Cinneadh
Mr Z and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-145628-S7V5D1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-145628-S7V5D1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified, under section 15(1)(a) of the FOI Act, in refusing access to further certain Forest Service records on the basis that they do not exist or cannot be found
16 January 2025
The Department’s Forest Service is responsible for the development of forestry within Ireland. On 27 March 2023, the Information Commissioner annulled the Department’s decision on the applicant’s FOI request for certain Forest Service records, and directed it to make a fresh decision on the request (case OIC-119845 refers). This was the second time that the Department’s decision on the same FOI request had been reviewed by this Office, having previously been annulled and the case remitted back to the Department on 8 November 2021 (case OIC-111164 refers).
The records sought by the applicant, a registered forester, on 2 April 2021, fall into two categories: (1) all records regarding seven specified forestry applications made to the Forest Service by his named company (“the forestry application records”) and (2) records containing details of the Forest Service’s inspection policy, referral policy, administration/referral policy regarding native woodland conservation applications, and its complaints procedures (“the policy records”).
On 24 April 2023, the Department informed the applicant that it was necessary to extend the period for consideration of his request by 4 weeks under section 14(1)(a) of the FOI Act. On 25 April 2023, the applicant sought a review by this Office of the Department’s decision to extend the time to consider his request. While not relevant to this review, this Office subsequently issued a decision finding that the Department had not been justified in extending the period for consideration of his request under section 14(1)(a) of the FOI Act (case OIC-137742 refers).
Notwithstanding that, the Department issued its new decision on 18 May 2023, providing the applicant with a Schedule of Records listing 1190 records, all of which were refused under section 15(1)(i) on the basis that the applicant had been provided with the records previously. In addition, a further Schedule listing 131 records that had been identified following additional searches was provided. Of these, 128 were released with small amounts of third party personal information redacted from three of the records. The Schedule also listed three records as 129, 130, 131 (Forest Service Inspection Policy, Forest Service referral policy, Forest Service administration/referral policy regarding Native Woodland Conservation applications) which it said did not exist and were therefore refused under section 15(1)(a).
The applicant sought an internal review of that decision on 30 June 2023. He said he was not satisfied that all records were provided and attached a detailed list of questions. While some of the questions related to records that he believed should exist but that hadn’t been released, many of the questions related to the Forestry Service’s processes and to various actions that were taken/not taken in relation to his specific forestry applications. On 19 July 2023, he sent further queries to the internal reviewer about the policy records requested (inspection policy, referral policy, complaints procedures).
On 24 July 2023, the Department issued a decision on the internal review, in which it varied the decision. 69 further records were found and listed on a third Schedule of Records. All 69 records were released in full. The internal reviewer then sought to answer the questions raised by the applicant, while noting that many of the issues raised fall outside the FOI process. She invited the applicant to discuss the issues further with her in an effort to resolve them.
On 23 January 2024, the applicant applied to this Office for a review of the Department’s decision on the remitted request. During the review, a summary of the Department’s submissions was provided to the applicant for comment. The applicant provided a detailed response to this.
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 submissions made by the parties, including supporting documentation, to the above exchanges, and to the previous decisions issued by this Office. I have decided to conclude this review by way of a formal, binding decision.
In his application for review, and in submissions to this Office, the applicant raised a number of points about the Forestry Service’s processes, and his various forestry applications, which I am satisfied fall outside the FOI process. As the applicant is aware, this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Notwithstanding that, the underlying ground for review is that the applicant does not believe that all records falling within the scope of his FOI request have been identified and released. This review is therefore concerned with whether the Department was justified, under section 15(1)(a) of the Act, in refusing to release any further records relevant to the request.
Before setting out my substantive analysis of this matter, I wish to make a number of preliminary points.
It is extremely unusual for a decision on the same FOI request to come to this Office for review four times. As the applicant pointed out, it is now more than three and a half years since he made his original request. The previous decisions issued by this Office were critical of the approach taken by the Department in processing the request as well as its engagement with this Office in the course of processing the reviews. I do not intend to repeat those comments, suffice to say that the Department’s approach has fallen substantially short of what is expected of a government department in terms of carrying out its statutory obligations under the FOI Act, obligations that have been in place since 1998. The applicant’s frustration in these circumstances is entirely understandable.
It is the applicant’s view that the Department/ the Forest Service deliberately withheld records from him, materially altered documents, destroyed documents, fabricated documents, lied to him, and lied to this Office. He has alleged that he and his company have been treated unfairly, that he has been a victim of corruption, and that offences have been committed under the Criminal Justice Acts. These are very serious allegations. In response, the Department said that it wished to state categorically that at no stage were records suppressed, concealed or altered, and false statements have not been made. The applicant said that this Office should have contacted An Garda Síochána (AGS) long ago.
Specifically, the applicant referred to the properties of certain records which he says is evidence of them being altered before release and/or deliberately withheld. He said that he expects this Office to investigate why certain records were not provided to him in the course of earlier searches when the subject lines of emails and the senders were such that they should have been easily found if the Department had carried out the searches as described. Previous investigations by this Office have already found that the earlier searches and decision-making were inadequate and while I appreciate that it is frustrating that it took so long for certain records to be found and then released, I do not see that it would serve any useful purpose for me to examine why any individual record was or was not found at a particular point in time, especially given the volume of records at issue overall.
The applicant has said that he does not care if a record was eventually provided, but rather that he is concerned with “why it was withheld and who was responsible”. Reviews by this Office are considered to be de novo which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. The question I must consider in this case is whether the Department was justified in refusing to release any further relevant records, having taken all reasonable steps to ascertain their whereabouts. I therefore do not intend to examine the 1,387 records that have already been found and scheduled, with the vast majority released in full, except where it has been highlighted that something contained in a specific record may suggest the existence of further records. Neither do I intend to examine properties or metadata of any of the records released to the applicant, except to say that it seems to me that in the course of processing an FOI request, it may not be possible to process electronic records without impacting on the metadata i.e. the properties are altered each time a document is opened, saved into a different folder, renamed for scheduling purposes etc. It is not apparent to me that this is sufficient to give rise to the applicant’s suggestion that an offence may have been committed under section 52 of the FOI Act and I will give it no further consideration. Moreover, as the applicant is aware and has been stated again above, this Office has no remit to investigate complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. If the applicant remains of the view that an offence has been committed, it is open to him to make such a report to AGS.
The applicant referred to section 44 of the FOI Act which gives the Commissioner the power to carry out an investigation into the practices and procedures of an FOI body for the purposes of compliance with the FOI Act. He said that he has real concerns about why this Office has not investigated the practices and procedures used by the Forest Service/the Department for the purpose of enabling him to exercise his rights according to the FOI Act. Under section 44, it would, in principle, be open to this Office to carry out an investigation of the Department if we had concerns about ongoing and widespread poor practice and non-compliance with the FOI Act. However, a decision to undertake a general investigation under section 44 of the Act is not one that is taken lightly and is quite uncommon. Among the factors considered in deciding whether to initiate an investigation and publish a report are the resources currently available to the Office, whether the process and outcome are likely to be concerned with systemic issues within public bodies, and whether the investigation has broad public interest implications or has potential to bring about improvement in FOI practices and procedures across the public sector. To date, this Office has conducted only a small number of investigations under section 44, all of which involved more than one public body and had wider relevance across the public service. While there is no doubt that the Department’s handling of this case has been extremely poor, and I refer to previous comments in this regard, in the particular circumstances of the case, I am satisfied that an investigation under section 44 is not warranted.
Section 15(1)(a) of the FOI 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. Our role 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 the reasoning used by the decision maker in arriving at his/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in such 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. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.
The Investigator sought a submission from the Department in relation to the details of the searches undertaken to locate relevant records and asked it to address specific questions.
In relation to the records it would expect to hold falling within the scope of the request, its approach to records management and the searches carried out, the Department said the following:
• Records relating to forestry application are stored in both electronic and hard copy format. Hard copy files are held in various areas of the Department of Agriculture offices at Johnstown Castle Estate, Wexford. On receipt by the Department, forestry applications are assigned a reference number, with CN indicating an afforestation application and TFL indicating a felling application, and NWS indicating a native woodland application. At the time relating to the request, a paper file was created for each application. Paper files are filed in numerical order in filing cabinets. Further documentation is also held electronically on the Department’s IFORIS (Integrated Forestry Information System). IFORIS is a monolith web application which manages the lifecycle and payment of Forestry applications. Many different user types exist within IFORIS such as Preapproval Admins, Felling Admins, Change of Ownership Users, First Grant Admin users etc. The main functional areas of IFORIS are concerned with Licensing (Preapprovals and Felling) and Payments (Grants and Premiums). The Department uses eDocs for the storage of its electronic records. Microsoft Outlook is used for e mail correspondence.
• Paper files were located in respect of each of the specified forestry applications and any records within the scope of the request were released to the requester. IFORIS was searched using the relevant application number. Outlook was searched using the relevant application numbers. Searches were carried out by the individuals contacted in areas they thought appropriate. Staff would have been aware that they had to search for both electronic and non-electronic records (including e-mails, spreadsheets etc.) and for records held on formal files, temporary folders or in any other manner. In relation to records management, emails are saved on the shared drives and more recently on the eDocs system. Each staff member is responsible for saving emails that they judge should be added to the Departments records, as they will be deleted after 24 months from the Department’s email system. Not all emails are saved, and it is at the discretion of the staff member whether an email is judged to contain information that merits being filed as a record or not.
• All individuals relevant to the request were consulted and their records searched. This included staff from the Forestry administrative area and the Forestry inspectorate. The records requested were up to the date of the original request 02/04/2021. Guidance was provided to staff in the Division on how to undertake a search. The Department’s email retention policy is that emails are deleted from the user’s mailbox after 2 years and therefore many of the relevant emails had already been deleted from individual mailboxes. In this case, a decision was made to search the electronic archives of the Department to search for deleted emails in the inboxes of 14 individuals. The searches were done using the using the relevant application numbers.
• All emails over 24 months old have been deleted permanently from individual user mailboxes and are unrecoverable from those mailboxes, in accordance with the Department’s email retention policy. The removed emails are retained centrally for a set period and can be recoverable in certain circumstances. Each staff member is responsible for saving emails that they judge should be added to the Departments records. Not all emails are saved, and it is at the discretion of the staff member whether an email is judged to contain information that merits being filed as a record or not.
The Department said that, in its view, very comprehensive and extensive searches for records relevant to the request had been carried out on 6 different occasions, including a search of the electronic archives of the Department, and, at this point, it was satisfied that all reasonable searches have been carried out.
The applicant had provided details of further forestry application records that he believed should exist, specifically, “worklists”, IFORIS ecologist’s report, and ETS reports. The Investigator asked the Department to comment on each of these and the basis for its position that it does not hold these records. Its responses were as follows:
• Worklists are a list of applications on hand at various stages in the application process. Worklists are constantly changing and are mainly used to assign an application to an individual or section for work to be carried out on the application. Worklists are generated from the IFORIS system and are not kept on spreadsheets.
• The IFORIS Ecologist report screenshot that was provided by the applicant as an example is a screenshot from IFORISINET. IFORISINET is a web application which manages the submission of Forestry applications. Many different user types exist within IFORISINET such as Agents, Individuals, Intermediaries and RO Map Users. The main functional areas of IFORISINET are concerned with submissions of Preapproval, First Grant, Second Grant, Felling and Sub-premium Applications. Not all files have ecological reports. Department officials do not have access to this system. However, the requester has access to this system. If the appellant cannot see this report in IFORISNET, then it does not exist.
• The ETS (Ecological Tracking System) system was a basic way of tracking which Ecologist was assigned to a particular file that is no longer in use in the Department.
The Investigator also asked the Department about its reliance on section 15(1)(a) in respect of the policy records:
• Inspection policy and referral policy: The Investigator said that the applicant was of the view that a record containing these policies must exist, mentioning referral protocols and a referral diagram which he said had not been provided. She asked the Department to explain the basis on which decisions are made on inspections and referrals if no written policy exists. She also referred to the SOP (Standard Operating Procedure) document for inspectors that was provided to the applicant during the most recent review, and queried whether such information was contained in the SOP. The Department said that the SOP is for internal Forestry Inspector guidance in relation to a number of schemes including the afforestation scheme and that it provides detail on assessments, inspections and referrals. It said that there are no other records available in relation to the Department’s inspection and referral policy.
• Administration/ referral policy for the Native Woodland Conservation Scheme, specifically whether all such applications are referred to Ecology: The Investigator asked the Department to explain the basis on which such applications are managed if no written document exists setting out how they are administered, and what the referral policy is etc. The Department said that there is no policy document available in relation to the Native Woodland Conservation Scheme. It referred to previous information provided to this Office in respect of this scheme, wherein it said that all native woodland applications are allocated to a dedicated ecology team.
• The Forest Service’s Complaints Procedure: The Investigator asked how the Forest Service knows what steps to follow when a complaint is received if it does not hold a complaints procedure. The Department responded that it does not hold any complaints policy other than the general departmental policy which can be found on its website and that this policy is used by all areas of the Department including Forestry.
The Investigator provided the applicant with details of the Department’s submissions, as summarised above, and said that it was her view that, at this point, reasonable searches had been conducted, with 1,387 records identified as falling within the scope of the request, the vast majority of which were released to him.
The applicant provided a detailed response. In summary, he remains very unhappy and said that this Office was giving the Department the benefit of the doubt in circumstances where it had proven itself to be consistently unreliable, and continued to turn up further records at every stage. He submitted that the Investigator should visit the Department’s offices and conduct searches of all its Microsoft systems using a ‘global admin’ log in.
As summarised under Preliminary Matters, he said that he believed that the Department/Forest Service had lied to this Office, and to him, and that records had been deliberately withheld and materially altered or destroyed. In relation to the specific question as to whether all reasonable searches had been carried out, he said that there is no evidence that reasonable steps have been taken and that in fact the opposite was true. He said that all the Forest Service records are served in their Microsoft system, whichever version it uses, and that there was no evidence that this system had been searched. He said that he had not sought emails only but ‘all records’ and that no MS Access records, texts, Whatsapp messages or Worklists had been provided.
He disputed that Outlook was searched using the relevant application numbers, referring to the Department’s submission that ‘searches were carried out by the individuals contacted in areas they thought appropriate’ (applicant’s emphasis) and that searches were carried out of ’14 individual mailboxes’. He queried who decided who was appropriate to contact and why, or how. He said that according to his records, at least 39 individuals were involved in emails relating to his request and that therefore there seems to be at least another 25 searches required. He queried how searching 14 individual mailboxes could possibly be considered a full and reasonable search.
The applicant disputed the Department’s statement that worklists are generated from the IFORIS system and not kept on spreadsheets, quoting a 2022 report from the Project Woodland working group which refers to teams ‘drowning in worksheets’ and that work not tracked in IFORIS is tracked in other systems mainly comprising MS Excel, Access and email. The applicant reiterated that if a system wide Microsoft search was completed, this would show up Access records. He also included an email from 16 September 2022 which includes information extracted from the ‘Native Woodland Scheme excel spreadsheet’ in relation to some of the applications falling within the scope of the FOI request.
Similarly, the applicant did not accept the Department’s position in relation to the ETS, again referring to the report from the Project Woodland working group, which described the ETS as ‘a DAFM user developed MS Access application. It contains all files which are on the iFORIS Ecology worklist i.e., “referred to ecology”’ and said that reports were run on this system every Thursday. The applicant said that the system was in use at the time he made the FOI request and that therefore reports from this system referencing the relevant Forestry applications should have been released to him.
In relation to the Department’s position that no other records were available in relation to its inspection and referral policy, the applicant said that he had not requested a ‘record’ here but details of the inspection and referral policy. He said that the Department hadn’t refused this part of the request and he quoted from text previously provided to him outlining the Inspection Policy, Referral Policy, and Native Woodland Scheme Referral Policy. He said that it was very important for him to discover if this [information] was true or false, whether it was completely fabricated or based on actual official policy. He also referred to a reply by the Minister to a Parliamentary Question on this topic in which the Minister referred to an ‘inspection and referral regime’, a ‘system of consent’, and a ‘process’. In further submissions, the applicant quoted statistics from the Department which he said indicated that between 36% and 47% of all applications are referred to an Inspector for a detailed assessment but that 100% of applications made by him have been referred and that this cannot be a coincidence. He said that he has a right to fair procedures and to know what these procedures are.
In relation to the Investigator’s question as to how the Forest Service knows what steps to follow when a complaint is received if it does not hold a complaints procedure, the applicant said he has been asking the same question for 3 years. He said that the Ombudsman receives dozens of complaints annually following on from complaints to the Department, so there must be some way of dealing with them.
The applicant referred to a specific named inspector who he said was included in at least 13 of the emails released, but that only one email from him was provided. He then made various allegations about the actions of this inspector and said that it was essential to establish whether his email was searched.
He queried the Department’s email deletion policy, saying that it did not make sense and that it seemed a little convenient. He said that deleted emails were not exempt under the FOI Act and that he considered that emails were deliberately deleted to destroy them.
Finally, the applicant said that he did thought that the Department had ignored the points made by the Commissioner in the previous decision on this case.
I have carefully considered the submissions made by the parties in this case. The question before me is whether, at this point, the Department has taken all reasonable steps to find records falling within the scope of the applicant’s request. It seems to me that what constitutes ‘reasonable steps’ in the context of section 15(1)(a) will always be dependent on the circumstance of the case. Where searches should be focused, and the form that such searches should take, depends on the nature of the records sought and the broader circumstances.
The Forestry application records
As noted, part 1 of the request was for all records relating to seven specified forestry applications made to the Forest Service by the applicant’s company. The Department’s explanations of where such forestry application records are generally held, and therefore where it focused it searches are, it seems to me, reasonable. The applicant questioned who it was that decided which individuals were the ones to ask to search for records. It seems to me to be entirely appropriate that the Department, including its FOI Officer and those staff members dealing with the subject matter of the FOI request, would generally be the ones to determine who should be asked for records and where to focus the searches. I note that queries about whether certain individuals were asked for records has been raised by the applicant over the course of this and previous reviews, and have been dealt with.
Specifically, during this review, the Department confirmed to the Investigator that the email inbox of the specific Inspector named by the applicant was one of those searched. For completeness in relation to this Inspector from whom the applicant said he had only received one email, the schedule of 69 records issued on 24 July 2023 appears to list 11 emails from this Inspector, all released in full.
In respect of the applicant’s submission that searching 14 inboxes was insufficient, and that this omitted a large number of relevant staff members, it should be noted that the reference to 14 individuals was with respect to a specific search of the electronic archives of the Department for emails already deleted, presumably from Outlook, in line with the Department’s email retention policy. I note the Department’s submission that emails considered relevant for retention longer-term are saved on a shared drive and, more recently, on eDocs. Records management and data retention policies are matters for FOI bodies themselves to determine, and a record that cannot be released because it no longer exists, having been deleted or destroyed in line with that body’s stated policy, is an entirely different matter to a record being intentionally destroyed after an FOI request has been made for it. Generally, this Office would not expect an FOI body to carry out searches for records that have been deleted in this way. However, given the circumstances of this case and the length of time since the original request was made, the Department opted to take this additional step. For completeness, I should say that no evidence has been provided to support the applicant’s assertions that records have been deliberately destroyed, which is an offence under section 52 of the Act.
The applicant submitted that certain types of records appeared to have been omitted from the search altogether including text messages and Whatsapp messages. The Investigator queried this with the Department who responded that such methods of communication are not generally used by the Forestry Service in respect of forestry applications and therefore it did not deem it necessary to carry out searches for such records. I find this to be a reasonable approach to take in this case.
The Department clarified that it has already provided ETS reports in respect of four of the forestry applications but that it could find records concerning the other three applications. With respect to the ‘worklists’, and the email of 16 September 2022 referenced by the applicant, the Department said that this was the only worksheet record relevant to the request. It said inspector worklists are on iFORIS which can be extracted as Excel worksheets but that this is rarely done as active worklists can be viewed in iFORIS and downloading it in such format in not required. It said that the Head of Archaeology had confirmed that they did not use MS-Excel or MS-Access to track the worklists off staff members, and rather work off a unified worklist on iFORIS as cases are assigned and reassigned to specific individuals. Having regard to the positions of both parties, it seems to me that these particular records sought by the applicant are the type of records used by individuals and organisations for keeping track of work and progress on a day to day basis. Generally, such records are non-static and are updated on a regular basis with projects or tasks completed being deleted or falling off the list and replaced with newer and more recent work. I would not expect the Forest Service to hold such records, unamended, on a long term basis and I find its explanations for why it does not hold more of these records as they relate to the relevant forestry applications, to be reasonable.
The applicant highlighted that on each occasion that the Department has carried out further searches, that more records have been found, despite the Department having said after the preceding search that no further records existed. He made the point that, in these circumstances, how can we be sure that yet more records will not turn up if another search is carried out? The applicant appears to be of the view that the only way to be sure that comprehensive searches have been carried out is for an Investigator from this Office to attend at the Department’s offices and for a system wide electronic search to be carried out across all of the Department’s Microsoft platforms and programmes.
It is important to note that section 15(1)(a) requires an FOI body to carry out reasonable, not exhaustive searches. It is well established that this Office does not expect FOI bodies to carry out indefinite general searches because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. Neither does it expect an FOI body to account for every actual, or perceived, gap in a set of records, particularly when dealing with vast quantities of records. While section 45(2) of the FOI Act permits the Commissioner to attend at the premises of an FOI body and to be provided with information or records that are reasonably required for the purposes of a review, this is a power that is rarely invoked. As previously noted, the Department’s processing of the applicant’s request has been very far from ideal. However, while they were released in a piecemeal fashion after multiple searches, I note that at this stage approximately 1,387 records relevant to the request have been identified and scheduled, with the vast majority released in full to the applicant. It is of course quite possible that another search would turn up further records, but it seems to me that at some point such searches would move from being focused and reasonable to being broad and speculative and I am of the view that the applicant’s request for continuing the searches and conducting them at a system-wide level falls into this latter category. On this basis, and taking account all of the reasons set out above, I am satisfied that the Department is justified, under section 15(1)(a), in refusing to release any further forestry application records.
The policy records
Part 2 of the request was for policy records, specifically records containing details of the Forest Service’s inspection policy, referral policy, administration/referral policy regarding native woodland conservation applications, and its complaints procedures. It is the Department’s position that no further records containing information relating to these matters exist. The applicant’s position, as set out in his submission, is that he is not seeking records, he is seeking an explanation of the inspection and referral policy and clarification as to whether information previously provided to him is based on official policy or ‘fabricated’. Furthermore, he appears to be concerned that his forestry applications have been disproportionately singled out for referrals and inspections.
The applicant is aware that FOI provides a mechanism for accessing records, and requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. Moreover, this Office has no remit to investigate complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. How the Department dealt with the applicant’s forestry applications is entirely outside the scope of this review, as is making any findings on the accuracy of information concerning its referral policy provided to him by the Department. This review is concerned only with the provision of records relevant to the FOI request. Whether such policy records should exist is not the question I need to determine, but rather I need to decide whether the Department has justified its decision to refuse access to them on the basis that they do not actually exist.
With respect to the applicant’s suggestion that his applications appeared to have been disproportionately referred on for further inspection/assessment, the Department said that there was not a Native Woodland Conservation Scheme (NWS Conservation) SOP document in place when these applications were being assessed. However, it said that the procedure for such applications, because they have a specialist report (Native woodland plan), is that they were referred to Ecology for assessment regardless of whether or not they screened in for Appropriate Assessment.
More broadly, the Department said that decisions around which forestry applications are referred on/inspected etc are governed by the relevant Irish/European legislation, and that these are set out in procedures, manuals and circulars available on the Department’s website. The Forestry Standards Manual, for example, provides guidance on the operational requirements of the various support schemes (Afforestation Scheme, Forest Road Scheme, etc.), which are subject to the conditions set out in each of the respective scheme documents. Arguably, the Department should have listed such documents on the Schedule of Records. However, it is my understanding that the applicant is not seeking these publicly available documents. The Department’s position, it appears to me, is that there are no separate stand-alone records that have been created that capture the Forest Service inspection policy, the Forest Service referral policy, or the administration/referral policy regarding Native Woodland Conservation applications. Whether a clear understanding of the Department’s policies in these matters can be gleaned from the publicly available documents, as well as the SOP that has been released, is not something that I can or need to address.
With respect to the Department’s position that it does not hold further records documenting its complaints procedure beyond the general policy available on its website, as has been stated a number of times, I am concerned only with what records actually exist rather than those that ought to exist. I cannot see any reason not to accept the Department’s position on this aspect of the request.
Having carefully considered the matter, and for all the reasons set out above I am satisfied with the Department’s explanation for why no further relevant policy records exist or can be found.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision. I find that the Department was justified, under section 15(1)(a), in refusing to release any further records relevant to the request, on the grounds that such records do not exist or cannot be found, after all reasonable steps to ascertain their whereabouts have been taken.
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.
Stephen Rafferty
Senior Investigator