I am directed by the Commissioner to undertake 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 of Agriculture, Food and the Marine. 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 the Department has conducted adequate searches in order to locate all records which may come within scope of the request.
9. In his submission to the OCEI the appellant contends that he is appealing the decision on the basis that he is “not assured that all information falling within the scope of my request has been identified. There is a serious deficiency in the details of the searches undertaken in circumstances where there has been a refusal under Article 7(5) ”.
10. The appellant states that no information on the searches undertaken by either Subject Matter Expert have been provided, that the response to point 1 of his request “does not exclude the possibility of records existing” and that the response to point 2 and 3 of his request “would suggest that there is a protocol in place but no actual information on that protocol has been provided ”.
11. In requesting focussed submissions from the Department, it offered the following with respect to part 1 of the appeal (information regarding emissions):
“At appeal stage, I contacted the SME, Grade 1 regional inspector and policy maker on forest roads, to confirm whether any information was held in relation to emissions of the forest road works of CN92176. Due to this SME being directly involved in policy making for forestry road licencing, should any information exist in relation to this request, he would be expected to be aware of it. The SME confirmed that that no information is held by the Department in relation to the above request. However, in interpreting this request broadly, I find that in a previous AIE request (AIE 23/102), the SME provided the AIE unit, who in turn provided to the appellant, information on how the forest road programme and its objectives comply with the requirements of the Climate Action and Low Carbon Development Act (2021). Information was also provided on how the forest road programme is consistent with greenhouse gas mitigation objectives as Page 4 of 6 required. The SME stated that “Carbon emission calculations from individual road projects are not conducted” and ‘I am satisfied that we hold no records for this type of information ’”.
12. With respect to part 2 of the appeal (information on DAFM's process for assessing the construction of Forest Roads on lands that would not be eligible for commercial afforestation), it stated:
“I contacted the SME, Grade 1 regional inspector and policy maker on forest roads, to confirm whether a formal protocol or SOP exists in relation to DAFM's process for assessing the construction of Forest Roads on lands that would not be eligible for commercial afforestation. He confirmed that no formal protocol or SOP exists in relation to this. The explanation provided to the appellant at IR stage outlined considerations that are taken into account by the SME at assessment stage of the forest road. It was outlined that ‘land eligibility for afforestation is not a consideration in forest road development ’”.
13. With respect to part 3 of the appeal (Information on how the documents on the FLV for this project were named) it stated:
“While an explanation of the process around naming documents on the FLV was provided to the appellant at IR stage, I contacted 2 SMEs, the HEO in felling, forestry section, DAFM and the HEO in approvals, forestry section, DAFM to confirm if any formal protocol/SOP exists in relation to the above. The SMEs explained that staff members follow a process of choosing from an extensive drop-down menu when naming documents to be uploaded to iForis which can then be made public on the FLV by ticking the option ‘Available to the Public (FLV)’. They explained that FLV documents are named as closely to what they describe as possible, given the drop-down menu mentioned above. For example, maps are given their own titles (BIO/Species etc) and letters may be given titles such as Further Information Requests (FIRs). There was an issue in the past where some documents were titled as ‘other’. This issue has since been resolved, and any documents are now checked to make sure that ‘other’ isn’t used as a title where possible. It was also noted that where the name ‘other’ was used in the past, it would have had no effect on a member of the public accessing the document on the FLV if/when required ”.
14. In this case the appellant contends that the Department 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 ”.
15. 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.
16. 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.
17. With respect to part 1 of the appeal, the Department stated at internal review stage that the SME involved in the project contended that no information concerning emissions was available, in seeking more focussed information regarding this during the course of this investigation, the Department provided further details, as outlined in paragraph 11. In my view the information provided (regarding AIE 23/102) alongside the statements from the SME, sufficiently evidence that the information requested is not held by the Department. While further information on searches is often necessary in cases regarding information which a public body has stated it does not hold, I find it is reasonable to accept the statements from the SME who has oversight of the process to which the information relates, and the rationale the Department has provided for why it does not hold it.
18. With respect to part 2 of the appeal the Department provided initial information in at internal review stage, noted in paragraph 4 and, subsequent information addressing the appellant’s queries regarding any formal protocol which may be in place, in paragraph 12. I am of the view that the information provided in the internal review decision adequately responds to part 2 of the request, in that it provides information as to DAFM’s process for assessing roads like the one in question. The source of the additional information, which states that no formal protocol exists in relation to same, is from the SME who provides oversight to all forestry road applications, and it would therefore appear reasonable that this person would be an authority on the existence of such a protocol.
19. With respect to part 3 of the appeal, information provided at the internal review stage provides information on the process used to name documents on the FLV, with the subsequent information provided, noted in paragraph 13, providing further details. I find that this information sufficiently responds to this part of the request in providing information on the procedure used to name documents. This is, in my view, quite a straightforward question which has been met with a straightforward response, and it is reasonable in my view to accept that no further information exists in respect of it.
20. While the appellant contends that further information may exist, it important to note that we do not generally expect public authorities to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist or rejects a public authorities body's explanation of why a record does not exist. The test in article 7(5) is whether the body has taken all reasonable steps to locate the record sought.
21. Having considered the submissions of the parties and the information already released by the Department, I am satisfied that the Department has taken all reasonable steps to identify information within the scope of the request.
Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department’s 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.
______________________
On behalf of the Commissioner for Environmental Information
Julie O'Leary