Ms W and Department of Agriculture, Food and the Marine

• Case Number: OCE-135329-K9G7M1
• Decision Date: 23 October 2023
• Issuer: Department of Agriculture, Food and the Marine
• Applied Rules: Art.7(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Ms W and Department of Agriculture, Food and the Marine

From Office of the Commissioner for Environmental Information (OCEI)

Case number: OCE-135329-K9G7M1

Published on 23 October 2023

1. Background
2. Scope of Review
3. Submissions of the parties
4. Analysis and Findings
5. Decision
6. Appeal to the High Court

Whether the Department is justified in refusing access to environmental information on the basis that no such environmental information is held by or for it

Background

1. On 16 November 2022, the appellant sent the following request for information to the Department in relation to a refusal letter issued for the “application of afforestation pre-approval application” for file reference CN66724:

“I refer to the refusal letter dated 5 February 2014 in relation to CN66534 (copy attached). The refusal letter states that “the forest service has a long standing agreement with local community groups to refuse any new afforestation in Rockchapel”. Please provide by email:

1.a copy of the agreement that applied in February 2014 between [the Forest Service] and local community groups for [the Forest Service] to refuse any afforestation in Rockchapel.

2.a copy of all subsequent agreements (after Feb 2014) between [the Forest Service] and local community groups for [the Forest Service] to refuse any new afforestation in Rockchapel, including the agreement currently in place as at November 2022.”

2. The Department issued its original decision on 16 December 2022. It refused the appellant’s request on the basis that it had been unable to locate any relevant records. It outlined the steps it took to ascertain whether it held the information requested. These included:

• “A search of the Departmental database(s) in relation to CN66534. The requested documents were not found,
• A search of the physical file for CN66534. The requested documents were not found,
• An email to the certifying inspector and grade 1 inspector, neither of whom could provide copies of the requested documents.”

3. On the same day the appellant responded to the Department requesting an internal review. In it she sought to be provided with the following information as part of the internal review decision:

“1. The timeframes relating to all steps taken by the internal reviewer to locate the requested information.

2. Any additional steps taken by the internal reviewer that were not taken by the original decision maker, to locate the requested information.”

4. On 13 January 2023, the Department issued its internal review affirming its original decision. It said:

“I affirm the decision of the original decision maker to refuse access to the information requested under Article 7 (5) of the AIE Regulations as the records you requested either do not exist or cannot be found after what I consider to be all reasonable steps being taken to locate them. A search of the relevant database(s) has returned no records relevant to those requested by you. Enquiries made with the relevant personnel has returned no records relevant to your request.”

5. The appellant appealed to this Office on 9 February 2023.

6. I am directed by the Commissioner for Environmental Information 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:

• 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.

Scope of Review

8. 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, this Office will require the public authority to make available environmental information to the appellant.

9. I note that in its submission to this Office the Department requested advice in relation to residency requirements for appellants making an application under the AIE Directive.

10. I also note that in her submission to this Office, the appellant asked that this Office “establish whether the requested information was, or is being, withheld by [the Department] as a consequence of pressure being brought to bear on the AIE Unit of [the Department].”

11. I consider it important to set out at this juncture, the jurisdiction conferred on this Office by article 12 of the AIE Regulations. Article 12(5) of the AIE Regulations provides that on receipt of an appeal, “the Commissioner shall –

a. review the decision of the public authority;

b. affirm, vary or annul the decision concerned, specifying the reasons for his or her decision, and

c. where appropriate, require the public authority to make available environmental information to the appellant, in accordance with these Regulations”.

12. The “decision of the public authority” referred to in article 12(5) is, according to article 12(3), the decision made at internal review stage (if such a decision has been made). It is a decision on the extent of the information to be provided to the appellant on foot of their request for environmental information. The function of this Office is to review the decision made by the Department at internal review stage in which, pursuant to the appellant’s request, it reviewed its decision to refuse access to information on the basis that no such information was held by or for it. I acknowledge that the Court of Appeal has made clear in Redmond v Commissioner for Environmental Information [2020] IECA 83, that proceedings before this Office are “inquisitorial rather than adversarial in character” and “the extent of the enquiry is determined by the Commissioner, not by the parties” (paragraph 51) and that the High Court in M50 Skip Hire & Recycling Limited v Commissioner for Environmental Information [2020] IEHC 430, made it clear that the Commissioner “enjoys a wide jurisdiction to conduct a de novo consideration of a request for access to environmental information”.

13. However, in circumstances where the Department has not raised the residency issue as a basis for refusal of the request and has not made any further submissions on the point and where the appellant has provided no further detail as to the basis for her suggestion that the Department’s failure to provide her with the information requested is due to “pressure being brought to bear on the AIE unit”, I do not consider it necessary or appropriate, to extend the remit of this Office’s enquiry beyond whether the Department’s refusal is justified on the basis of article 7(5) of the Regulations.

14. To that end, this review is concerned solely with whether the Department was justified in refusing access to environmental information on the basis that no such environmental information is held by or for it.

Submissions of the parties

15. The appellant submits that evidence indicates that the requested information has existed at some point and that it is not credible that the Department has taken all reasonable steps to locate all of the information requested.

16. The Department submits that “the requested information is not held on any Departmental database. Enquiries were made with personnel in the Inspectorate who confirmed that no records exist in relation to this request. At internal review stage the decision was affirmed under Article 7(5). Additional enquiries were made with the Inspectorate, who again confirmed that...