Case number: OCE-124934-S2K4B4
2 October 2023
PDF of the issued decision can be found at the following link:
1. On 31 March 2022, the appellant contacted the Department of Agriculture, Food and the Marine (the Department) and requested the following:
“All records relating to Forest Roads CN45714 & CN45752 including:
Application details, Specification, Maps, referrals and submissions, EIA Screening, AA Screening and Determination, NIS, Inspector Certifications including post licence Inspection; correspondence, etc.”
2. The Department’s original decision part-granted access to the information requested, with some information being redacted on the basis of article 8(a)(i) of the AIE Regulations.
3. Following the appellant’s request for internal review wherein he submitted that not all of the information related to his request had been provided, the Department’s internal review decision affirmed the original decision.
4. The appellant submitted an appeal to this Office on 13 June 2022.
5. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In doing so, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
6. In accordance with article 12(5) of the AIE Regulations, the role of this Office 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 public authority may be directed to make available environmental information to the appellant.
7. During the course of the investigation, the Department located a number of additional records relevant to the appellant’s request. Some of these records were part-granted with redactions on the basis of article 8(a)(i) of the AIE Regulations. Redactions were made to other records on the basis of article 9(1)(c). Following this, the Investigator contacted the appellant for an updated position. The appellant did not consider the Department’s refusal under article 8(a)(i) to be adequately reasoned, but did not wish to pursue that refusal in the present appeal. However, he was not satisfied with the Department’s reliance on article 9(1)(c) of the AIE Regulations.
8. Consequently, the scope of this review is confined to whether the Department has taken reasonable and adequate steps to identify all information held by or for it within the scope of the appellant’s request such that article 7(5) of the AIE Regulations applies, and whether the Department is entitled to refuse access to certain information contained in Documents 11, 17, 23 and 26 under article 9(1)(c) of the AIE Regulations.
9. The appellant submitted his appeal to this Office on the basis that further relevant environmental information, other than the information already identified, ought to exist and had not been provided to him.
10. He outlined in his internal review request that the following information had not been provided:
“No EIA Screening has been provided
No AA Screening has been provided
No Inspector's Certification has been provided (the name of the certifying Inspector for each application is not included in the records)
No submissions or consultation information has been provided
No copy of Form 2 (Application for payment) has been provided”
11. The appellant also requested that the Department provide a complete schedule of records with the internal review decision.
12. The appellant also made submissions to this Office in which he argued as follows:
(i). He considered that an EIA Screening should have taken place as the EIA Directive was in place when the licences were assessed and issued.
(ii). He submitted that screening for Appropriate Assessment under Article 6(3) of the Habitats Directive would have been required.
(iii). He submitted that for a licence to have been awarded for these projects a Forestry Inspector must have certified the application for licencing.
(iv). He accepted that records on submissions and / or consultations may not exist but submitted that the Department should have confirmed to him if that is the case.
(v). He submitted that a Form 2 (Application for payment) must be provided to the Department before payment of grant monies can issue and that previous data provided to him by the Department indicates that a First Instalment Approval Letter had been issued for each forest road the subject of his request.
13. The Department provided a brief submission to the Office on 7 July 2022 which provided as follows: “The original request and internal review request were answered similarly. The documents in the possession of the Department, in relation to these forestry applications were provided. This position has not changed”.
14. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on 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 is held by or for the public authority concerned. This Office’s approach to dealing with cases where a public authority has effectively refused all or part of a request under article 7(5) is that it must be satisfied that 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 must necessarily apply. It is not normally this Office’s function to search for environmental information.
15. Although the Department did not explicitly rely on article 7(5) of the AIE Regulations at any stage of its decision-making, its submission as outlined above stated that “the documents in the possession of the Department, in relation to these forestry applications were provided”. As the Department has implied that the information requested is not held by or for them, the question to be addressed is whether the Department can rely on article 7(5) of the Regulations.
16. There is a notable and almost complete absence of reasons for the Department’s position that it holds no further information within the scope of the appellant’s request in both its internal review decision and in submissions to this Office. The duty to give reasons, which arises not only by virtue of the AIE Regulations and Directive, 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  IESC 3 and Balz & Anor v An Bord Pleanála & Ors  IESC 90). Both of these judgments, along with articles 7(4) and 11(4) of the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. 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.
17. As a consequence of the Department’s failure to provide reasons for its conclusion that no further information within the scope of the request was held by or for it, I have no evidence before me to demonstrate that the Department carried out sufficient searches to justify its stance.
18. In addition, in this particular case, the appellant sought information that the Investigator found was very similar to forestry information which was the subject of another case with this Office. In that case, further information was released by the Department. With that in mind, and in the interest of achieving an efficient resolution, the Investigator liaised with the Department to ascertain whether any further information could be released to the appellant in this case.
19. The Department subsequently located 42 records it believed to be relevant to the appellant’s request. It granted access to 17 of these records in full and part-granted access to the remaining 25 records. The records provided to the appellant included the additional documents outlined in his internal review request, with some records part-granted with redactions on the basis of article 8(a)(i) of the AIE Regulations and also article 9(1)(c).
20. While I welcome the Department’s engagement with the Investigator in the later stages of this appeal, I wish to note at this point that the manner in which the Department dealt with this request at internal review stage is unacceptable. The appellant’s internal review request made it clear that he considered the Department to hold further information and the absence of any evidence to show that the Department meaningfully engaged with this point at internal review stage is most disappointing. It made no attempt to explain the appellant the basis on which it had concluded that no further information within the scope of the request existed. I acknowledge that renewed searches can sometimes reveal some additional information that may not have been found initially. However, the fact that no information whatsoever was found during further searches at internal review stage, but a considerable amount of information was then found when this Office enquired about the matter, indicates significant deficiencies in the initial searches conducted by the Department. At that stage the appellant had paid a fee to this Office to have his appeal considered. I would encourage the Department to review its procedures for searching for environmental information, and take account of the requirement under article 5(1)(b) of the AIE Regulations for it to make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible.
21. As previously noted above, certain records furnished to the appellant were redacted, with the Department relying on articles 8(a)(i) and 9(1)(c) of the AIE Regulations. The appellant outlined that he did not wish to pursue the appeal insofar as the application of article 8(a)(i) was concerned but was not satisfied with the Department’s reliance on article 9(1)(c) of the AIE Regulations to redact parts of Document 11, Document 17, Document 23, and Document 26 flagged as ‘commercial information’. Article 9(1)(c) provides that a public authority may refuse to make available environmental information where the disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.
22. In respect of Documents 11, 17, 23 and 26, the Department appear to have merely referred to article 9(1)(c) in seeking to refuse access to the information at issue, and stated that it is commercial in nature. It has referred to certain sections of the Freedom of Information Act but has provided no further explanation as to why it considers release of the information would give rise to an adverse impact on commercial or industrial confidentiality which is provided for in law to protect a legitimate economic interest. It has also provided minimal detail as to the basis on which it considers the interest in withholding the information to outweigh the public interest in its disclosure.
23. However, I do not consider it appropriate at this juncture for this Office to engage in a substantive review of the Department’s application of article 9(1)(c). I accept that a review by this Office is considered to be de novo, which means that it is based on an assessment of the circumstances at the time of the decision. As such, I must acknowledge that the Department has carried out further searches in this case and located additional records, albeit only undertaking these searches after this Office enquired about the matter. Having done so, it now seeks to rely on an alternative basis for refusal of information, that is article 9(1)(c).
24. While it can be the case that public authorities amend their positions throughout the course of an appeal given the passage of time, in this case the Department refused information under article 7(5) without providing sufficient reasoning to the appellant. It now appears to have adopted a “blanket approach” to its refusal of information under article 9(1)(c) of the AIE Regulations, without demonstrating that it has given adequate consideration to the information at issue and to the requirements of article 10.
25. It is therefore my view that is not appropriate for me to engage in further analysis with regard to the application of article 9(1)(c). As article 12(5) of the AIE Regulations makes clear, the role of this Office is to review the public authority's internal review decision and to affirm, annul or vary it. It is not the role of this Office to examine the information on the Department’s behalf and effectively become the communicator of a first instance decision to the appellant.
26. In the circumstances of this case, I consider that the most appropriate course of action to take is to annul the Department’s decision and direct it to undertake a fresh decision-making process. I acknowledge that this may come as a disappointment to the appellant, however he will have a right to an internal review and a review by this Office if he is not satisfied with the Department’s decision.
27. Should the Department wish to rely on article 9(1)(c) in processing a new decision, I would remind it that there are a number of elements required in order to engage the exemption provided for in this article:
a. The information must be commercial or industrial in nature.
b. The confidentiality of the information must be provided for by law.
c. The confidentiality must protect a legitimate economic interest.
d. The confidentiality must be adversely affected by disclosure.
28. Furthermore, I remind the Department of its obligations, if relying on article 9(1)(c), to set out the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the interest identified along with the reasons it considers the interest in maintaining any commercial or industrial confidentiality to outweigh the public interest in disclosure.
29. If it is the case that grounds for refusal are not found to apply to the requested information, the information should be released.
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 undertake a fresh decision-making process.
31. 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