Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150771-H8K6Q9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to the requested environmental information on the basis that no relevant environmental information was held by or for it.
9 July 2025
1. On 10 April 2024, the appellant contacted the Department with the following AIE request:
“I request an Access to Information on the Environment in relation ,as specified in Directive 2003/4/EC . I would like a copy of the Environment Report , which incorporates all the conclusions of The Strategic Environmental Assessment carried out prior to development of the bioenergy plan and program, called The Bioeconomy Action Plan 2023-2025, subsequent to the legally required The Strategic Environment Assessment as set out in Directive 2001/42/EU section 3(2). A Directive incorporated in Irish Law in July 2004. In Decision C-24/19 , which dealt with the non compliance of The Wind Energy Guidelines to EU Law, The ECJ outlined a format for deciding what constitutes a plan and a program”.
2. The Department responded to the request on 17 June 2024. It refused the appellant’s request under article 7(5) of the AIE Regulations, noting that “following examination of material held by [the Department], I have been unable to locate any records relevant to your request as currently worded, as the record does not exist”. However, the Department did provide the appellant with a copy of a Strategic Environmental Assessment (SEA) Screening Report for the Bioeconomy Action Plan 2023-2025 which it noted as relating to the appellant’s request. Beyond providing the SEA Screening Report to the appellant, the Department were not forthcoming with any further reasoning in its response. It did not explain any searches that were undertaken for the Department to reach the conclusion that no information existed such that article 7(5) would apply. In addition, the Department failed to provide the appellant with any reasoning as to why it believed that the SEA Screening Report provided to him related to his request.
3. The appellant sought an internal review of the decision on 25 June 2024.
4. On 15 July 2024, the appellant received an internal review decision which affirmed the decision of the original decision maker.
5. The appellant submitted an appeal to this Office on 24 July 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 of Environment, Climate and Communications. I have also examined the contents of the record provided by the Department. 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. Where appropriate in the circumstances of an appeal, the public authority may be directed to make available environmental information to the appellant.
8. This review is concerned with whether the Department was justified in its decision to refuse the appellant's request, on the basis that it does not hold the information sought.
9. 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.
10. In order for article 7(5) to apply, this Office must be satisfied that the Department has taken adequate steps to identify and locate all relevant environmental held by it.
11. Within his appeal to this Office, the appellant set out that his request “was initiated to obtain any records that indicated that the Decision of the ECJ in C-24/19 was considered as to why an SEA was not required for The Bioenergy Plan formulated by the government even though Energy is covered by Directive 2001/42/EU”. The appellant made reference to the Department’s original decision, quoting the following - “I have been unable to locate any records relevant to your request as currently worded”. The appellant contended that this indicates that there are records available that meet the request if the wording was changed”. The appellant added that, in his view, his request was refused because of the use of imprecise wording and not that there were no documents available.
12. The Department provided a submission to this Office outlining its position in support of its original decision in this case. The Department submitted that it carried out an internal search for documents and also liaised with the Department of Agriculture as to any records it may also hold. The Department provided key dates and actions taken to identify any information which may exist relevant to the appellant’s request. This included the following:
• “24/05/2024 – Colleague formerly responsible for the policy area, who had also received the AIE request, sent an email to the AIE responder about the SEA screening process and the agreement with DAFM on the approach taken
• 27/05/2024 – DECC call with DAFM re: AIE received and SEA process.
• DAFM confirmed SEA screening handled by DECC.
• 29/05/2024 – AIE raised and discussed during Divisional meeting
• 30/05/2024 – Search of shared folders
• 05/06/2024 – Second search of shared folders”
13. Following the above actions, the Department submitted that the SEA Screening Report, carried out by the Department, was found. The Department outlined that the Screening Report concluded that an SEA was not required for the Bioeconomy Action Plan 2023-2025. On that basis, the Department set out its position that an Environment Report “which incorporates all the conclusions of The Strategic Environmental Assessment” as requested by the appellant, does not exist. The Department noted that the appellant was provided with a copy of the SEA Screening Report.
14. The Department submitted its view that the appellant’s original request was fulfilled through the provision of the SEA Screening Report. The Department outlined that within the Screening Decision Process of the Report, that the Department considered the following:
• “European Communities (Environmental Assessment of Certain Plan and Programmes) Regulations 2004 (S.I. No. 435 of 2004) (hereafter, ‘the SEA Regulations’), as amended by the European Communities (Environmental Assessment of Certain Plans and Programmes) (Amendment) Regulations, 2011 (S.I. 200 of 2011)
• Strategic Environmental Assessment guidelines published by the Department of Housing, Local Government and Heritage (2022)
• The Environmental Agency’s (sic, missing “Protection”) ‘Good Practice Guidance on SEA Screening’ (2021)
• Article 6(3) of the EU Habitats Directive (92/43/EEC) and the European Communities (Birds and Natural Habitats) Regulations, 2011 (as amended)”
15. The Department referred to the EPA’s ‘ Good Practice Guidance on SEA Screening’ as set out above, and noted that the EPA Guidance Note fully incorporates the outcome of the case law mentioned by the appellant (ECJ case C-24/19). The Department explained that by considering the EPA’s Guidance Note as part of the SEA Screening Report and process, that the latter report fulfils the purpose of the request.
16. The Department also considered the appellant’s contention regarding his view that records would be available if the wording of his request was changed. The Department submitted its view that its interpretation of the phrase “as currently worded” from the original decision of “I have been unable to locate any records relevant to your request as currently worded, as the record does not exist” refers to the Environment report as worded in the appellant’s original request. The Department explained that such a report does not exist as it was not required following the SEA Screening Report. The Department re-iterated that this report (the SEA Screening Report) was provided to the appellant.
17. The Department also outlined its position that it remains of the view that any request for the SEA for the Bioeconomy Action Plan 2023 – 2025 would result in the same outcome as the record requested does not exist. The Department submitted that it was correct for them to refuse the request on the grounds of article 7(5) of the Regulations, and that this is supported by the provision of the SEA Screening Report.
18. The Investigator shared the Department’s submissions with the appellant for his consideration, but no response was received.
19. The Department have adequately set out its reasons for the non-existence of the SEA Report which formed the appellant’s request, along with providing details of the searches that led to the Screening Report being identified and shared with the appellant. While it is regretful that the appellant was not provided with the actual reasons for refusal on his request until the appeal reached this Office, I am now satisfied that the Department has provided adequate reasoning on its decision. I would note that had the Department provided this level of detail to the appellant in the internal review decision, it may have been the case that this appeal could have been avoided. As such I hold the view that the searches conducted by the Department were appropriate and reasonable in the circumstances. I am satisfied that the Department has taken sufficient steps to determine that it does not hold 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.
20. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department’s decision.
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.
Julie O’Leary
on behalf of the Commissioner for Environmental Information