Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153193-Q9Q9MB
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153193-Q9Q9MB
Published on
1. On 18 January 2024, the appellant made a request to the Department under the AIE Regulations seeking access to the following:
“I wish to request under the Access to Information on the Environment Regulations, in electronic format; All information related to a meeting between the FAC and representatives of DAFM on 17-1-2023.”
2. On 15 February 2024, the Department issued its decision and granted the appellant’s request, releasing three (3) records, and outlined the searches conducted to locate and retrieve the requested information.
3. The appellant requested an internal review from the Department on 15 February 2024 expressing the view that ‘all reasonable steps have not been taken to locate records falling within the scope of my request.’
First Internal Review Decision (OCEI reference 147576-L3L1T2)
4. On 13 March 2024, the Department issued an internal review decision affirming the original decision and provided one (1) additional record that the Decision Maker believed was relevant to the appellant’s original request, while providing no details of further searches which were conducted at internal review stage.
5. The appellant submitted an appeal to this Office on 20 March 2024.
6. In the decision on that appeal OCE-147576-L3L1T2 dated 27 September 2024, the Commissioner found that the reasons issued by the Department for this case – and the four other cases which formed part of the decision - were not sufficient having regard to the AIE Regulations and Directive.
7. As outlined in this Decision, during the investigation this Office engaged with the Department “to highlight the lack of adequate reasoning contained in the relevant decisions. The Department informed the Office that on review of each of the relevant AIE request files that there had been further searches caried out in each case, however the Department acknowledged that details of these searches were not communicated to the appellant and have agreed to review its internal review decisions in each appeal.”
8. Given the circumstances of the appeals, the Commissioner annulled the internal review decisions in each appeal and remitted the cases to the Department and directed that it issued a new internal review decision to the appellant in each case.
New Internal Review Decision (OCEI Reference 153193-Q9Q9M8)
9. On 18 October 2024, the Department issued a new decision on the appellant’s request, affirming the previous Decision Maker’s decision to grant the appellant’s request and referred to the four records which had already been granted in full to the appellant. The Department confirmed that ‘there are no further documents to be released.’
10. On 29 October 2024, the appellant submitted a further appeal to this Office, stating, “I have received this internal review decision on a request that was annulled under 147576. I remain dissatisfied with the decision and wish to pursue an appeal.”
11. 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 carrying out my review, I have had regard to the submissions made by the appellant and by 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’).
12. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
13. 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.
14. Pursuant to article 7(5) of the AIE Regulations, this review is concerned with whether the Department was justified in refusing access to the information requested by the appellant on the basis that no further information within the scope of the request is held by 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, subject only to the provisions of the AIE Regulations.
16. 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. In cases where a public authority has refused a request under article 7(5), this Office 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 is applied. It is not normally this Office’s function to search for environmental information.
17. In its new internal review decision issued to the appellant on 18 October 2024, the Department detailed the searches undertaken as follows:
“In the case of the original AIE request AIE 24 049, a digital search was undertaken of the Departmental Database, Sharedrive, for specific records, as well as a search of the Departmental database eDocs. No Documents or information were returned from these searches.”
[Named] (Grade 1 Forestry Inspector, Senior Archaeologist) confirmed that the meeting was not minuted, as it was an informal exchange of information; particularly in relation to likely changes with the Forestry Programme 2023 – 2027 (at that point under negotiation with the European Commission). [The Grade 1 Forestry Inspector] has confirmed that he had conducted a search of his email Inbox for the original AIE request using the search criteria “FAC” and “Dunne” which resulted in three (3) documents being returned, which were granted to you in full with the original Decision letter re. AIE 24 049 of 15/02/2024. [The Grade 1 Forestry Inspector] also confirmed that he conducted a search of paper records, however no relevant documentation was found.
[Named] (Section Head, Ecology), who attended the meeting, was contacted by email and asked if she had any further information in relation to this Internal Review request. [The Section Head, Ecology] responded by confirming that she had conducted a search of her email Inbox using the search criteria Meeting FAC” and “Killeshin Hotel”, which resulted in her returning one (1) further record, which was granted to you along with the first Internal Review decision letter issued on 13/03/24. No further records have been found. [The Section Head, Ecology] has also confirmed that she did not take notes at the meeting.
[Named] (Director of Forestry) was contacted and he confirmed that he had no records of attending a meeting with FAC in January 2023.
[Named] (Head of Forestry Inspectorate) was contacted and asked if he had any further Information in relation this meeting between the FAC and representatives of DAFM on 17/01/2023. No further records were returned.”
18. On the 29 October 2024, the appellant appealed this decision with this Office stating, “I remain dissatisfied with the decision and wish to pursue an appeal.”
19. In submissions to this Office dated 14 November 2024, the appellant provided observations on the detail of the searches undertaken in the new decision. He expressed dissatisfaction with the searches undertaken by the Department and stated “when detailing search information, I contend that a public authority should indicate the following:
1. The parties identified to undertake searches
2. The reason why these parties were selected
3. What data sources were identified to be searched and why
4. Any data sources excluded from the searches and why
5. What search terms were used
6. What date range was applied
7. Whether searches were for full or partial matches
8. Whether searches of emails were just for the Subject Bar or included the message body
9. Whether searches of documents were just for the Title or included the body of the document
10. The number of results that the searches produced
11. How the results were filtered to identify information falling within the scope of the request.”
20. The appellant is of the view that the searches undertaken by the Department do not meet his expectations, as outlined on the list above, and he queried why those particular search terms were applied, what were the number of searches returned and how these were filtered. He stated “there is a lack of consistency in how subject matter experts (SME’s) have conducted searches. There have been no searches of WhatsApp Group or Text Messages between the parties involved.”
21. The appellant contends that “No information has been provided as to how the meeting (between senior officials of the Minister) and a (supposedly) independent quasi-judicial review body (which includes two members of the Minister's staff) originated and that I would expect some form of record to exist which explains this given the sensitivity of the relationship between the two parties.”
22. Further, the appellant stated that “The decision indicates that there was no formal Agenda and no Minutes were taken” and in his view “it is very strongly in the public interest that there is the maximum amount of transparency regarding this meeting and that any environmental information related to the meeting is identified and considered for release. As things stand there are significant gaps in how the meeting came about; what the purpose of the meeting was and what was discussed at the meeting.”
23. The appellant opined that “the records for this request should tell a story but they don’t. Is it because records don’t exist or because they haven’t been located?”
24. Article 7(5) of the AIE regulations allows a public authority to refuse a request if it does not hold the requested information. In order for a public authority to successfully rely on this provision, it must, amongst other things, provide evidence that it carried out adequate searches for the environmental information requested.
25. As outlined earlier in this decision, where a public authority refuses a request for records under article 7 (5) of the AIE Regulations, the question this Office must consider is whether the public authority has taken all reasonable steps to ascertain the whereabouts of relevant records. The Regulations do not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found, or, indeed, may have been destroyed in line with the body’s records management policies.
26. It is also important to note that the Commissioner does not generally expect public authorities to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects a public authorises explanation of why a record does not exist. The test set out in article 7(5) of the AIE Regulations is whether the public authority has taken all reasonable steps to locate the information sought. It is important to note that the searches that would constitute an adequate, reasonable and appropriate response to fulfil an AIE request are specific to each request.
27. It is the appellant’s position that environmental information relevant to his request should provide information on the details outlined in his submission and set out above. Whilst I am conscious of the appellant’s views as to the level of detail, he expects from the public authority to persuade him adequate searched have been carried out, I am of the view that the Department has demonstrated that it has carried out reasonable and appropriate searches to identify and retrieve the environmental information relevant to this request. I say this bearing in mind the appellant has already been furnished with four records relating to this request. Further, the Department has stated that no minutes were taken at the meeting in question and that it was a largely informal exchange – which goes some way to explaining why further information in relation to this request does not exist.
28. I acknowledge the appellant’s view that further information with respect to the meeting such as a formal agenda and/or minutes, details as to the origin of the meeting, its purpose and matters discussed, should be held by the Department. However, it is outside the remit of this Office to adjudicate on how public authorities carry out their functions generally or, examining whether or not a public authority should have created a particular type of record in carrying out its functions.
29. Having considered the details of the searches provided by the Department to this Office, and the explanations provided regarding the search terms used, the location of such searches and the personnel who conducted such searches, I am satisfied that the Department has taken sufficient steps to determine that it does not hold further environmental information relevant to the appellant’s request and accordingly it was justified in refusing access to the information sought under article 7(5) of the AIE Regulations on the grounds that it is not held by the Department.
30. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department’s decision with respect to the appellant’s request.
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.
Gemma Farrell
On behalf of the Commissioner for Environmental Information