Decision
Mr Y and Department of Agriculture, Food and the Marine
From Office of the Information Commissioner (OIC)
Case number: OIC-160566-P6T1T3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-160566-P6T1T3
Published on
Whether the Department was justified in refusing access to records relating to a tender for snaring badgers
21 January 2026
On 29 March 2025, the applicant made a request to the Department for access to any documentation surrounding the current tender for the trapping of badgers. In subsequent correspondence with the Department, the applicant said he had hoped to receive information on the winner of the current tender. The applicant disputed comments made by the Department “that body restraints are used and not snares”. He asked that his request be altered to “any documentation surrounding the current tender for the snaring of badgers”.
On 8 May 2025, the Department refused the applicant’s request under section 15(1)(a) of the Act. The Department said that no documentation exists in relation to the practice of “snaring badgers”. It said “This FOI is being refused, as it just cannot be answered. There is no current tender for snaring badgers. DAFM do not engage in the snaring of badgers”.
On 23 May 2025, the applicant requested an internal review of the Department’s decision. He said that he noted the Department’s position that the devices in question are not snares, but “body restraints.” He said that the distinction being made appears to be one of terminology rather than substance, and that it his view that the public has a right to access information using language that accurately reflects the real-world application and widely understood meaning of such devices. On 30 June 2025, the Department affirmed its original decision. It again said that there is no tender for the snaring of badgers, that it had issued a tender for Auxiliary Services for TB Eradication Programmes (which sought trained and skilled operatives to assist in delivery of the badger capture and inspections programme) and that a copy of this tender was provided to the applicant. On 14 July 2025, the applicant applied to this Office for a review of the Department’s decision.
During the course of the review, the Department provided submissions to this Office outlining the reasons for which it maintains that it does not hold records relevant to the applicant’s request. The applicant was provided with details of those submissions and was invited to make further submissions, which he duly did.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence outlined above and to the submissions made by the Department and by the applicant. I have decided to conclude this review by way of a formal, binding decision.
While there seems to be a dispute between the applicant and the Department about the terminology used to describe the device for capturing badgers, I am satisfied that the applicant’s request concerns any documentation surrounding the relevant tender for the catching of badgers. Accordingly, this review is concerned solely with whether the Department was justified in refusing the applicant’s request under section 15(1)(a) of the FOI Act.
Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and to the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
As noted above, the Department provided this Office with the reasons for which it maintains that it does not hold records relevant to the applicant’s request, details of which were provided to the applicant. The applicant also made submissions in support of his position. While I do not propose to repeat the submissions from both parties in full here, I confirm that I have had regard to them for the purposes of this review.
The Department said that, in response to the applicant’s original request for documentation surrounding the trapping of badgers, it provided him with a copy of the current tender for the provision of auxiliary staff to assist in the laying of stopped body restraints. However, as the applicant had used the term “snaring” in the subject line of his email to the FOI unit, the Department stated that it advised him that it does not engage in the laying of snares, but of body restraints. The Department said that the applicant then asked for the wording of his FOI request to be altered to include the term “snaring” instead of “trapping”.
The Department’s position is that the applicant’s reworded request was now explicitly asking for information on a process in which it does not engage. It said that no documents exist or have ever existed in relation to a tender for the use of snares to catch badgers as no such tender exists and the Department does not use snares to capture badgers. The Department said that the Wildlife Act 1976 (Approved Traps, Snares and Nets) Regulation 2003 defines the different types of equipment that can be used to legally capture wild animals in Ireland. The Department stated that Section 3 (b) defines what a snare is while Section 3 (d) defines what a stopped body restraint is. The Department said that it is guided by and must adhere to the relevant wildlife legislation and that this legislation clearly differentiates between a snare and a body restraint.
The applicant argued that stopped body restraints and snares are effectively the same in design, function, or harm caused. According to the applicant, the snare currently used was developed in 1996, in compliance with the 1976 Wildlife Act. He said that the amendment sought and applied seven years later, in 2003, changed nothing as the snare used before and after the amendment was exactly the same, the only difference being that the term “body restraint” was introduced into the legislation. The applicant maintained that any records about stopped body restraints used on badgers are relevant to his FOI request about snaring, because the terms are being used interchangeably in practice.
The applicant initially requested any documentation relating to the current tender for the trapping of badgers. He subsequently amended the wording of his request to the “snaring” of badgers. The Department insists that no such documentation exists because it says that, in line with the relevant legislation, it does not engage in the setting of “snares”, but in the laying of “stopped body restraints”.
It is evident from the correspondence in this case, that the applicant and the Department dispute the terminology and description of the device used to capture badgers. Nonetheless, it seems to me that both parties are aware that the tender process at issue is the tender for Auxiliary Services for TB Eradication Programmes, a component of which is the setting of devices for the capture of badgers. No arguments have been made that the records sought relate to a separate tender process. The Department refused the applicant’s request under section 15(1)(a) of the FOI Act because it considers that the applicant is asking for information on a process in which it does not engage. Leaving aside the dispute about the terminology used to describe the device used to capture badgers, the applicant believes that that further records ought to exist relating to the tender process in question. As such, the question I must consider in this case is whether the Department has considered all relevant records in making its decision on the applicant’s request for any documentation relating to the tender process in question.
I understand that documentation relating to this tender is publicly available on the government’s Etenders website, including the Request For Tender (RFT), a Pricing Schedule and Tender Response Document. The Investigating Officer asked the Department whether it holds any further records relating to the tender, other than those that are publicly available. In response, the Department said that additional records would be held relating to the tender process, including draft versions of the RFT, the tender submission, the contract between the Department and the successful tender applicant, records of payments to the latter and records of the badgers caught during the programme. While the Department indicated that it may be prepared to release some of the records it holds, it said that certain records contain commercially sensitive information.
This case came before this Office on the basis that the Department refused the applicant’s request under section 15(1)(a) of the FOI Act. It is evident in my view that the Department holds records relating to the tender process, other than those that are publicly available. Therefore, I am satisfied that the Department was not justified in refusing the applicant’s request under section 15(1)(a) of the Act, and I find accordingly. In the circumstances, I consider that the most appropriate course of action is to annul the Department’s decision and direct it to consider the applicant’s request afresh in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and subsequent review by this Office if he is not satisfied with the Department’s decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision and direct it to undertake a fresh decision on the applicant’s request in accordance with the provisions of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Richard Crowley
Investigator