Decision
Mr X and Office of Public Works
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-161518-W8F1Q7
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-161518-W8F1Q7
Published on
Whether the OPW has established that it did not hold information in accordance with article 7(5) of the AIE Regulations.
1. On 2 May 2025, the appellant contacted the authority with the following request:
“I request the following Environmental Information under the AIE Regulations.
• Copies of all correspondence, including emails, documents, and minutes of non-public meetings with persons representing the (i) the ‘Save Castletown Committee’, (ii) Save Castletown Committee CLG, and (iii) any firm of solicitors concerning rights of way or alleged rights of way on OPW lands at Castletown, Celbridge. Timeframe: 1st January 2024 to the date of this request.
• Copies of all correspondence, including emails, documents, and minutes of non-public meetings, with persons representing (i) the ‘Save Castletown Committee’, (ii) Save Castletown Committee CLG, and (iii) any firm of solicitors, concerning rights of way or alleged rights of way on lands adjoining OPW lands at Castletown, Celbridge, particularly on ‘Gay’s Avenue’ i.e. the access road formerly serving the car park to the north of Castletown House. Timeframe: 1st January 2024 to the date of this request.
• Copies of all correspondence, including emails and documents, between the OPW and Kildare County Council regarding access to OPW lands and Castletown House via the Barnhall Road access off the M4 Interchange and/or any rights of way and /or alleged rights of way at that location. Timeframe: 1st January 2024 to the date of this request.
• Communications, emails, letters to and from, and any minutes of meetings with, FP Logue Solicitors”.
2. It appears that the OPW failed to respond to the appellants original request within the allowed timeframe, as set under the AIE Regulations, and as a result the appellant then submitted a request to the authority for an internal review on 04 June 2025, which appears to have also gone unanswered.
3. As the authority failed to issue an internal review within the statutory timeframe, the appellant appealed to this Office based on the deemed refusal of his request by the OPW. In accordance with this Office’s procedures, the authority was requested to advise the appellant of its effective position (internal review decision).
4. The OPW issued a late internal review decision on 12 August 2025, wherein it granted access to some information to the appellant while refusing other records under article 8(a) of the AIE Regulations.
5. On 14 August 2025 the appellant brought his appeal to this Office on the basis that he sought the release of redacted information from the released records while also asking for “further and better searches for additional records which should exist”.
6. 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 the OPW. 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.
7. 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.
8. The scope of this review is to determine whether the authority was justified in refusing access to the requested information under article 7(5) and 8(a) of the AIE regulations.
9. The effective position provided by the OPW states “provides a brief description to withhold or partially withhold access to a record, it specifies the Article of the AIE Regulations under which this decision has been made. For these records, it also records how I have applied the public interest test pursuant to Article 10(3) and 10(4).” The schedule of records refers to refusal of the withheld information under “article 8(a)” and appears to be refusing one document in full under article 8(a)(iv) and partially refusing some documents under article 8(a)(i).
10. I consider that the effective position/internal review response provided to the appellant by the authority fails to clearly set out the rationale for the refusal of the information sought. There is no elaboration as to how the cited provisions apply to the relevant information. In the case of article 8(a)(iv) the OPW have not identified the proceedings to which the information at issue relates, shown that those proceedings have an element of confidentiality, that the confidentiality of those proceedings is protected by law, or that the disclosure of the information at issue would adversely affect the interest being protected. In relation to article 8(a)(i), the OPW have not set out how confidentiality of the withheld information is protected by law or adequately considered whether the public interest in the release of the information might justify release, as per previous decisions of this Office in relation to personal information.
11. I will also note that the schedule refers to “public interest” and in relation to the withheld information states that “public interest is best served by not releasing records relating to an ongoing process/personal information”. The OPW should note that note that the public interest test required by article 10(4) of the AIE Regulations requires public authorities to weigh the factors in favour of release, including the general public interest in the release of environmental information, against the interest served by refusal. The question is not whether the public interest would be served by release but whether the public interest served by release is outweighed by any interest in refusal, and the factors considered should be set out in relevant decisions of public authorities in this regard.
12. I do not consider the authority’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. Mere reference to a statutory provision is not sufficient to establish that information is exempt under the AIE Regulations. 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.
13. Accordingly, I cannot find that refusal of the withheld information is justified under article 8(a)(iv) or article 8(a)(i) of the AIE Regulations.
14. 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.
15. What will be considered reasonable will vary from case to case, but as a general guide, I set out below the type of information that my Office would generally expect to be set out in a decision where a public authority is relying on article 7(5) of the Regulations;
I. an outline of exactly which areas/units etc. of the organisation were searched for the information;
II. an explanation of how searches were carried out (i.e. manually, by computer, by name, by key words). Keywords should be recorded and provided in the decision as appropriate;
III. details of the individuals consulted in connection with the search;
IV. a description of the searches carried out to cover the possibility of misfiled/misplaced records;
V. details of guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of information requested in this case;
VI. the basis on which the public authority has concluded that it does not hold any information within the scope of the appellant’s request and that no such information is held by any other person or body on its behalf.
16. During the course of this review, this Office sought submissions from the OPW in relation to the searches and steps which it undertook to locate relevant environmental information
17. In response, the OPW provided a document which listed the individual staff and sections which were consulted as part of the search process while also confirming that searches were carried out on both paper and electronic records. This document did not provide sufficient detail regarding the actual searches carried out, the actual locations searched, or the other matters set out above. Based on this, I am not satisfied that the OPW has taken all reasonable steps to identify and locate information relevant to this request.
18. Accordingly, it is my view that the most appropriate course of action to take in this case is to remit the matter to the authority for a fresh decision-making process to be carried out. The authority should issue a new internal review decision to the appellant setting out in detail the searches undertaken.
19. While it would have been open to me to seek further submissions from the OPW in respect of this case, I consider that given the lack of search detail provided to this Office, it is likely that the authority will need to carry out fresh searches in respect of the information sought in this case. Also, given the lack of detail provided regarding the application of article 8(a)(iv) and 8(a)(i) as set out above I am not satisfied that the OPW has engaged in any or any adequate consideration of the withheld information, and that it would be more efficient and appropriate for the OPW to reconsider this information and issue a fully reasoned decision to the appellant, taking into account my comments above and previous decisions of this Office. Overall, I consider that it would lead to a more efficient processing of the request if the appeal was remitted back to the authority, 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 authority in this instance.
20. Additionally I would encourage the authority to engage with the appellant to establish what records he believes to exist in order to satisfy his request at the earliest possible opportunity.
21. 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 authority 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.
22. Having carried out a review under article 12(5) of the AIE Regulations, I annul the OPW’s decision and direct it to provide the appellant with a new internal review decision.
23. 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