Cinneadh
Mr. X and Coillte
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-153122-H7N0Q7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-153122-H7N0Q7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether Coillte was justified in refusing access to information under article 7(5) of the AIE Regulations on the grounds that the requested information is not held by or for it.
28 August 2025
1. On 19 August 2024, the appellant submitted a request to Coillte requesting access to the following:
“Information which informed Coillte’s response to recommendations made in the BirdWatch Ireland Report.
Review of mitigation measures for the protection of Hen Harrier and Merlin from forest management disturbances and recommendations for improvements to protection procedures" contained within a document "Coillte’s Response to Recommendations made in the BirdWatch Ireland Report"
To include, but not restricted to; a) internal and external correspondence (all media). b) details of Meetings (Agenda, Minutes, notes made.”
2. On 19 September 2024, Coillte issued its decision refusing the appellant’s request on the basis of article 7(5) of the AIE Regulations.
3. On the same day, the appellant requested an internal review of this decision as he submitted that it implied that a “whole document response from Coillte had disappeared out of thin air”.
4. Coillte did not issue its internal decision within the prescribed one-month timeframe but did so on 23 October 2024, wherein it affirmed its original decision.
5. The appellant brought an appeal to this Office on 23 October 2024.
6. I am directed by the Commissioner to carry out a 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 the Department. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. In accordance with article 12(5) of the AIE Regulations, my role is to review the Department’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Department to make available environmental information to the appellant.
9. Pursuant to article 7(5) of the AIE Regulations, the scope of this review is to investigate whether the Department has taken all reasonable steps to identify the requested information.
10. In the present case, Coillte failed to issue its internal review decision to the appellant within the prescribed one-month timeframe under the AIE Regulations. This was noted by the appellant in his appeal to this Office.
11. In an email to this Office dated 17 January 2025, Coillte stated“If [the requestor] is pursuing the issue that there was a deemed refusal at internal review, we must accordingly assume that he does not accept the IR decision which issued to him on 23 October 2024 and the appeal should, in Coillte’s opinion, be confined to a deemed refusal under Article 11…If the appeal is not on a deemed refusal, Coillte now relies for its full effect and meaning on the contents of the IR decision of 23 October 2024 in support of the refusal of the Request in reliance on Article 7(5) of the AIE Regulations wherein the searches carried out are clearly described and context is provided to explain the conclusion that records do not exist.”
12. In later correspondence, Coillte stated to the investigator dealing with the case“You should confirm if the Appellant accepts Coillte’s IR Decision letter of 23 October 2024, as if he does not, the appeal is based on a deemed refusal at IR Decision stage and not on the Art 7(5) refusal as set out in that letter of 24 October 2024”. The Appellant states, in his Statement of Appeal of 23 October 2024:-“The internal review decision was issued outside of the statutory timeframe and I had to remind Coillte of their failure to comply with the statutory framework. This is not acceptable.” It is important that this point is clarified before you assess the Art 7(5) refusal.”
13. I do not see how this issue has any significant effect on how this appeal is considered. Coillte did not issue its internal review decision within the time period prescribed in the AIE Regulations and therefore, a deemed refusal arose. The internal review decision issued a number of days late, and the appellant was in receipt of that late decision before making his appeal to this Office. In other cases where an internal review decision has not issued in time, and a deemed refusal arises, this office requests that the public authority sets out its views, referred to in its effective position. In this case, that was not necessary, as Coillte had already issued its late decision to the appellant. Coillte’s position on the request was therefore clear, and further Coillte has had the opportunity to make further submissions during the course of this appeal. I am satisfied that fair procedures have been complied with in this regard and that the appeal was dealt with appropriately. This will, however, affect the manner in which I make my decision on the appeal, which I will explain below.
14. The general thrust of the appellant’s appeal is that Coillte has failed to provide sufficient details on the parameters of the searches undertaken. The appellant queries how Coillte can be sure to the requisite degree that none of the requested information exists. He highlights how it appears to be Coillte's position that all traces of the document containing edits and comments was deleted after online team meetings had concluded.
15. In its internal review decision, Coillte stated that its search process included as follows:
“I have detailed below the steps taken to search for the information requested and have provided some information about the records management practices of Coillte, insofar as those practices relate to the requested category of information. The records typically created in relation to this topic would be reports and/or Outlook emails, maps and additional local site information.
These records would be searched for on the; cloud-based storage and Office 365/emails, and by reference to direct telephone conversations/meetings with key ecology, operational or estates staff from the relevant business division, including potentially cross referencing with managers and other business processes. The records on this type of information would be managed by a subject matter expert (SME) being the Head of Ecology.
As part of the internal review process, I requested that the SME search for records within the scope of the Request. The SME carried out searches within the parameters described above and using the following key words ‘Merlin Report’, ‘HH Report’, ‘Birdwatch HH’, ‘Birdwatch Report’ and ‘HH and Merlin’, ‘mitigation measures’, ‘Hen Harrier’ and ‘Merlin’ It was then confirmed to me that no records exist, relevant to your Request.
The basis why no records, in relation to the Request, exist is that the section of the Coillte Forest Birds Report relevant to your request, i.e Section 6.1 “Recommendations for mitigation measures for the protection of hen harrier and merlin” was prepared between the end of 2023 and May 2024. The report was drafted initially by the SME, based on the recommendations contained within the BirdWatch report prepared for Coillte. The draft document (Section 6.1) was then edited across a number of meetings between Coillte staff, during which the BirdWatch report was reviewed and discussed and Coillte’s recommendations with regard to mitigation measures for the protection of hen harrier and merlin were discussed, formulated and inserted into the table which can be seen at section 6.1 as published by Coillte. There were no meeting minutes taken during these team meetings. Staff submitted edits and comments within the document, which were subsequently either incorporated into the document or deleted.”
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 or any further environmental information is held by or for the public authority concerned.
It provides as follows:
“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 .”
17. This Office’s approach to dealing with this type of case is to assess whether adequate steps have been taken to identify and locate relevant environmental information, having regard to the circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied.
18. 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.
19. During the course of this review, this Office sought submissions from Coillte in relation to the searches and steps which it undertook to locate relevant environmental information.
20. As part of a focused request for submissions issued by this Office, Coillte was requested to outline further detail on their search process. In particular, Coillte was asked to explain the reason why staff edits and comments were deleted within a relevant document and no meeting minutes were taken at related team meetings.
21. In response, Coillte made the following points
a) “We are satisfied that none of the requested information exists following detailed discussions with the SMEs as outlined in the IR Decision letter.
b) The edits were not communicated via email therefore there are no such emails relevant to the Request in existence. As stated in the IR Decision “Staff submitted edits and comments within the document, which were subsequently either incorporated into the document or deleted”. In the usual way when editing a document within Microsoft Word, using tracked changes and comments, the comments are deleted once “resolved” and changes are no longer tracked once accepted.
c) I can confirm that in searching for records, the Head of Ecology, as SME, did engage with the Team who were involved in the relevant work and asked them to carry out their own searches for notes and any other records that would be relevant to the Request and no records were identified.
d) All relevant meetings were convened across Microsoft Teams.”
22. On 24 July 2025 this Office sought further information from Coillte regarding the searches carried out by the team involved in the relevant work (as referenced at point (c) above). Coillte responded confirming that the individuals involved were the Head of Ecology and the Wildlife, Ecology and Appropriate Assessment Lead. Coillte states that searches were carried out on cloud-based storage (Sharepoint Online) and Office 365/emails (Microsoft Outlook). Coillte confirmed that as per the internal review decision, that the SME’s carried out searches within the parameters described above and using the following key words‘Merlin Report’, ‘HH Report’, ‘Birdwatch HH’, ‘Birdwatch Report’ and ‘HH and Merlin’, ‘mitigation measures’, ‘Hen Harrier’ and ‘Merlin’.
23. Having considered all of the above, I am satisfied that Coillte have taken reasonable steps to identify and locate information relevant to this request. It is important to note that where a public authority refuses a request for records under article 7(5) of the AIE Regulations, the questions is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. The Act does 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.
24. It is also important to note that we do not generally expect public authorities to carry out extensive or indefinite searches for records simply because an applicant asserts that more records should or might exist or rejects a public authorities’ explanation as to why a record does not exist. What is required to rely on article 7(5) is that the public authority has taken all reasonable steps to locate the record sought.
25. As set out above, Coillte did not provide the appellant with an internal review decision within the time period prescribed by the AIE Regulations. Due to this, a deemed refusal arose on 23 October 2024. I have found that Coillte have taken reasonable steps to identify information relevant to this request. Accordingly, I vary the deemed refusal to refuse the request under article 7(5) of the AIE Regulations.
26. 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