Case number: OCE-133286-Q7G0H6
18 October 2023
PDF of the issued decision can be found at the following link:
1. On 22 August 2022 the appellant made the following request to the Department under the AIE Regulations:
“A list of all consents (including licence / case number, Townland and area) awarded by the Department to Coillte for the initial afforestation of land in County Leitrim”.
He requested that “the information is provided in an electronic format as soon as is possible.”
2. The Department issued its original decision on 20 July 2022. It said it was granting the appellant’s request and provided the appellant with a schedule of records and a spreadsheet with details of consents granted. The spreadsheet listed the “date app letter sent” for each consent with dates ranging from 26 February 2006 to 8 October 2021.
3. The appellant responded the same day asking for an explanation as to “why there are no records that pre-date 2006”. He repeated this request on 25 July, 5 August and 12 August 2022. On 22 August 2022 after receiving no response to his requests for clarification, he resubmitted his request for information. The Department responded on 30 September 2022 that the resubmission of his request was missed and was not logged as a new request. It proposed to log the request that day for processing, which the appellant agreed to.
4. On 1 November 2022 the appellant emailed the Department to say he had “not received a decision on this request. Given the confusion I am prepared to wait a bit longer for a decision but need to protect my right to seek an internal review”.
5. On 7 November 2022 the appellant emailed the Department requesting an internal review. On 25 November 2022 the Department issued its internal review. It affirmed its original decision and said “in response to your question ‘Can you explain why there are no records that pre-date 2006’ please be informed that the records migrated over to a new system in the Department on 26/02/2006 and that column is not the date the consent was issued”.
6. On 28 November the appellant responded that the Department’s internal review “should be based on a de novo assessment of the request. You have indicated that you have granted access to the records requested but then you have admitted that some of the information requested (pre 2006) has not been provided. How do you square that circle? Where you have refused to provide requested information I am entitled to receive from you a decision in the context of the Regulations and your reasoning to support that decision. You have failed to provide (refused) records pre 2006 but have not provided me with a decision, in the context of the Regulations, as to why not. You must issue a decision in the context of the Regulations but have failed to do so. Please provide me with a decision that is consistent with the Regulations”.
7. The Department responded on 5 November 2022 that it had provided the information that was requested by the appellant. It said the follow up question was answered in the internal review “ie records migrated to a new system in the Department on 26/2/2006”. It added that it considered the matter closed.
8. The appellant appealed to this Office on 14 December 2022.
9. I am directed by the Commissioner for Environmental Information 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. I have also examined the contents of the record at issue. In addition, I have had regard to:
10. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
11. This review is concerned with whether the Department was justified in refusing access to environmental information, pre-dating 2006, relating to consents awarded by the Department to Coillte for the initial afforestation of land in County Leitrim, on the basis that no such environmental information is held by or for the Department, as per article 7(5) of the AIE regulations.
Submissions of the parties
12. The appellant in his submission to this Office said he wished to appeal the Department’s decision “as requested records have not been provided without a valid explanation in the context of the Regulations.” He specified that no records that pre-date 2006 were provided by the Department in response to his request, so considers that his request was refused in part. He also said that the Department “has not indicated any basis for refusal as the decision was to grant my request. The decision was in error in this regard”. He noted the Department has not stated that records that pre-date 2006 do not exist, “Migrating records to a new system does not mean that older records have been destroyed. The explanation given by DAFM for not providing information pre 2006 has no basis under the Regulations.” The appellant maintains that the Department’s decision is flawed.
13. The Department in its submissions to this Office said: “Although the column on the spreadsheet provided has dates of issuing listed as 26th of February 2006, that date was the date the information moved from one internal system to another and does not in fact reflect the date the file was issued and it may in fact be prior to 2006. Although we cannot confirm with full certainty that these files were issued prior to 2006 it would be extremely unlikely for them all to have issued in 2006, as can be seen by the range of dates on the subsequent licence issuing dates on the spreadsheet. The Department has provided all available information to the Appellant in this case”.
14. This Office sent a focussed request for submissions to the Department on 13 July 2023. We received no response from the Department.
15. 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.
16. 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 it has “provided all available information to the Appellant in this case”. As the Department has implied that the information requested by the appellant is not held by or for it, the question to be addressed is whether the Department can rely on article 7(5) of the Regulations.
17. This Office’s approach to dealing with cases where the public authority has effectively refused a request under article 7(5) is to examine 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. It is not normally the function of this Office to search for environmental information.
18. Alongside its original decision, the Department released information in the form of a spreadsheet containing a list of consents awarded by the Department to Coillte for the initial afforestation of land in County Leitrim titled “Coillte consents 2017-2021 LM”. The spreadsheet consists of a number of columns with the headings “contract number”, “scheme”, “county”, “townland” and “digitised area”. The final column is titled “date app letter sent”. 50 of the 61 consents listed have the same “date of app letter sent” – 26 February 2006. None of the consents listed in the spreadsheet pre-date 26 February 2006. The appellant in his response to the original decision queried this absence of pre-2006 issued consents.
19. The Department submitted that the “date of app letter sent” column relates to the “dates of issuing” of the consents, and 26 February 2006 is stated as the date of issuing of multiple consents because “that date was the date the information moved from one internal system to another and does not in fact reflect the date the file was issued and it may in fact be prior to 2006. Although we cannot confirm with full certainty that these files were issued prior to 2006 it would be extremely unlikely for them all to have issued in 2006, as can be seen by the range of dates on the subsequent licence issuing dates on the spreadsheet”.
20. The Department has not explained any steps taken by it to locate or identify whether consents with a pre-2006 issue date are held by or for it. I note it has implied additional information does not exist and that the pre-2006 consents are contained in the spreadsheet provided, as it said it is unlikely that multiple consents were issued on the same day in 26 February 2006. However, it also acknowledged it cannot say that with full certainty. It has not outlined any steps taken to search and retrieve information held by or for it in relation to the appellant’s request either in its current storage system or the one used by it prior to 2006. The Investigator wrote to the Department on 13 July 2022 with a specific request to provide full and complete details of the steps taken to identify and locate information within the scope of the appellant’s request, “along with its records management, retention and disposal policies in respect of the specific information/records sought in this case.” No response to these questions was received.
21. If the Department contends that no further information on consents with an issuance date of pre-2006 awarded by the Department to Coillte for the initial afforestation of land in County Leitrim exists, or that such information cannot be found after all reasonable steps to search and identify such records have been taken, it should provide full and complete details of these steps and searches, as indicated above.
22. In the absence of a response from the Department, I cannot be satisfied that reasonable and appropriate searches have been carried out as I have been provided with no detail as to the steps taken to search and retrieve information within the scope of the appellant’s request.
23. I consider the most appropriate course of action to take at this stage is to annul the decision of the Department in its entirety, the effect of which is that the Department must consider the appellant’s request afresh and make a new, first instance decision in accordance with the provisions of the AIE Regulations.
24. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Department’s decision in this case and direct it to undertake a fresh decision-making process. As outlined at paragraph 21 above, if no further information within the scope of the appellant’s request is located by the Department, it should provide full and complete details of the steps taken by it in conducting those searches.
25. 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