Whether the Department was justified in refusing access to environmental information that informed the development of a mitigation protocol relating to merlin on the basis that no relevant environmental information was held by or for it
8 July 2021
1. On 19 October 2020, the appellant requested the following information from the Department:
“Records which informed the development of the mitigation protocol in relation to [m]erlin where the species is a [q]ualifying [i]nterest of a Natura 2000 site; to include inter alia correspondence (internal and external), [m]inutes of meetings, [r]eports (including drafts), tenders, consultation, advice from specialists / consultants, etc.”
2. On 11 November 2020, the Department informed the appellant that, due to the complexity of the environmental information requested, it required an extension of one month in accordance with article 7(2)(b) of the AIE Regulations, in order to make its decision. It stated that he could expect to receive a reply to his request by 17 December 2020.
3. As the Department did not issue a decision on the request within the required timeframe, the appellant sought an internal review of the deemed refusal of his request on 18 December 2020.
4. On 14 January 2021, the Department issued its internal review decision, wherein it refused the appellant’s request on the ground that no relevant records could be located.
5. The appellant appealed to my Office on 18 January 2021.
6. I have now completed my 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:
• 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’).
Scope of Review
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. The scope of this review is concerned solely with whether the Department was justified in refusing access to environmental information that informed the development of a mitigation protocol relating to merlin (the Merlin Protocol) on the basis that no such environmental information is held by or for it.
Analysis and Findings
9. 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. My approach to dealing with cases where a public authority has effectively refused a request under article 7(5) is that I 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, I consider that a standard of reasonableness must necessarily apply. It is not normally my function to search for environmental information.
10. In its submissions to this Office, the Department provided details of its record storage practices and the searches conducted in response to the appellant’s request.
11. By way of background, the Department outlined that it has responsibility for the development of forestry and there are three divisions associated with this role: the Forestry Division, the Forestry Inspectorate Division, and the Forest Sector Development Division. It explained that the National Parks and Wildlife Service (NPWS) would be the lead organisation in the development of matters such as the Merlin Protocol, with personnel from the Forestry Inspectorate Division liaising with the NPWS as required.
12. The Department stated that physical records are stored at all Department locations across the country, with electronic servers also in place at those locations. It stated that all personnel have their own area on the electronic servers to save material, to which other users do not have access, and that there are also shared folders for each division, to which other divisions do not have or have very limited access. It also outlined that there are no specific folders on the shared area where records relating to merlin policy are stored.
13. The Department noted that the records sought would likely be electronic in nature and maintained in emails or in the form of word documents, spreadsheets, and pdf documents etc. It outlined that it does not retain emails that are more than two years old and emails that are not deliberately saved by users to electronic file folders are automatically deleted. It further stated that it would be unlikely that any physical records were created or stored in the development of the Merlin Protocol, however personnel familiar with the matter would be aware of such records, should they exist.
14. The Department explained that it consulted personnel in the Forestry Inspectorate Division and asked them to carry out searches of their electronic records. It stated that it would have expected them to carry out searches using the keyword “merlin” or other appropriate keywords, with which they would be familiar, e.g. “protocol.”
15. In his submissions to this Office, the appellant outlined his contention that, in essence, the standard condition concerned with the protection of merlin included in certain tree felling licences awarded by the Department could not have arisen without some form of a record base informing its development. He also noted that the Department had indicated, in the context of hearings of the Forestry Appeals Committee, that the Mitigation Protocol was produced following consultation with a named ecologist.
16. My Office sought a response from the Department in respect of the appellant’s contention. While the Department outlined that the NPWS was the lead agency involved in the development of the Merlin Protocol and, as such, its existence did not equate to the existence of records relating to its development within the Department, it did not provide further detail in that regard, nor did it address the consultation with the named ecologist.
17. Following further queries from my Office, it became clear that, during the processing of the request, the Department’s original decision maker had received an email from a staff member stating “[h]ere’s what I have on the development of the Merlin Protocol…it includes correspondence with [the named ecologist].” Subsequently, the Department provided my Office with the records referred to in that email, comprising an email and two attachments sent from the staff member to the named ecologist. The Department stated that it had not considered those records to fall within the scope of the appellant’s request.
18. The appellant sought access to records which informed the development of the mitigation protocol in relation to merlin where the species is a qualifying interest of a Natura 2000 site. Having regard to the wording of the appellant’s request, the content of the records provided to my Office, and the staff member’s statement to the effect that they relate to the development of the Merlin Protocol, I cannot agree with the Department’s position that all of the information contained in the records does not fall within the scope of the appellant’s request. Accordingly, it appears to me that the Department took an unduly narrow interpretation of the appellant’s request.
19. In the circumstances, I am not in a position to find that the Department has taken adequate steps to identify and locate all relevant environmental information held by it. As such, I cannot find that section 7(5) applies in this case.
20. I consider that 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. I appreciate that remitting the case back to the Department 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.
21. In processing the request afresh, the Department must identify all relevant information that comes within the scope of the appellant’s request and must consider all of the information for release in line with the provisions of the AIE Regulations. It should also consider the email and attachments provided to this Office. In light of comments made by the Department it appears that the attachments provided may be in the public domain. As the appellant sought access to the information requested in electronic format, article 7(3)(a)(i) may be relevant. Article 7(3)(a)(i) provides that where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless the information is already available to the pubic in another form or manner that is easily accessible. This means that if the Department decides to make environmental information available, other than in the form or manner specified, it must give the reason for doing so in writing (article 7(3)(b) refers).
22. Finally, notwithstanding the fact that I have found that article 7(5) does not apply in this case, for the sake of completeness and given the Department’s comments to the effect that the NPWS was the lead agency in the development of the Merlin Protocol, I wish to draw the Department’s attention to article 7(6) of the AIE Regulations. Article 7(6) provides that where article 7(5) applies and the public authority concerned is aware that the information requested is held by another public authority, it shall as soon as possible (a) transfer the request to the other public authority and inform the applicant accordingly, or (b) inform the applicant of the public authority to whom it believes the request should be directed. I also wish to note that it is open to the appellant to make a separate request to the Department of Housing, Local Government and Heritage, which is responsible for the NPWS, should he wish to do so.
23. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Department’s decision in this case. I direct the Department to conduct a new decision-making process on the appellant’s request.
Appeal to the High Court
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.
Commissioner for Environmental Information