Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-135924-D6T8X0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to the information sought on the basis of articles 8(a)(i) and 9(1)(c) of the AIE Regulations.
20 February 2026
1. On 28 January 2023 the appellant made an AIE request which sought access to the Nutrient Management Plan (NMP) of a named farm, owned by a limited company.
2. On 8 February 2023, the Department refused the request, citing that pursuant to article 8(a)(i) of the AIE Regulations, the Data Protection Act 2018 and Section 37 of the Freedom of Information Act 2014, the information was personal information which it contended is protected from release.
3. On 8 February 2023, the appellant requested an internal review decision.
4. On 22 February 2023, the Department affirmed its original decision, reiterating the reasons given in the original decision.
5. On 28 February 2023, the appellant appealed to this Office.
6. I am directed by the Commissioner for Environmental Information to carry out a review of this matter under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by all parties to the appeal. I have also considered submissions made by all third parties relevant to this case. 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. In accordance with article 12(5) of the AIE Regulations, the role of this Office in each of these appeals is to review the Department’s internal review decisions and to affirm, annul or vary it.
8. As the Department relied on articles 8(a)(i) and 9(1)(c) in refusing access to the requested information, this is confined to assessing whether that reliance was justified.
9. The appellant is seeking a copy of the Nutrient Management Plan (NMP) of the named farm. An NMP seeks to manage nutrients (primarily nitrogen, phosphorus and potassium) in a way to maximise crop growth, reduce the over-use of fertiliser and comply with Nitrates Directive (91/676/EEC). It is also necessary to maintain a NMP as part of the Department’s cross compliance requirements.
10. An article published on the Teagasc website in February 2025 sets out the importance of Nutrient Management Plans –“A Nutrient Management Plan (NMP) is a blueprint for managing nutrient inputs and applications across the farm and enables farmers to optimise crop growth while minimising the environmental impacts of nutrient overuse or deficiency. Adjusting fertiliser applications to soil test results and crop nutrient demands ensures that nutrients are applied at the right time and in the right amounts – reducing nutrient loss to water, greenhouse gas emissions, and promoting soil health…..The mandatory requirement for soil reports for arable land to generate a phosphorus allowance, the real-time tracking of organic manure imports and the introduction of the National Fertiliser Register eliminate any margin for error in nutrient application on farms. Farmers who exceed nutrient allowances risk penalties on their farm payments, making an accurate NMP a necessity…..Nutrient management planning is a practical and essential step in ensuring sustainable farming practices, helping farmers boost productivity while minimising their environmental impact. It’s a vital tool for shaping the future of agriculture and protecting the environment.”
11. The Department have identified a number of records relevant to this request including three NMP maps/land parcels and three Fertiliser/NMP Reports for the years 2016, 2019 and 2020. As mentioned, they have refused access to the information in full.
12. When relying on article 8(a)(i) of the AIE Regulations a public authority must show that – a) the information at issue is personal information relating to a natural person, who has not consented to its disclosure; b) the personal information has an element of confidentiality, c) the confidentiality of that personal information is protected by law; and d) the disclosure of the information at issue would adversely affect that confidentiality.
13. The Department has sought to rely on article 8(a)(i) to refuse access to all of the records identified citing that they contain personal information, protected by this provision and, Section 37 of the Freedom of Information Act (2014).
14. That the Department has sought to refuse access to all of the information concerned, regardless of its specific nature– rather than redacting the information which it considers to be “personal information” within the records, is not an appropriate application of this exemption. I remind the Department of the requirements that exemptions provided for within the AIE Regulations should be applied restrictively. I also remind the Department of article 10 (5) which stipulates that nothing in articles 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information. I am cognisant of the length of time since the original request was made and therefore rather than annul the decision on the basis of the blanket refusal, I will consider whether it is more appropriate to direct release of the information, having regard to the provisions of article 8(a)(i) and the public interest balancing test.
15. This Office’s approach to GDPR has been outlined in detail in a number of previous decisions, to include most recently in OCE-161017-J5W7L2 . I consider that the GDPR analysis at paragraphs 47-66 of that decision are applicable here and therefore do not intend to repeat them in detail. In summary, with respect to application in this case:
I. Lawful Bases- I consider that the relevant ‘lawful bases’ for processing the data at issue is appropriately set in article 6(1)(f) of the GDPR regime, in that it is ‘necessary for the purposes of the legitimate interests pursued by the controller or by a third party’.
II. AIE Request for Environmental Information- That the AIE request is a legitimate one under the AIE Regime is not at issue in this case, nor has any party disputed the nature of the information as not being environmental in nature.
III. Personal Information -Having reviewed the records I agree with the Department’s contention that some of the information contained within the records at issue is ‘personal information’, as it includes information with respect to the data subject’s name and address.
IV. Consent-Having consulted with the data subject I confirm that consent to the disclosure of the information has not been given and, that the personal information at issue in this case does not fall under any of the special categories of personal data meriting higher protection.
V. Legitimate Interest- Pursuant to the above considerations, I am satisfied that the requester has a ‘legitimate interest’ in receiving the data pursuant to the request and that its disclosure is necessary to meet that interest.
16. It is necessary therefore to next consider the public interest balancing test, as noted in OCE-161017-J5W7L2 (paragraph 70) although as a matter of principle a public authority must carry out the balancing exercise in Article 6(1)(f) first and again (if needed) under article 10(3) of the AIE Regulations, in practice it is unnecessary for me to go through the exercise twice because in this decision as the analysis is the same.
17. In respect of the public interest in disclosure of the environmental information in this case, I consider that there is an important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive, in particular by contributing to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment, as set out in recital 1 to the AIE Directive, and the rights in Articles 11 and 37 of the Charter of Fundamental Right of the European Union.
18. I also accept that there is a specific interest in the disclosure of information such as a NMP for a farm, as it concerns environmentally conscious farming practices and forms part of the information required for cross compliance requirements, which ensure that to receive payments under the GLAS scheme, farms comply with a range of measures concerning the environment, public health, animal health and welfare and land maintenance. These payments, in essence, link direct financial support to the observance of environmental and other law. As the drafting of and compliance with an NMP forms part of compliance with this scheme, I consider there to be a clear public interest in the visibility of same.
19. As highlighted in the Teagasc article quoted in paragraph 10, an NMP is essential in the context of sustainable farming practices in“shaping the future of agriculture and protecting the environment” , furthermore, as exceeding the nutrient allowance on a farm can lead to penalties in GLAS payments, I consider that transparency and accountability are key features of the NMP process and from these principles public interest naturally arises.
20. To this end, I have carefully considered the appellant’s submission with regards the public interest in the release of the information at issue. For the most part I find the arguments made in this regard to be persuasive in demonstrating the significant public interest in this information:
“Agricultural enterprises have a recognised capacity to pollute the environment. Pig farming in particular has a considerable environmental impact, recognised that intensive pig farming is a category of activity subject to licencing under the Industrial Emissions Directive (IED)…
There is a public interest in the types of information the subject of this appeal being made available so that the public can scrutinise the compliance of non-IED pig farming enterprises with relevant environmental requirements.
…once the public is in receipt of relevant information then there is an opportunity to verify if there is a risk to the environment from ongoing operations. The information sought in this request is environmental compliance information (GLAS and NMP). The GLAS category of information represents a category of information which is increasingly being pursued at EU level. Essentially the EU (and through it the Irish State) is supporting farmers who deliver quality environmental outcomes through good practice. There is a requirement that same be subject to independent verification. The famers concerned are in receipt of public funds, and there is a requirement to ensure that such funds are being properly deployed and that there is compliance with the relevant environmental standards.
The information concerned is environmental compliance information with the farm are required to prepare and submit for the relevant regulatory authorities. There is a considerable public interest in its disclosure. It is not a special category of personal data for the purposes of Article 9 GDPR (per para 53 in Protect East Meath).”
21. In the interests of refusing disclosure of the environmental information, I have more broadly considered the data subjects interest in the protection of his personal data, taking into account the nature of the specific personal data at issue and the data subject’s rights under Articles 7 and 8 of The Charter of Fundamental Rights of the European Union. I have considered the nature of the information in question, which includes the data subject’s name and the address of the farm, I note that the farm itself is a limited company of which the data subject shares the same name, and therefore information relating to the data subject (name/address) is accessible on public databases such as solocheck.ie.
22. I note that the herd number of the farm is included in the records, however as outlined in the decision published in OCE-136207-Y3Q4N3 , article 8(a)(i) applies only to personal information relating to a natural person. As the farm is registered as a company and limited companies are legal persons, but not natural persons, the information related to such companies is not personal information within the meaning of article 8(a)(i). Therefore, the Department should note that article 8(a)(i) cannot be relied on for the purposes of withholding this information in relation to herd numbers and their associated location data that are linked to limited companies. Nevertheless, for completeness here, I draw attention to paragraph 36 of aforementioned decision which states‘a herd number is an administrative device, issued by the Department primarily for the purposes of disease control, but used generally by the Department as an identifier for matters relating to the herd. A herd number is shared with other parties for a range of matters including the sale of animals. For these reasons I do not think there is any inherent risk in the disclosure of herd numbers and their associated locations’. I find that this analysis is relevant here and while it may not always be the case that herd numbers are released upon direction of this Office, notwithstanding that this farm is registered as a limited company, it is my view that no adverse impacts have been identified such to justify the refusal to release.
23. When considering the individual’s interest in the protection of the data subject’s personal data, I have taken into account whether there is likely to be any adverse effect for the individual(s), if their data is released. While the Department have stated that it considers“that the requirement to protect the right of privacy to members of the public outweighs the public interest in releasing the records in question” it has not identified any specific adverse effects likely to arise from the release of the information at issue.
24. In the course of the investigation the data subject (farmer) was contacted with respect to the request and voiced his objection to the information being released. While I acknowledge he does not consent to his data being released in respect of these records, his submission does not provide evidence to suggest that the disclosure of the information at issue would result in any specific adverse impact. The third party stated that it was a small farm and that it is not in breach of any regulations. I might add at this point that there is no suggestion here that this is not the case, nor is it the Commissioner’s role to determine compliance or otherwise with farming or environmental regulations.
25. I have seen no evidence of the likelihood of an adverse effect that would outweigh the significant public interest, as set out above, in the information at issue being disclosed.
26. For the reasons set out above, and weighing those interests in the balance, I conclude that the public interest in releasing the information identified by the Department as being in scope of the request, outweighs the interests served by the refusal.
27. I will note that this decision should not be taken to mean that any request for access to information concerning an individual farmer will be granted. Each request should be considered on its individual facts, and the rights of the individual data subject must be carefully considered in the context of each case.
28. I note the Department has sought to rely on section 37 of the FOI Act as the law which protects the confidentiality of the information here (as required by article 8(a)(i)). As I have already found that the information should be released when applying the GDPR as the law relied on to protect the confidentiality of the information, I do not consider it necessary to consider section 37 of the FOI Act in this regard. I say this because I would be required to apply the same public interest balancing test under AIE regardless of the law relied on to protect the confidentiality of the information – and therefore the outcome would be the same. I have set out my analysis of the public interest balancing test and why the information should be released, starting at paragraph 16 of this decision. The effect of this is that where both s.37 of the FOI Act and the GDPR apply to information held by a public authority relevant to an AIE request, the public authority should consider whether to release or withhold the information by weighing the rights of the data subject against the public interest in the disclosure of the requested environmental information, as I have set out above. I consider that this approach is consistent with a public authority’s range of legal obligations in relation to both personal information and access to environmental information.
29. Article 9(1)(c) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or European law to protect a legitimate economic interest. This provision seeks to transpose Article 4(2)(d) of the AIE Directive, which, in turn, is based on Article 4(4)(d) of the Aarhus Convention.
30. The Minister’s Guidance, in considering article 9(1)(c) of the AIE Regulations, states:“The fact that a person or company asks for information to be treated as confidential does not of itself establish it as such for the purpose of the Regulations, and the public authority must satisfy itself that real and substantial commercial interests are threatened. In addition, the fact that the release of information (for example, in relation to a pollution incident) might damage the reputation of a company is not of itself adequate reason for withholding it.” (paragraph 12.4)
31. When relying on article 9(1)(c), a public authority must show that the information at issue is commercial or industrial in nature; that the commercial or industrial information has an element of confidentiality; that the confidentiality of that commercial or industrial information is provided for in law to protect a legitimate economic interest; and that the economic interest, would be adversely affected by disclosure of the information at issue. As outlined above, the public authority must demonstrate a clear link between disclosure of the information that has actually been withheld and any adverse effect. The adverse effect on its legitimate economic interest must be reasonably foreseeable and not purely hypothetical. A mere assertion of an expectation of harm is not sufficient.
32. The Department did not raise article 9(1)(c) at internal review stage but attempted to invoke it in the submission received by this Office, in contending that the farm was registered as a Ltd company:“Following further consideration article 9(1)(c) would also be applicable as the GLAS contract is in the name of the company XX Ltd. Due to this the records in question not exclusively contain personal information but also contain information relating to the company which in my view cannot be released as it would adversely affect commercial or industrial confidentiality where such confidentiality is provided for in national or community law to protect a legitimate economic interest.”
The Department fail to outline the information necessary to invoke this exemption, set out above, that is; that the information has an element of confidentiality which is provided for in law to protect a legitimate economic interest and that this economic interest would be adversely affected by such a disclosure. The entirety of the Department’s submission cites the provision of the article but does not advance any further particulars with respect to the specific information, legal protection or adverse effect.
33. For completeness, notwithstanding the lack of submission from the Department on the necessary provisions of 9(1)(c), I have reviewed the records at issue with respect to the provisions of this article, which include information regarding the NMP, and fertiliser plans for the farm for three separate years alongside ortho maps of the farm. As previously noted, for this provision to be invoked an economic interest which would be adversely impacted would need to be provided, it is not sufficiently that the information in itself relates to a company, in order to secure protection from this article. As is stands, from my review, there appears to be no clear adverse impact on an economic interest that I could identify which would come from the release of the records at question. The Investigator assigned to the appeal also provided an opportunity to the environmental consultancy agency who assisted in the drafting of three of the records at question to provide any submissions with respect to the release of the information, no information was returned.
34. Accordingly, I find that article 9(1)(c) cannot be invoked to protect the information at issue in this case.
35. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision and direct release of the information.
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.
Gemma Farrell
Senior Investigator
On behalf of the Commissioner for Environmental Information