Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-144901-F6V6J3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department conducted adequate searches to identify the information requested in accordance with article 7(5) of the AIE Regulations.
9 June 2025
1. On 3 September 2023 the appellant made a request for environmental information to the Department of Housing, Local Government and Heritage (the Department) for:
“All information (e.g., reports, images, videos, forms, geospatial data) associated with Article 17 reefs [Habitat type 1170] between Howth Head and Kilmichael point.”
2. On 29 September 2023 the National Parks and Wildlife Service (NPWS), the relevant executive agency under the Department, issued its original decision, stating it was granting access to the requested information and releasing 31 documents/spatial records, which it had identified as falling within the scope of the request.
3. On 23 October 2023 the appellant requested an internal review decision, citing:
“With reference to the Schedule of Records, the document contains a number of abbreviations and codes, but we can see no way to decipher these (e.g., IE000113, GB001117, LAEA, etc.). Could you please provide us with a plain language interpretation of the codes? In addition, we would like to have the source data from which the shapefiles provided in the records were derived (e.g., for 'SeasearchMarineSurveys2000' (record 27), I assume that there are individual submissions, reports and/or images associated with these discoveries, similarly so for records 23, 24 and others)”.
4. The Department issued its internal review decision on 27 November 2023, in which it affirmed its original decision, citing:
“Having reviewed the documentation I am satisfied that a thorough search was carried out to identify records that are relevant to your request. I affirm the decision of the original decision maker to grant access to the information requested. In particular, I have ascertained that the format of the spatial coordinates requested is the only format available by the relevant record holder”.
5. On 22 December 2023, the appellant appealed to my Office, on the basis of their view that the Department had not returned all relevant records within the scope of the request.
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 of Housing, Local Government and Heritage. 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’).
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. The appeal is concerned with whether the Department conducted adequate searches such as to identify all information relevant to the appeal, in accordance with the implicit requirement of article 7(5) of the AIE Regulations.
10. In their appeal to the Office, the appellant cited that:
“On review of the information, and in particular the metadata associated with the Geospatial Information System (GIS) data received, it became clear to me that further information that was covered by the request had not been released. I sought this information through the internal review process, outlining specifically the type of material sought, but in response to the internal review, no further records were forthcoming.
The GIS data relates to point reef data and outlines specifically the type of reef at each location. For example, the GIS data indicates a number of Modiolus modiolus reefs in the Irish Sea but no information was forthcoming as to how and when these reefs were discovered and there is no mention in any of the documents provided (aside from the GIS metadata) of Modiolus modiolus reefs.
To further elucidate this point, please see Table 1 (attached), which provides an example the of metadata extracted from the GIS data provided to us. Please note that the data is extensive and this only relates to one specific reef type. This metadata identifies the original ‘source’ of the reef data, but none of the source material is included in the records provided.
These include:
• ‘DCENR Oblique Aerial Photography 2003’
• ‘NPWS Irish Sea Reef Dive Survey 2010’
• ‘SeaSearch’
• ‘EuroBisCelticSeaReefSp’
• ‘BioMarReef’
In addition, with reference to the Schedule of Records provided with the original request, the document contains several abbreviations and codes (e.g., IE000113, GB001117, LAEA, etc.) but with no key and no way to decipher these codes. We requested that the AIE officer provide a plain language interpretation of the codes but did not receive any response. This makes the data very opaque and, while I hoped that these issues would be addressed in the internal review, they were not”.
11. In submissions from the Department to this Office received 18 January 2024 it contended that“all records held by the Department were released” and provided the following in response to specific issues raised by the appellant:
“The additional information requested is linked to a desk study completed by an external consultant who was investigating data from other sources. All these data sets were not submitted with the final report to NPWS as they are held by third parties. The NPWS only holds metadata of the records as spatial data. The metadata sources as noted:
•DCENR Oblique Aerial Photography was completed by that Department to understand coastal erosion in the early 2000s. That data may be requested from the Department of the Environment, Climate and Communications through the portal (https://www.floodinfo.ie/).
•The NPWS Irish Sea Reef Dive Survey report is available to download from this source (https://www.npws.ie/sites/default/files/publications/pdf/MERC_2010_ReefsSurvey.pdf).
All GIS information on this survey has been included in the documentation originally supplied.
•SeaSearch is a volunteer body who can be contacted through this portal (https://seasearchireland.ie/) .
There is a list of queries about records in Table 1. The majority of the data are sourced from EuroBis (https://www.eurobis.org/). This is an open access portal. Data collected by the BioMar survey in the 1990s has been uploaded to the National Biodiversity Centre (https://maps.biodiversityireland.ie/Dataset/258).
It should be noted that records included in Table 1 signify the presence of Modiolus modiolus bivalves. This species has the potential to form reefs in Irish waters but no extant reefs have been identified. The records are more accurately interpreted as the presence of individual animals and have been collected because Irish authorities have been actively looking for biogenic reefs formed by this species without success. In relation to the abbreviations and codes (e.g., IE000113, GB001117, LAEA, etc.), these are geospatial codes, there is a description of the record in the schedule of records”.
12. A further exchange of comments followed the sharing of the Department’s submission to the appellant:
Appellant:“We still are of the opinion that important reef data associated with the Subtidal reef survey (MERC, 2013), and the Marine Ecological Surveys Limited (MESL) (2017) Reef habitat in Irish Intertidal and near-¬shore waters. Unpublished report to National Parks and Wildlife Service. Edited by David Alexander, Elena Maher and Vicky West, have not been provided.
Department Response:“NPWS are of the opinion that data available to the NPWS have been provided. We assume MERC (2013) is the MERC (2010) report provided.”
Appellant:“We would also be interested in the results of the searches for Modiolus modiolus (Horse Mussel) reefs to which the Department refer but none of these have been provided.”
Department Response:“The following was outlined in our appeal response - It should be noted that records included in Table 1 signify the presence of Modiolus modiolus bivalves. This species has the potential to form reefs in Irish waters but no extant reefs have been identified. The records are more accurately interpreted as the presence of individual animals and have been collected because Irish authorities have been actively looking for biogenic reefs formed by this species without success.”
Appellant:“Further to my earlier email, I happened to come across an NPWS slide showing three Reef reports from 2010. This might be helpful to the Department in ensuring that all data have been provided.”
Department Response:“2 of these reports were not provided as records because they fall outside the geographic scope of the AIE request. The 3rd report was provided."
13. The Department stated that the Marine Unit in the Scientific, Advice and Research Directorate of the NPWS was the primary unit subject to searches, alongside the NPWS Data/GIS section, the Department stated that this unit is responsible for keeping all records associated with the marine environment.
14. With respect to how searches were conducted, the Department stated that electronic folders held by four relevant Subject Matter Experts, were searched for information falling within the scope of the respect, this encompassed folders belonging to two former NPWS marine scientists, one data/GIS lead and one marine habitats scientist, alongside a search undertaken of the NPWS centralised data repository.
15. The Department further stated that all records on this topic are held electronically and stored in the shared folder hosted on OGCIO servers, that this shared folder holds all data that is held by this section and that a complete search was undertaken of that resource.
16. The Department further noted that the data provided to the appellant was identified as falling within the geographic scope of the request, and that while other data sets were referenced within the reports provided, these data sets are not owned by NPWS and are not held on their behalf.
17. In this case, the appellant contends that the Department should hold further information relevant to their 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 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”.
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. 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 particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied. What will be considered reasonable will vary from case to case.
20. In reviewing the contentions outlined in the appellants submissions detailed in paragraph 10, alongside the Department’s responses to same, outlined in paragraph 11, and 12, I am of the view that the Department has provided the appellant with the records it holds within the scope of the request. Further that it has addressed, by way of information with respect to the geospatial codes/abbreviations and reference to third-party source material, the queries outlined by the appellant in their appeal.
21. The Departments’ contention that it does not hold further source data, alongside its description of searches undertaken detailed in paragraphs 13-16, is in my view reasonable, in the context of the scope of information requested, and, I am persuaded on this basis that it has met its obligation with respect to article 7(5) of the Regulations and holds no further information with respect to the request.
22. Accordingly, I will affirm the decision of the Department.
23. It is notable in this case that the while I am satisfied with the information provided by the Department to the OCEI concerning this appeal, the internal review decision provided to the appellant lacked sufficient detail to address the issues raised. I remind the Department of their duty to give reasons, most crucially at internal review decision stage, when issuing decisions under the AIE regime.
24. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department’s decision.
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