Decision
Mr P and Clare County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-134678-W5P3D1
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-134678-W5P3D1
Published on
Whether the Council was justified in part refusing the request under article 7(5) of the AIE Regulations on the basis that it does not hold additional records within scope of the original request
6 March 2025
1. On 8 March 2022, the appellant contacted the Council and requested access to the following information:
I. All original photos in the original format for example jpeg, jpg, or png taken during Environmental Inspections of Meehan Dairies in the townland of Ballyvanna, Crusheen, Co. Clare.
II. All correspondence between Clare County Council 's Environment and Water Services Department and Inland Fisheries Limerick, Department of Agriculture (DAFM), National Parks and Wildlife (NPWS) and Meehan Dairies relating to the environmental inspection of Meehan Dairies
III. Records of water samples that were taken during the inspection of Meehan Dairies by the Environment and Water Services Department.
IV. Original photos of Meehan Dairies farm development in the original format, taken during the Environmental inspection.
2. The appellant was not satisfied with how the Council dealt with his original request and following a subsequent appeal to this office the Council were directed by the Commissioner in the decision on appeal OCE-123434-G9L7L2 to undertake a new decision making process on 5 October 2022.
3. On 30 November 2022, the Council issued a new first instance decision to the appellant,
informing him that it had identified three records which related to the original request. Record 1 which was granted in full, and records 2 & 3 which were part granted, with the Council relying on Article 8(a)(i) of the AIE Regulations to make some redactions of personal information relating to a third party.
In addition, the Council set out the following details in relation to each part of the request;
Part I: There were two photographs embedded into a PDF version of a word document. The two images in PDF format are attached titled Record 1.
Part II: Two e-mail records are attached from National Parks and Wildlife Service (Record 2) and Department of Agriculture, Food and the Marine (Record 3 ). There is a note to a file that there was telephone communication between Clare County Council's Environment and Water Services Department and Inland Fisheries Ireland on the 03 March 2021. This communication forms part of a final inspection report which outlines that Inland Fisheries Ireland are the lead body investigating this case. You may, if you wish, submit a separate AIE request to this body. Clare County Council corresponded with Meehan Dairies while doing a site inspection therefore no written correspondence is available.
Part III: I can confirm that no samples were taken by Clare County Council staff as part of the inspection therefore no records are available.
Part IV: All original photos in the original format for example jpeg, jpg, or png taken during the environmental inspection of Meehan Dairies in the townland of Ballyvanna, Crusheen, Co. Clare are embedded into a PDF version of a word document and attached titled Record 1.
4. On 30 November 2023, the appellant requested an internal review, informing the Council of his belief that further records existed and that he had evidence of same.
5. On 22 December 2023, the Council informed the appellant that the original decision was being affirmed.
6. The appellant appealed to my Office on 30 January 2023.
7. I am directed by the Commissioner to conduct a review of this appeal. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the correspondence between the Council and the appellant as and I have considered the submissions made by the appellant and by the Council to this Office on the matter. 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’).
8. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s decision and to affirm, annul or vary it.
9. The Appellant in this case has not raised an objection to the minor redactions made under Article 8(a)(i) of the AIE Regulations to the records which have been released by the Council to date. The appellant does submit that further records must exist which have not been released. Therefore, my review in this case will focus on if the Council have conducted adequate searches in order to locate all records which may come within scope of the original AIE request.
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.
11. 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 effectively 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 must necessarily apply. It is not normally this Office’s function to search for environmental information.
12. During the course of the investigation the appellant indicated to this office that he had evidence that further records within the scope of his AIE request must exist and that these records were being withheld by the Council. When asked to submit any relevant evidence by this Offices Investigator the appellant submitted a screenshot of an email dated 24 June 2021, which appears to be from an Executive Scientist in the Environment unit of the Council, to an employee of Inland Fisheries Ireland. Ballygassane Lake appears in the subject line of the email. The appellant submits that this record was obtained by him on foot of a separate AIE request to another public body, and questions why this record was not released to him by the Council under his AIE request to it.
13. Following submission of this evidence this office’s Investigator wrote to the Council asking that it clarify the position in relation to the email dated 24 June 2021, in addition to providing details of the following;
I. Details of guidelines, practice, procedures and arrangements in relation to the storage, archiving, retention and destruction of the type of information sought in this request;
II. Details of the exact locations/areas which were searched for the information sought in this case. Describe any searches which were conducted in each instance, including details of the files searched and the search methods used (e.g. electronic, physical, by name, by date, by key words, by reference number etc).
III. Evidence of consideration of anywhere else in the public body/authority where such information might be (as opposed to ought to be), and a description of any searches which were conducted of files in such areas with a clear outline of the files looked at;
IV. Evidence of consideration of whether relevant records may have been misfiled / misplaced;
V. A description of the searches carried out to cover the possibility of misfiled/misplaced records.
VI. Information on if all relevant individuals were consulted and their records searched? If so, please provide details of the individuals, the response(s) received, the searches carried out, and the outcome of those searches. Considering the evidence which the appellant has provided please advise in particular if individuals have been asked to conduct a search for relevant emails which may exist.
14. The Council were also asked to clarify the position in relation to the email dated 24 June 2021.
15. In its response the Council outlined that it requested its technical staff involved in the relevant investigation to search again for any e-mails relevant to the investigation. The Council do not dispute that it sent the e-mail in question, which it submits was a courtesy email to the lead investigators, however it was unable to locate the email on foot of the further searches conducted. The Council also submits that it is the policy of relevant staff to upload information relevant to each pollution complaint investigated to an electronic CRM system available to all staff, with all complaints investigated given a separate I.D. number. The Council confirmed that this system was fully searched for additional records within the scope of the request. In addition to this a number of additional searches were conducted by the Council, including;
• The Council network (Environment) drive
• Hard Drives of the personal laptops of relevant staff members
• Relevant staff Email accounts
• Electronic calendar/diary
The methods used for conducting these searches include;
• Electronic searches
• Physical search of cabinets/folders relating to the case in Environment
• By reference number (CRM 016727)
• By keywords “Ballygassan Lake”, “Meehan Dairies” “Inland Fisheries Ireland” and “CRM 016727”
• Further enquiries with staff to which records relate.
16. In light of the above, it is evident that the Council has carried out detailed searches in processing the appellant’s request, which included electronic searches of relevant databases in addition to further searches of relevant staff members email accounts and physical searches of paper files. From the evidence provided by the Council, I am also satisfied the individual staff member who sent the email provided by the appellant has carried out appropriate searches. Notwithstanding that the email provided by the appellant has not been located, I am satisfied that the searches carried out by the Council are reasonable within the meaning of the AIE Regulations and that this email is not held by the Council.
17. Considering the circumstances, I am satisfied that the Council has now taken sufficient steps to determine that it does not hold further environmental information relevant to the appellant’s request and accordingly was justified in refusing the request based on article 7(5) of the AIE Regulations.
18. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm the decision of the Council.
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