Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150051-T1L5X8 & OCE-161381-N5L8Y4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified under the AIE Regulations in refusing the information sought under article 7(5) of the AIE Regulations
03 March 2026
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.
OCE-150051-T1L5X8
2. In May 2024 the appellant requested“Information on the process by which applications are referred for Validation (of an AA Screening decision) by a Forestry Inspector to ecologists or to the Ecology Section .”
The Department issued its original decision to the appellant which included an explanation of the process as follows;
“‘Validation forms that appear in the AASD are required where sites are ‘screened out’ at prescreening by Coillte and subsequently ‘screened in’ by Felling Inspectors or where Felling Inspectors Screen in according to DAFM rules but are usually screened out subsequently by the ecologists. In cases where the ecologist disagrees with the Felling Inspectors decision, the Ecologist will add a validation form to the AAS determination document describing the reasons for any divergence. This form, added as an Appendix to the AAS, confirms the decision to screen the application back to ‘Screen out'
Following a request for internal review the Department varied its decision and informed the appellant that: “My decision is to vary the AIE decision makers decision of 30th May 2024, and I am therefore refusing your Internal Review request as no records exist in relation to this request. You requested information in your AIE request; this was not a request for records, and it was answered by the Subject Matter expert. Please note that the AIE Regulations are not a mechanism for addressing queries. ”
3. The appellant appealed to this Office on 25 June 2024, setting out in his submission that “The process applied is not ad hoc and must have been developed by FS-DAFM. It is beyond credulity that no records were created in the development of this process that would fall within the scope of my request”
4. Following a review of this appeal the Department advised this Office that it had uncovered one relevant record and released a redacted version of this record to the appellant on 11 February 2026. The Department has also acknowledged that further records within scope of the original AIE request may exist and has agreed to review this request and issue the appellant with a new internal review decision.
OCE-161381-N5L8Y4
5. In May 2025 the appellant requested; “For the years 2020 to date; A copy of Forest Fire Reporting to the Joint Research Council of the EC. Please interpret this request broadly ”
6. The Department responded, refusing the appellants request under Article 7(5) of the AIE Regulations, on the basis that no relevant records existed, while outlining the following; “Searching emails were sent Subject Matter Expert Ciaran Nugent (Inspector Grade 1 Forest Service) requesting he search his drives, folders and emails for any documents, reports, files, emails etc. he might have in relation to Forest Fire Reporting to the Joint Research Council of the EU. No records were identified relevant to your request. ”
7. Following a request for internal review in which the appellant asked the Department to carry out further searches and provided links to what appeared to be published records which may have been considered to be within scope of his original AIE request, the Department carried out further searches as requested and were unable to locate any relevant records, so affirmed its original decision to refuse the appellant’s request under Article 7(5) of the AIE Regulations.
8. Following a review of the case file the Department have indicated to the Investigator assigned to this case that relevant records may exist, and have agreed to review the request in full and issue a new internal review decision to the appellant.
9. 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’).
10. 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.
11. In both cases, the appellant maintains that the public authority has not taken reasonable steps to identify the requested information. Accordingly, the review of this appeal is to determine whether the Department was justified in refusing information on the basis that it has carried out adequate and reasonable searches for information in line with article 7(5) of the Regulations.
Article 7(5) of the AIE Regulations
12. 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:
13. “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.”
14. 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.
15. 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.
16. 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”.
17. 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.”
18. Having carried out a review of these appeals, I consider that the Department have not demonstrated adequate searches were carried out. It follows that the most appropriate course of action is at this time to annul the decisions in both cases and require the Department to provide the appellant with a new internal review decision in respect of each request. 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.
19. 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 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 provide appellants with satisfactory first instance decisions with a view to reducing the number of decisions which are subject to appeal to this Office.
20. 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.
21. 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
Senior Investigator
On behalf of the Commissioner for Environmental Information