From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144065-N2S2Y7, OCE-147136-K6L5P8, OCE-160445-Y3Y5T7, OCE-147185-J9Y2R4, OCE-148233-F7H6F0
Published on
Whether the Department was justified under the AIE Regulations in refusing the information sought.
28 November 2025
1. Each of these cases relates to a request for environmental information relating to forestry. Following a review of all active OCEI appeals relating to decisions of the Department, OCEI Investigators engaged with staff of the AIE unit of the Department to discuss appeals where, following initial examination of the case file, it appeared the searches undertaken may not have been sufficient or records may have been withheld without adequate reasoning for relevant decisions having been provided to the appellant at original or internal review decision stage. The Department acknowledged that in some cases the exemptions relied upon to refuse environmental information may not apply and in some cases it may hold further environmental information within scope of the original requests which should be released to the appellant in the appeals subject to this decision. The Department has agreed to re-examine the original AIE requests in full.
2. I am directed by the Commissioner for Environmental Information to carry out a review of these appeals under article 12(5) of the AIE Regulations. In carrying out my review, 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’).
3. In accordance with article 12(5) of the AIE Regulations, the role of this Office in each case is to review the Department’s internal review decision and to affirm, annul or vary it.
OCE-144065-N2S2Y7
4. On 12 September 2023 the appellant requested information related to”…any formal or informal Pilot Schemes related to the possibility of afforestation under the NWS on high PH soil types.”
5. The Department issued its original decision on 10 October 2023 refusing the appellant’s request stating that “…no records exist in relation to your request”. Also on 10 October 2023, the appellant requested an internal review and provided the Department with further information to assist it in identifying the relevant information.
6. The Department issued an interim internal review Decision on 9 November 2023 noting that it was not in a position to release the records within the necessary timeframe. On 15 November 2023, the Department issued a further internal review decision annulling its previous 2 decisions and noting that 42 records had been identified relevant to the appellant’s request. The Department released 34 records in full and part granted a further 5 which were redacted under articles 8(a)(i) and 9(1)(c) of the AIE regulations. The Department withheld 3 records, relying on Article 9(1)(d).
7. The appellant appealed to this Office on 12 September 2023
OCE-147136-K6L5P8
8. On 23 January 2024, the appellant requested;
“Information on the implementation of the AIE Regulations by the Forest Service of DAFM (FS-DAFM). To include;
1. Relevant Department or Business Area hierarchy and staff numbers at each level. All relevant standard operating procedures from 1-1-2023 to date;
2. Requests from decision makers to line management, more senior staff or colleagues on the interpretation of, or the handling of requests.
3. Training, Guidance, Circulars and general correspondence, etc. issued or provided (on request or otherwise) to decision makers in order that they can interpret requests and issue decisions. This is to specifically include information on generic responses to particular Articles of the Regulations. It also specifically includes how the content of requests for internal review are addressed.”
9. The Department responded to this request on 14 February 2024, refusing the request in full while relying on Article 3(1) of the Regulations to refuse part 1 of the request, Article 7(5) to refuse part 2 & Article 9 (1)(d) to refuse part 3.
10. Following a request for an internal review, the Department affirmed its original decision on 28 February 2024.
11. The appellant appealed to this Office on 8 March 2024.
OCE-160445-Y3Y5T7
12. On 12 May 2025 the appellant requested “Any information relating to plans to introduce a reconstitution scheme for windblow”. The Department issued its original decision on 24 June 2025 refusing the request under article 9(2)(c) of the AIE Regulations noting that the requested information was “…currently still in the course of being completed and is not yet ready for release.” The Appellant requested an internal review on 24 June 2025.
13. On 8 July 2025 the Department issued its internal review decision, varying its previous decision and citing articles “ 9(2)(c), 9(2)(d) and 7(c) “ of the AIE Regulations.
14. The appellant appealed to this Office on 9 July 2025
OCE-147185-J9Y2R4
15. On 25 January 2024 the appellant requested;
1. Information on the definition of the term 'rutting' as applied by FS-DAFM; including on the distinction between 'rutting' and 'excessive rutting'
2. Information on the revision process which has resulted in the removal of the term 'persistent rutting' from forestry licence conditions / mitigation to be replaced with; Where rutting has the potential to create pathways for the movement of silt and sediment into aquatic zones deploy additional control measures, such as further brash to prevent further rutting or the use of alternative routes.
3. Information on how FS-DAFM intends to address the use of the now defunct term 'persistent rutting' in unexpired and unexercised licences.
16. The Department responded on 2 February 2024 with what appears to be a direct response to the appellants request in terms of an explanation of the term rutting, how it is applied in the forestry sector and how excessive rutting is determined, rather than information gathered on foot of an AIE request. Following a request for internal review, the Department affirmed its original decision on 19 February 2024.
17. The appellant appealed to this Office on 11 March 2024
OCE-148233-F7H6F0
18. On 19 February 2024, the appellant requested; “Information related to any review or proposed review of the public participation fees (submissions and appeals) applied directly or indirectly by the Minister under the forestry licencing system to apply under the new forestry programme.”
19. The Department responded on 13 March 2024, refusing the request while relying on Article 9(2) (c) of the AIE Regulations.
20. Following a request for internal review, the Department affirmed its original decision on 2 April 2024.
21. The appellant appealed to this Office on 16 April 2024.
Article 3(1) of the AIE Regulations
22. Article 3(1) of the AIE Regulations provides that:
“… ‘environmental information’ means any information in written, visual, aural, electronic or any other material form on—
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);”
Article 7(5) of the AIE Regulations
23. Article 7(5) of the AIE Regulations is the relevant provision of the Regulations when a request is refused on the grounds that a public authority does not hold the information sought, as follows:
24. “7(5) where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it.”
25. In cases where refusal is based on article 7(5) of the Regulations, the reasons for the conclusion that no relevant information is held by or for the public authority should be provided to the appellant. The requirement under article 7(5) of the AIE Regulations for a public authority to clearly set out the actions it has taken in response to a request is not only necessary for this Office in its considerations but also gives confidence to the appellant that suitable search procedures were conducted in response to their request.
Article 8(a)(i) of the AIE Regulations
26. Article 8(a)(i) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law. This provision seeks to transpose Article 4(2)(f) of the AIE Directive, which in turn is based on Article 4(4)(f) of the Aarhus Convention. Article 8(a)(i) must also be read alongside article 10 of the AIE Regulations.
Article 9 (1) (c) of the AIE Regulations
27. Article 9(1)(c) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or European law to protect a legitimate economic interest. This provision seeks to transpose Article 4(2)(d) of the AIE Directive, which, in turn, is based on Article 4(4)(d) of the Aarhus Convention. Articles 9(1)(c) of the AIE Regulations must also be read alongside article 10 of the AIE Regulations.
28. When relying on article 9(1)(c) of the AIE Regulations a public authority must show that the information at issue is commercial or industrial in nature; that the commercial or industrial information has an element of confidentiality; that the confidentiality of that commercial or industrial information is provided for in law to protect a legitimate economic interest; and that the economic interest, would be adversely affected by disclosure of the information at issue. The public authority must demonstrate a clear link between disclosure of the information that has actually been withheld and any adverse effect. The adverse effect on its legitimate economic interest must be reasonably foreseeable and not purely hypothetical. A mere assertion of an expectation of harm is not sufficient.
Article 9(1)(d) of the AIE Regulations
29. Article 9(1)(d) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect intellectual property rights. This provision transposes Article 4(2)(e) of the AIE Directive, which, in turn, is based on Article 4(4)(e) of the Aarhus Convention.
Article 9(2)(c) of the AIE Regulations
30. Article 9(2)(c) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns material in the course of completion, or unfinished documents or data. This provision transposes Article 4(1)(d) of the AIE Directive, which in turn is based on part of Article 4(3)(c) of the Aarhus Convention
31 Article 9(2)(c) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in Article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information. Article 10(6) of the AIE Regulations states that where a request is refused pursuant to article 9(2)(c) because it concerns material in the course of completion, the public authority shall inform the applicant of the name of the authority preparing the material and the estimated time needed for completion.
Article 9 (2)(d) of the AIE Regulations
32 Article 9(2)(d) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure. This provision transposes Article 4(1)(e) of the AIE Directive, which in turn is based on part of Article 4(3)(c) of the Aarhus Convention.
Duty to give reasons
33 The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also 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, whether at internal review stage or through an appeal to this Office.
34 The judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 371 notes that “the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal”.
35 This view aligns with the decision of the Court of Justice of the EU in C-619/19 Land Baden Württemberg v DR. This decision contains some useful guidance in relation to the application of exceptions generally. The CJEU noted in particular, at paragraph 69 of its judgment: “As the Advocate General has observed in point 34 of his Opinion, [the] obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.”
Conclusion
36 Having carried out a review of these appeals, I consider that it is appropriate at this time to annul the decisions in each case and require the Department to provide the appellant with a new internal review decision in respect of each request. I am satisfied that had each of these appeals been investigated on an individual basis, the likely outcome is that each case would have been remitted at a later point as the Department has acknowledged that it is necessary for it to carry out further searches and/or to provide additional reasons in each case. I am satisfied that the AIE regime is best served by remittal at this point, and that this is the most efficient way of progressing these appeals.
37 While I do acknowledge cooperation of the staff within the AIE unit of the Department following receipt of relevant appeals to this Office, I remind the Department again that it must have regard to the responsibilities placed on public authorities by the AIE Regulations. The Department must carry out sufficient searches for environmental information which is the subject to AIE requests and also provide appellants with satisfactory first instance decisions with a view to reducing the amount of decisions which are subject to appeal to this Office.
38 Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Department’s decision in each of these appeals. The Department should now provide the appellant with a new internal review decision in each case. In reviewing each request, the Department should carefully consider its obligations under the AIE Regulations and ensure that the appellant is provided with fully reasoned decisions in all cases.
39 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