Cinneadh
Ms. X and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-139104-F9L9V3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-139104-F9L9V3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing the appellant’s request on the basis that no further environmental information within the scope of that request is held by or for it
1 September 2025
1. On 7 December 2021, the appellant submitted an AIE request to the Department of Agriculture, Food and the Marine (the Department or DAFM), as follows:
“Action Point 7 of the National Peatlands Strategy 2015 provides for the following action:
'The relevant authorities working with stakeholders will introduce guidance and criteria for the identification and future management of peat areas currently afforested in line with the aims of this strategy. They will also provide clear guidance on future afforestation of peat soils.'
Bodies responsible for Action Point 7 are noted as:
DAFM and Coillte
Status in relation to implementation of Action Point 7, is reported in the Progress Report 2018 and 2019 as:
'Completed with project continuing to 2022'
Noting the above and for the time period from 1 January 2015 to today (both dates inclusive), please provide, by email, all information in connection with Action Point 7 of the National Peatlands Strategy 2015.
The information provided should include, inter alia:
- Internal and external correspondence (any media, including text and WhatsApp messages)
- Advice received, including legal advice, including drafts
- Any analysis, review or consideration etc of any material and / or draft proposals relevant to the request
- Consultations, including public consultations
- Draft reports and final reports (including all appendices or annexes)
- Notes of all telephone conversations where any part of the conversation is relevant to the request
- Notes of all meetings (actual or virtual), including agendas, where any part of the meeting is relevant to the request
- Investigations, either conducted internally, or externally by any third parties, that are relevant to the request”
2. On 11 February 2022, the Department affirmed its original decision made on 16 December 2021 to refuse the appellant’s request on the basis that the information “does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken”.
3. The above decision was appealed to this Office in OCE-119758-L8R2B8 . In the decision on that appeal, dated 23 March 2023, the Commissioner found that the Department had not demonstrated that it carried out sufficient searches to justify its position that the requested environmental information is not held by or for it and directed it to consider the appellant’s request afresh in accordance with the provisions of the AIE Regulations.
4. On 21 April 2023, the Department made a fresh decision on the appellant’s request, identifying and releasing eight (8) records considered relevant to the appellant’s request. The appellant requested an internal review of this decision, commenting that she does not know what “scientific research” the Department has had regard to in preparing the guidance and criteria referenced in Action Point 7 of the National Peatlands Strategy 2015. The appellant also stated:
“For absolute clarity, what I am seeking under this AIE request is all information held by DAFM in connection with the work undertaken by DAFM, between 1 January 2015 and 23 March 2023, on preparing:
a) Guidance and criteria for the identification of peat areas currently afforested in Ireland
b) Guidance and criteria for the future management of peat areas currently afforested in Ireland
c) Guidance on future afforestation of peat soils in Ireland.
The information requested will include, inter alia, all research requested, all research received, and all draft and final guidance prepared on:
a) the identification of peat areas currently afforested in Ireland
b) the future management of peat areas currently afforested in Ireland
c) future afforestation of peat soils in Ireland.
It will also include, inter alia, all internal and external communications (all media) relating to and in connection with the above three action points (as set out in Action Point 7 of the National Peatlands Strategy 2015).”
5. The Department issued its internal review decision on 3 May 2023, affirming its position and noting as follows:
“Enquiries were made with several members of the Inspectorate and Forest Service and all records held were issued to you. A search of the Departmental database was conducted using the parameters set out in your request, this returned no records. Accordingly, I affirm this decision as I am satisfied that adequate searches were conducted in relation to your request.”
6. On 2 June 2023, the appellant submitted a further appeal to this Office, on the basis that the requested environmental information had still not been provided by the Department.
7. On 13 June 2023, the Department was provided with a copy of the appellant’s statement of appeal, and it was requested to forward, within six (6) weeks or by 25 July 2023, a final submission explaining and justifying the basis for its decision. As per this Office’s standard procedures this request for submission included the following note:
“If your organisation is of the view that some or all of the information/records sought by the appellant, including further relevant records that the appellant contends exist or should exist, do not exist or cannot be found after all reasonable steps to search and identify such information/records have been taken, please provide full and complete details of these steps and searches, along with its records management, retention and disposal policies in respect of the specific information/records sought in this case.”
8. No response was received to the above request and on 24 May 2024, this Office wrote again to the Department seeking specific details of the steps taken to search for the information requested as well as information about the records management practices of the Department, insofar as those practices relate to the requested information. A final reminder issued to the Department on 14 June 2024.
9. At this time, no submission has been received from the Department to explain or justify the basis for its decision in this matter.
10. I am directed by the Commissioner for Environmental Information to carry out a review of this appeal. I have now completed this review under article 12(5) of the Regulations. In so doing, I have had regard to all correspondence between the Department and the appellant and to correspondence between my Office and both the Department and the appellant on the matter. 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’).
11. As set out above, in case OCE-119758-L8R2B8, I considered whether the Department was justified in refusing the appellant’s request and whether the Department had taken adequate steps to identify all relevant information. On 23 March 2023, I annulled the decision of the Department and directed it to make “a new, first instance decision in accordance with the provisions of the AIE Regulations”.
12. The Department issued a fresh decision on 21 April 2023, which was also subject to an internal review process under article 11 of the AIE Regulations. I therefore consider the decision issued on 3 May 2023 by the Department to be its new internal review decision.
13. For clarity, the legal effect of the Commissioner’s decision of 23 March 2023 in OCE-119758-L8R2B8 to annul the decision of the Department is that the Department was required to issue the appellant with a new internal review decision under article 11 of the AIE Regulations. Article 12(3) of the AIE Regulations allows for a decision made by a public authority under article 11 of the AIE Regulations to be appealed to my Office. Article 12(5) of the AIE Regulations provides that I may review the decision of the public body and affirm, vary or annul the decision concerned, specifying the reasons for my decision. I therefore consider that where I annul a decision of a public authority, this only has the effect of annulling the internal review decision, not the original decision.
14. Also as outlined above, the appellant, in her original request dated 7 December 2021, requested information “for the time period from 1 January 2015 to today (both dates inclusive)”. Subsequently, in her internal review request dated 21 April 2023, she stated that she was seeking information in connection with work undertaken by the Department between 1 January 2015 and 23 March 2023. It is important to note that a review by this Office is limited by the wording of the original request and cannot include records created after the date of that request, i.e. in this case, after 7 December 2021. However, it is open to the appellant to make a fresh request to the Department for any such further information, should she wish to do so.
15. In accordance with article 12(5) of the AIE Regulations, the role of the Commissioner 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, the Commissioner will require the public authority to make available environmental information to the appellant.
16. This review is concerned with whether the Department is entitled to refuse access to the information requested by the appellant on the basis that no further information within the scope of the request is held by or for it.
17. The thrust of the appellant’s internal review request dated 21 April 2023, her statement of appeal dated 2 June 2023 and further correspondence received by this Office on 14 June 2023, is that further information should exist regarding Action Point 7 of the National Peatlands Strategy 2015. The appellant submits that “[the Department] has provided in 2023 some information but not the information actually requested”.
18. As outlined in the appellant’s AIE request, Action Point 7 of the National Peatlands Strategy 2015 states: “The relevant authorities working with stakeholders will introduce guidance and criteria for the identification and future management of peat areas currently afforested in line with the aims of this strategy. They will also provide clear guidance on future afforestation of peat soils.” The appellant also points to page 12 of the National Peatlands Strategy Progress Report 2018 and 2019 which states, in relation to the implementation of Action Point 7, “Completed with project continuing to 2022”. The appellant contends that if no further information within the scope of her request is held by or for the Department, “then the statement on Page 12 of the of the National Peatlands Strategy Progress Report 2018 and 2019 is factually incorrect”. It is the appellant’s view that the Department’s position in response to her AIE request and the update noted in the 2018/2019 Progress Report are “mutually exclusive”.
19. While I acknowledge the appellant’s view that further information with respect to work undertaken on preparing guidance and criteria associated with action Point 7 of the 2015 Strategy should exist and be held by the Department, it is outside the remit of this Office to adjudicate on how public authorities carry out their functions generally or in examining whether or not a public authority should have created a particular type of record in carrying out its functions. My role concerns reviewing appeals of requests for access to environmental information within the scope of the request, which is held by or for the relevant public authority and no more than that.
20. 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”.
21. 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.
22. 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.
23. The above is a non-exhaustive list of the types of explanation which the Department ought to and could have provided to satisfy the appellant and this Office to demonstrate that it carried out reasonable and appropriate searches. However, as indicated above, no response was received to this Office’s requests for submissions dated 25 July 2023 and 24 May 2024.
24. From a review of the Department’s decision-making records on this file, I am of the view that the Department has not demonstrated that it has carried out reasonable and appropriate searches to identify and retrieve environmental information relevant to the request. The internal reviewer simply stated that she was “satisfied that adequate searches were conducted in relation to [the appellant’s] request”. Whilst I acknowledge that the Department has identified and provided certain records to the appellant, it remains the case that very limited information has been provided concerning the searches that have actually been carried out by the Department, and no specific details have been proffered as to how they have been carried out. The explanation, as contained in the Department’s internal review decision dated 3 May 2023 was as follows: “Enquiries were made with several members of the Inspectorate and Forest Service and… A search of the Departmental database was conducted using the parameters set out in [the appellant’s] request”. As part of the appellant’s correspondence to this Office dated 14 June 2023, she also provided a copy of email correspondence between the appellant and the Department following the issuing of the internal review decision. In this correspondence, dated 26 May 2023, the internal reviewer stated: “Despite extensive enquiries being made to a number of Senior Inspectors and also Ecologists no further information was found. A search of the DAFM database was also conducted using a number of search words relevant to your request however no records were located.”
25. In contrast to the specific items listed at para. 22., the above reasons given by the Department are general, without any explanation of the process used to conduct searches relevant to the AIE request. The Department did not provide sufficient detail on which staff were consulted in connection with the searches, what particular database(s) were searched, or the “parameters” used, for example, the keywords used for searches.
26. In light of the above, there is no evidence before me that the Department has taken reasonable and adequate steps to ensure that no further environmental information within the scope of the appellant’s request is held by or for it. As such, I cannot find the Department was justified in refusing the appellant’s request based on article 7(5) of the AIE Regulations.
27. The Commissioner’s previous decision dated 23 March 2023 clearly outlined the requirements in order to apply article 7(5) of the AIE Regulations (see para. 19 – 24 of the decision in OCE-119758-L8R2B8). However, the Department’s fresh decision-making process remains unsatisfactory having regard to the responsibilities placed on public authorities by the AIE Regulations. Had the Department set out the detail of the searches carried out by it; this further appeal may not have occurred.
28. As the Department ought to be aware (as highlighted in many previous decisions issued by this Office involving the Department), the duty to give reasons, for the refusal of requests, arises not only by virtue of the AIE Regulations and Directive, but is 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 andBalz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Similarly, articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stage, consistent with Article 4(5) of the AIE Directive. 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.
29. As outlined above, this case relates to a previous decision of this Office wherein the Commissioner annulled the Department’s decision and directed it to undertake a fresh decision-making process. In such circumstances, I appreciate that remitting the case back to the Department for a second time causes further delay for the appellant. However, I do not believe that there is an appropriate alternative course of action to take in this instance.
30. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the Department’s decision and direct it to carry out a new internal review process under article 11 of the AIE Regulations.
31. If further searches identify information within the scope of the appellant’s request, then a decision on disclosure should be reached in accordance with the provisions of the AIE Regulations. If it is the case that, having taken reasonable and adequate steps to identify and retrieve information within the scope of the request, the Department remains of the view that no relevant information is held by or for it, it should advise the appellant of this and set out the steps taken by it in conducting those searches.
32. 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