Decision
Mr. Thomas Freeman and Kildare County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-140561-L6D0C0
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-140561-L6D0C0
Published on
Whether the Council has established that it did not hold information in accordance with article 7(5) of the AIE Regulations.
09 June 2025
1. On 27 April 2023, the appellant contacted Kildare County Council (the Council) with the following request:
“Under the AIE Regulations I request the following Environmental Information in written, visual or other material form .
1.A copy of the minutes of, and notes taken and of presentations and other material tabled or discussed at, the meeting between Kildare County Council and Intel Ireland Limited on 24th October 2022 . (See email attached)
2.A copy of the minutes of and notes, presentation and any other information tabled or discussed at the meeting between Kildare County Council and Intel Ireland Limited and the National Transport Authority on 7th November 2022 .
3.A copy of correspondence and/or communications and/or minutes of meetings between Kildare County Council and Intel Ireland Limited in relation to Park and Ride facilities at Collinstown between 8th November 2022 and the date of this request .
4.A copy of correspondence and/or communications and/or minutes of meetings between Kildare County Council and the National Transport Authority, including the PRDO section of the NTA, in relation to Park and Ride facilities in Collinstown between 7th November 2022 and the date of this request ”.
2. On 29 May 2023, the appellant requested an internal review based on the Council’s deemed refusal of his request, as he had not received a response within the statutory timeframe.
3. The Council issued its internal review decision on 27 June 2023, refusing the appellant’s request under article 7(5) on the basis that “there are no records of such correspondence or meeting minutes for the period in question”. The Council made no reference to the fact that an original decision had not issued to the appellant.
4. The appellant submitted an appeal to this Office on 11 July 2023.
5. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by the appellant and Fingal County Council. 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’).
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
6. I do not consider the Council’s responses to be in accordance with the duty to give reasons, which 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 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as 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.
7. The absence of any evidence to show that the Council meaningfully engaged with the request at either original decision stage, or at internal review stage is disappointing. Where a public authority refuses a request on the basis that it does not hold information within the scope of that request, it should be in a position to set out clearly, the steps it has taken to identify and retrieve relevant information. The Council should 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.
8. 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.
9. The scope of this review is to determine whether the Council was justified in refusing access to the requested information under article 7(5) of the AIE regulations on the grounds that no information relevant to the request is held by the Council.
10. 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 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.
11. 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.
12. There is no evidence in the Council’s internal review decision of any searches having been conducted in relation to the appellant’s request.
13. The Council were provided an opportunity to provide a submission to this Office outlining specific searches in respect of information sought in this case, but no response was received.
14. Given the Council’s failure to make submissions in this case and the absence of any evidence of the searches it undertook to locate relevant information in its internal review decision, the Council has therefore not provided adequate reasons in its responses to the appellant or this Office to justify its refusal of access to the information requested.
15. Accordingly, it is my view that the most appropriate course of action to take in this case is to remit the matter to the Council for a fresh decision-making process to be carried out. The Council should issue a new internal review decision to the appellant setting out in detail the searches undertaken.
16. While it would have been open to me to seek further submissions from the Council in respect of this case, I consider that given the time that has passed, it is likely that the Council will need to carry out new searches in respect of the information sought in this case (unless the Council has adequate records of the searches carried out at the time the original decision and internal review decision were made). Due to this, I consider that it would lead to a more efficient processing of the request if the appeal was remitted back to the Council, rather than additional submissions being sought at this stage. I am satisfied that the AIE regime is best served by remitting the case back to the Council in this instance.
17. 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 Council 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.
18. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Council’s decision and direct it to provide the appellant with a new internal review decision.
19. 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