Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-156939-N6F8N2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department conducted reasonable and adequate searches in accordance with article 7(5) of the AIE Regulations
3 December 2025
1. On 25 November 2024, the appellant submitted a request to the Department) seeking access to the following information:
“_With reference to Section 5 (1)(n) of the Forestry Act (2014);
on any consultation between the Minister (including as Minister for the Environment, Community and Local Government and any equivalent) and the Minister for Agriculture Food and the Marine, to_:
i)promote the use of forests in carbon sequestration
ii)monitor the use of forests in carbon sequestration Time Frame - since the introduction of the Forestry Act .”
Please interpret this request broadly .
Please provide a schedule of records with your decision .”
2. On 23 December 2024, the Department issued its decision part-granting the appellant’s request and it provided access to two records. Additionally, it highlighted that it was possible that the Department of Agriculture, Food and the Marine might hold some records and it suggested that the appellant might wish to submit a separate AIE application to them.
3. On 24 December 2024, the appellant requested an internal review of this decision, as he contended that the Department had not provided full details of the searches undertaken relating to his request. He requested that the Department provide details of the following:
I. “The parties identified to undertake searches
II. The reason why these parties were selected
III. What data sources were identified to be searched and why
IV. Any data sources excluded from the searches and why (this would include Phone records and written records searched)
V. What search terms were used and why they were selected
VI. The date range that was applied
VII. Whether searches were for full or partial matches
VIII. Whether searches of emails were just for the Subject Bar or included the message body
IX. Whether searches of documents were just for the Title or included the body of the document 10. The number of results that the searches produced
X. How the results were filtered to identify information falling within the scope of the request I need to be satisfied that the right people were requested to undertake searches, the right data sources were searched, that the search terms and methods were meaningful and the results of the searches were correctly filtered to extract relevant information.”
4. On 23 January 2025, the Department affirmed its original decision to grant access to two records and stated as follows:
“ have examined the searches undertaken to locate existing records relevant to this request. Details of the searches conducted are as follows:
A search was undertaken by the Minister’s office of current and historical email as well as current and historical folders and no records were found that fall within the scope of your request.
• Personnel within the department who may have access to information pertaining to your request were contacted and asked to search for any relevant records, and no such records were found.
• A search was undertaken across all departmental electronic files held on our internal shared drive and two records were located that fall within the scope of your request. These were released in full.
In addition to the above, as part of this review, the below search steps have also been taken:
• In accordance with the Department’s efforts towards data minimisation, in accordance with the principles of the General Data Protection Regulation, the electronic records of the Minister’s office are deleted after 3 years, however, all relevant emailed correspondence is recorded on the eCorrespondence system from 2018 onwards. This has been searched with no relevant records located;
• With regard to offsite storage, any physical letters held from 2017 to date, would have a corresponding scanned copy kept on file in dedicated folders. There are tracker documents identifying these. These have also been searched with no relevant results;
• A further check of additional digital archives was carried out and this search did not locate any additional relevant records pertaining to this request.
_I am satisfied that all possible searches have been conducted in relation to this AIE request and all existing records that are relevant to your request have been located and released in full.”
As outlined in the previous decision letter, it is possible that the Department of Agriculture, Food and the Marine may hold some records relevant to the information you have requested. You may, if you wish, submit a separate AIE application to that department_.”
5. The appellant brought an appeal to this Office on 26 February 2025. He contended that pursuant to article 7(5) of the AIE Regulations, the Department had failed to demonstrate that all reasonable steps have been taken to identify the requested information.
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. In accordance with article 12(5) of the AIE Regulations, my role is to review the Department’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Department to make available environmental information to the appellant.
9. Pursuant to article 7(5) of the AIE Regulations, the scope of this review is to investigate whether the Department has taken all reasonable steps to identify the requested information.
10. On 26 February 2025, the appellant provided this Office with a preliminary submission. The appellant stated:
“I am not satisfied that the DECC have taken all reasonable steps to identify the requested information (…)
Two records were provided and appear to be responses to consultation requests but there are no details of the consultation calls. One of the records is undated .
Details of the searches undertaken are vague and search terms used were very broad and would have resulted in multiple matches (…). There is no explanation as to how any matched results were filtered to assess whether the records identified fell within the scope of my request. I am therefore not satisfied that all information falling within the scope of my request has been identified (…)”
11. On 5 March 2025, the Department was notified by this Office of the acceptance of the appeal and invited to make detailed submissions. On 27 March 2025, the Department responded setting out its position that appropriate searches had been carried out. It provided the following details:
“The Minister’s Office – which is the designated repository for records held at a ministerial level – was engaged by both the decision-maker and internal reviewer in the first instance and a comprehensive search of current and historical email as well as current and historical folders was undertaken. This search covered the period from 2017 to the present day (the 2017 start date having been previously confirmed by the requester) and the full text of the request was provided to ensure accurate search terms were employed .
(…)[T]he electronic records of the Minister’s office are deleted after 3 years; however, all relevant emailed correspondence is recorded on the eCorrespondence system from 2018 onwards. Any physical letters held from 2017 to date would have a corresponding scanned copy kept on file in dedicated folders and there are tracker documents identifying these. These repositories were all searched with no relevant records located.
Personnel within the Department who may have access to information pertaining to the request were contacted and asked to search for any relevant records – these included colleagues in the Land Use and Sectoral Policy unit and those who would deal with the forestry sector. (…)
A search was also undertaken across all departmental electronic files held on our internal shared drive to locate any relevant records. This search incorporated the key terms of the request (…) [T]he decision-maker searched individual folders including those designated "Agriculture " and "Environment and Sectoral Climate Policy ," as well as examining specific folders with "Forestry " in the title.
A further search was conducted across all folders for documents containing the keywords "Minister " and "forestry ". As a result of this search, two records were identified which were determined to have fallen within the scope of the request, given that they were both ministerial observations in relation to memorandums for the Government by the Minister for Agriculture, Food and the Marine. These two records were both released in full to the requester.
The internal reviewer replicated this search, using the terms "forestry ," "carbon ," "Minister ," and "sequestration ," as well as various combinations thereof – no further records were located. The subsequent internal review decision letter stated that the reviewer was “satisfied that all possible searches have been conducted in relation to this AIE request . “
12. 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 ”.
13. 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.
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 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.
15. Article 7(5) of the AIE regulations allows public authority to refuse a request if it does not hold the requested information. In order for a public authority to successfully rely on this provision, it must, among other things, provide evidence that it carried out adequate searches for the environmental information requested.
16. As part of a focused request for submissions issued by this Office, the Department was requested to outline further detail of their search process. In particular, the Department was asked to explain why one of the two records, which were provided to the appellant was undated and whether further details of the related consultation calls was available.
17. In response, the Department confirmed that having carried out a further search, it could not locate any further documents nor details regarding the relevant consultation call. With respect to this Office’s query as to why one of the two records was undated, the Department highlighted that the record in question should be dated as 21/07/2020 in the Schedule of Records. It explained that this is the date that the undated record was both created and last modified within the original Word document version.
18. I am satisfied that the Department has provided this Office with a comprehensive overview of the search process, which it undertook in relation to the appellant’s request. I note how the Minister’s Office in the Department is the designated repository of records held at ministerial level and how its search covered the period from 2017 to date. The Department confirmed that its Minister’s Office conducted a thorough search of its current and historical folders, including those designated “Agriculture ” and “Environment and Sectoral Climate Policy ”, as well as specific folders with “Forestry ” in their respective titles. Additionally, the Department affirmed that it had consulted with personnel, who may have had access to information pertaining to the appellant’s request, including colleagues in its Land Use and Sectoral Policy Unit, who work closely with the Forestry Sector. However, the Department confirmed that no relevant records were located by personnel, when carrying out these searches.
19. I acknowledge how it is the Department’s policy to delete the electronic records of the Minister’s Office after 3 years and therefore, that all relevant emailed correspondence on its eCorrespondence system is from 2018 onwards. I note how the Department confirmed that that any hard copy letters held from 2017 to date, incorporate a corresponding scanned copy kept on file in dedicated folders, all of which were searched with no relevant records being located. I am satisfied that the Department has provided this Office with adequate details of its electronic searches of relevant databases and that it applied a variety of search terms including "forestry ," "carbon ," "Minister ," and "sequestration," _as well as various combinations thereof”, when processing the appellant’s request. As a result of its electronic searches of relevant databases, the Department identified two records, which fell within the scope of the appellant’s request. It released both records in entirety to the appellant. I note the appellant has raised a number of queries as to why he feels the searches detailed by the Department have been insufficient. I have considered these queries, but I feel it is important to stress that where a public authority refuses a request for records under article 7 (5) pf the AIE Regulations, the question this Office must consider is whether the public authority has taken all reasonable steps to ascertain the whereabouts of relevant records.
20. To this end, 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. The passage of time is also relevant factor in such appeals. It is also important to note that the Commissioner does 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 authorises explanation of why a record does not exist. The test set out in article 7 (5) of the AIE Regulations is whether the public authority has taken all reasonable steps to locate the record(s) sought.
21. Article 7 (5) of the AIE Regulations does not require a forensic trawling exercise to be conducted by public authorities, rather a test of reasonableness and an adequate search exercise should be performed.
22. In all the circumstances, in particular the Department’s explanation regarding the search terms used, the location of such searches and the personnel who conducted such searches, I am satisfied that it has taken sufficient steps to determine that it does not hold further environmental information relevant to the appellant’s request and accordingly was justified in refusing the request based on article 7 (5) of the AIE Regulations. For the sake of completeness, I note the appellant has the option to submit a fresh request for information beyond the scope of his original request should he wish to do so.
23. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm the decision of the Department.
24. 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.
______________________
Gemma Farrell
On behalf of the Commissioner for Environmental Information