Decision
Right To Know CLG and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-136212-H2G7M9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-136212-H2G7M9
Published on
Whether the Department is justified in refusing access to information requested by the appellant on the grounds of article 8(a)(i) of the AIE Regulations
11 September 2025
1. On 18 January 2023, the appellant made a request to the Department under the AIE Regulations seeking the following information:“herd number and location of derogation farms in the Electoral District of Dripsey, Cork in 2021. Note: based on DAFM released data this request covers 21 farms.”
2. On 9 February 2023, the Department refused the request, citing article 8(a)(i) which provides as follows:“a Public Authority shall not make available environmental information in accordance with Article 7 where disclosure of the information (a) would adversely affect (i) the confidentiality of personal information relating to a natural person who has not consented to disclosure of the information, and where that confidentiality is otherwise protected by law.”
3. The Department cited section 37(1) of the Freedom of Information Act 2014, as the law that protects the confidentiality of the information at issue. It also referred to the public interest balancing test set out in article 10 of the AIE Regulations.
4. The appellant requested an internal review from the Department on 9 February 2023. On 6 March 2023, the Department issued its internal review affirming its original decision. The appellant appealed to this Office on 6 March 2023.
5. I have now completed my 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 Agriculture, Food and the Marine, and the third parties. I have also examined the contents of the records at issue. 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’).
Regulation (EU) ) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the GDPR);
The Charter of Fundamental Rights of the European Union; and
442/14 Bayer CropScience and Stichting De Bijenstichting v College voor de toelating van gewasbeschermingsmiddelen en biociden (Bayer).
6. In accordance with article 12(5) of the AIE Regulations, the role of this Office in this appeal is to review the Department’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
7. The appellant has requested the“herd number and location of derogation farms” in the Electoral District of Dripsey, Cork. The Department has identified information related to this request in the form of 21 herd numbers, each with a corresponding address. The Department is refusing access to this information on the basis that article 8(a)(i) applies. Accordingly, this review deals with whether the Department is justified in refusing access to 21 herd numbers and associated location data of derogation farms in the Dripsey Electoral District.
8. Article 10(1) of the AIE Regulations provides that, notwithstanding articles 8 and 9 (1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment. This provision seeks to transpose article 4(2) of the Directive which similarly provides that certain grounds for refusal may not be applied“where the request relates to information on emissions into the environment”.
9. Therefore, if article 10(1) of the AIE Regulations is found to apply to the appellant’s request, article 8(a)(i) may not be relied on as grounds for refusal of the information. This issue was not directly raised by either party but I consider it to be within my jurisdiction to address, given the intrinsically environmental nature of the subject matter concerned, and given that it impacts on the applicability of article 8(a)(i) of the AIE Regulations, which has been raised by the Department as grounds for refusal. The decision of the Court of Appeal in Redmond also makes it clear that proceedings before me“are inquisitorial rather than adversarial in character” and“the extent of the inquiry is determined by the Commissioner, not by the parties” (see paragraph 51). An investigator from this Office contacted the parties who were provided with an opportunity to make submissions on article 10(1). The third party responses included the position that this request does not concern emissions, under article 10(1) of the AIE Regulations, for reasons including the fact that there is no mention of“emissions” in the nitrates derogation regulations, and the fact that just because a farmer has a derogation does not mean they avail of the upper limit set by the derogation.
10. The appellant’s position is that“the spreading of livestock manure on land is an “emission into the environment” since it concerns the introduction of a substance into land and ultimately into water bodies. This substance has the potential to adversely affect water quality as is clear from the objective of the Nitrates Directive which seeks to limit these types of emissions.” The appellant concludes that the herd number and location of the derogation farms requested relates to those farms where there is increased spreading of livestock manure over and above the limit imposed by the Nitrates Directive – therefore the request relates to emissions.
11. The appellant asserts that“clearly the location of the farms is information “as such” on the emissions as already ruled by the Court of Justice in the Bayer case. In terms of the herd number, it is only through this unique identifier that the public can definitively identify a particular farm location given that in rural the location of a farm in a particular townland may not uniquely identify it. It is only through the herd number that the public can cross reference the location of derogation farms with other information on emissions into the environment to get a full picture as to the effects of farm-level emissions on the environment.”
12. The appellant points to the ECJ judgment in C-442/14Bayer CropScience and Stichting De Bijenstichting v College voor de toelating van gewasbeschermingsmiddelen en biociden (Bayer) , and states the concepts of“emissions into the environment” and“information on emissions into the environment” was explained as information on emissions into the environment“as such” includes information concerning the nature, composition, quantity, date and place of those emissions.
13. The CJEU has assessed the meaning of the phrase “information on emissions into the environment” in its decision in C-442/14Bayer CropScience and Stichting De Bijenstichting v College voor de toelating van gewasbeschermingsmiddelen en biociden (Bayer) . TheBayer case involved a request for information relating to authorisation provided for the placing of plant protection products and biocides on the market. The request was made to the CTB, a Dutch public authority, under Dutch national law transposing the AIE Directive. The facts of this case are somewhat different to those arising in this instance but the decision nonetheless contains some useful general guidance.
14. InBayer , the CJEU found, that the concepts of“emissions into the environment” and“information on emissions into the environment” are not to be interpreted in a restrictive way. This is because the inclusion of those concepts in the Directive is designed to ensure that certain grounds for the refusal of information cannot be invoked against the disclosure of‘information relating to emissions into the environment’. That provision in turn gives effect to the principle (provided for in article 4 and Recital 16 of the Directive) that disclosure must be the general rule of the AIE regime and the grounds for refusal must be interpreted restrictively, and to the general principle of the widest possible access to environmental information held by or for public authorities set out in Recital 1 (see paras 55-58).
15. The CJEU went on to find that, despite reference in the Aarhus Guide to the definition of“emissions” contained in the Industrial Emissions Directive, the concept of“emissions” in the AIE Directive was a wider one and was not limited to emissions emanating from industrial installations. It noted that such a restriction would be contrary to the express wording of article 4(4)(d) of the Aarhus Convention which provides that although information may be refused to protect the confidentiality of commercial and industrial information subject to certain conditions, this shall not apply with regard to “information on emissions which is relevant for the protection of the environment”. The CJEU pointed out that“information concerning emissions emanating from sources other than industrial installations…are just as relevant to environmental protection as information relating to emissions of industrial origin” (para 72).
16. However, while the concept of“information on emissions into the environment” is to be interpreted broadly, it does not cover all information that is connected to emissions in any way. The judgment states that it must be“interpreted as covering not only information on emissions as such, namely information concerning the nature, composition, quantity, date and place of those emissions but also data concerning the medium to long-term consequences of those emissions on the environment.” (para 87).
17. With that in mind, I return to the starting point of my analysis, that is the request itself. In this case, the appellant has requested herd number and location data of derogation farms in the Dripsey electoral area. The Nitrates Directive allows for the granting of derogations, on the proviso that the derogation does not undermine the objective of that Directive, which is to reduce and prevent water pollution as a result of agriculture. Under normal circumstances, a landowner is not allowed to apply more than 170 kilograms of organic nitrogen per hectare per year on their land, however farmers who operate under a derogation licence can lawfully spread up to 250 kilograms of organic nitrogen per hectare per year on their land. I consider the granting of derogation licences could be linked to the issue of emissions when the aim of the Directive as a whole is to reduce and prevent water pollution as a result of nitrates from agriculture. However, the information requested by the appellant in this case is specifically the herd numbers and address of the derogation farms, therefore none of this data contains information in relation to actual emissions into the environment.
18. Article 10(1) of the AIE Regulations states that where the request‘relates to information on emissions into the environment’, certain exceptions do not apply. An over-broad interpretation of the term‘relates to’ could result in the override capturing any information that can somehow be linked to the subject of emissions.
19. In another decision of the CJEU, in C-673/13 PEuropean Commission v Stichting Greenpeace Nederland and Pesticide Action Network Europe (PAN Europe), the court considered the appeal of a decision from the EU’s General Court concerning access to documents held by one of the EU’s own institutions. The EU has separate regulations controlling access to such information, but where the information is environmental, the principles of the Aarhus Convention are applied. This includes an override to the use of certain exceptions where the information relates to emissions. The General Court had found that the requested information only had to be linked ‘in a sufficiently direct manner’ to emissions for the override to apply. The CJEU rejected that approach, finding that the override applied to:“… information which ‘relates to emissions into the environment’, that is to say information which concerns or relates to such emissions and not information with a direct or indirect link to emissions into the environment” . (paragraph 78)
20. As noted above, the information requested in this case is for the herd numbers and location of derogation farms in the Dripsey electoral district. The appellant has not sought detail pertaining to for example the actual amount of organic nitrogen per hectare per year on these farms, or details of compliance with the derogation limitations.
21. On the basis of the foregoing, I am satisfied that the request in this case is not one which relates to information on emissions into the environment such that article 10(1) of the AIE Regulations applies. I will therefore proceed to consider the application of article 8(a)(i) and whether this article can be said to provide grounds for refusal of the information at issue in this appeal.
22. The information sought by the appellant is the herd number and address of the derogation farms in the Dripsey electoral district. The Department contends that the information sought is personal information, and that the request should be refused based on article 8(a)(i) of the AIE Regulations. The two relevant records identified by the Department contain 21 herd numbers each with each herd number having associated address.
23. I consider it appropriate to set out the approach to personal data under the AIE Regime with reference to the GDPR. Article 8(a)(i) seeks to transpose Article 4(2)(f) of the AIE Directive, which enables Member States to provide for refusal of a request where disclosure would “adversely affect … the confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for by national or Community law” (my emphasis).
24. The final paragraph of Article 4(2) states, referring to the predecessor to the GDPR:“Within this framework, and for the purposes of the application of subparagraph (f), Member States shall ensure that the requirements of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data are complied with.”
25. In light of this, I consider that the reference to “personal information” in article 8(a)(i) of the AIE Regulations to be consistent with the meaning of“personal data” under the GDPR, a concept with which every public authority is now very familiar. It is clear from this final paragraph of Article 4(2) of the AIE Directive that the AIE regime is intended to interact harmoniously with the European data protection regime. In the same vein, Article 86 of the GDPR (read with recital 154) permits the disclosure of personal data in accordance with information access regimes under EU or national law, where those regimes reconcile the right of access to information with the right to protection of personal data. This again indicates that the GDPR is intended to interact harmoniously with national and European regimes offering public access to information.
26. In Ireland, Article 86 of the GDPR is implemented by section 44(2) of the Data Protection Act 2018, which provides:“For the purposes of Article 86, personal data contained in environmental information may be disclosed where the information is made available under and in accordance with the [AIE] Regulations pursuant to a request within the meaning of those Regulations.” On one view, this could be considered to be a standalone ‘gateway’ for the disclosure of personal data under the GDPR, permitting disclosure of all personal data contained in environmental information pursuant to an AIE request. However, the CJEU has repeatedly confirmed that the legal bases for processing in Article 6 of the GDPR are exhaustive list of the cases in which processing of personal data can be regarded as lawful (Case C-252/21 Meta Platforms at paragraph 90; Case C-26/22 Case C26/22 SHUFA Holding at paragraph 73).
27. Since its enactment, the principal law relied on to protect the confidentiality of personal data is the GDPR. The GDPR is underpinned by the fundamental rights to privacy and the protection of personal data in the Charter. One of the stated objectives of the GDPR is to secure the“protection of natural persons with regard to the processing of personal data” (Article 1(1)), with one of the principles of processing being integrity and confidentiality (article 5(1)(f). As noted above, the CJEU has repeatedly confirmed that the legal bases of processing in Article 6 of the GDPR are an exhaustive list of the cases in which processing of personal data can be regarded as lawful (Case C-252/21 Meta Platforms at paragraph 90; Case C-26/22 SHUFA Holding at paragraph 73). Disclosure of personal data in a manner which is not lawful, within the meaning of Article 6, is subject to sanction, including through the corrective powers of the supervisory authorities, in Ireland the Data Protection Commission. It is difficult to see how such provisions can be described as merely permissive and not protective. The protection of confidentiality under the GDPR is not absolute, but absolute protection is not required for the purpose of article 8(a)(i) of the AIE Regulations. I note the analysis of Hyland J in this regard (albeit relating to a different exception) in Commissioner for Environmental Information v Coillte Teoranta and others [2023] IEHC 227 at paragraphs 78-84.
28. It follows that, in order to determine whether the confidentiality of personal data is protected by the GDPR, one must consider whether there is a lawful basis under Article 6(1) of the GDPR for disclosure. If there is a lawful basis for disclosure, the personal data may lawfully be disclosed and the confidentiality of the personal data is not protected by the GDPR. Conversely, if there is no lawful basis for disclosure, the personal data may not be disclosed and the confidentiality of the personal data is protected by the GDPR.
29. There are six lawful bases for processing personal data set out in Article 6 of the GDPR. It appears that the most relevant basis to consider is Article 6(1)(f),‘necessary for the purposes of the legitimate interests pursued by the controller or by a third party.”
30. In Case C180/21 Inspektor v Inspektorata kam Visshia sadeben savet, the CJEU found that processing by public authorities which is necessary for the performance of a task in the public interest comes within the scope of Article 6(1)(e) and cannot come within the scope of Article 6(1)(f), as those bases are mutually exclusive (paragraph 85). The Court found that the functions of bringing prosecutions and representing the State in an action for damages were public in nature and were ‘tasks’ of the Public Prosecutor’s Office. Accordingly, the application of Article 6(1)(f) was excluded in respect of processing for that purpose (paragraphs 91-93). This case indicates that one must consider whether the purpose of the processing is the performance of a task in the public interest or whether the purpose is a different interest of a private nature (see paragraph 86). I note the Opinion of Advocate General Campos Sánches-Bordona, where he states that Article 6(1)(f) only applies“to conflicts between (private) parties whose interests are not public in nature” (paragraph 96 of the Opinion). This passage would suggest that a public authority can never rely on Article 6(1)(f). However, this aspect of the Opinion does not appear to have been adopted by the Court, with the Court instead making a distinction between the interests of State authorities that are public in nature and those that are private in nature. For example, the Court made a contrast between the case at issue and a case in which the State is acting in defence of private interests (paragraph 92 of the Judgment).
31. In light of this case, I consider that the question for me is whether a public authority releasing information pursuant to an AIE request is doing so for the purposes of the performance of its tasks or for some other purpose. The term ‘task’ is not defined in the GDPR, but the use of that term in the CJEU’s recent case law gives some illustration as to its meaning. For example, the ‘task’ in Case C-180/21 involved bringing prosecutions and representing the State in an action against it for damages. In Case C-667/21 Krankenversicherung Nordrhein, the Court referred to the ‘statutory task’ of the medical service for health insurance funds. In Case C-439/19, the Court referred to the ‘task’ of the Latvian Road Safety Directorate of improving road safety. In each of these examples, the ‘task’ of the body appears to refer to the functions that the particular body carries out, as opposed to the more general functions and duties applicable to all public bodies. When acting on AIE requests, public authorities are, of course, acting in accordance with their statutory duties under the AIE regime. Such duties apply generally to all public authorities. However, with the possible exception of my Office, I cannot identify any public authority whose ‘task’ involves the release of information pursuant to AIE requests. Indeed, the release of information pursuant to an AIE request may conflict with the performance of the ‘tasks’ of the public authority. For example, in a case where the effective performance of a public authority’s tasks requires that its proceedings remain confidential, a public authority may consider that release of information pursuant to an AIE request is positively inconsistent with the performance of its‘tasks’. By contrast, the release of environmental information pursuant to an AIE request is very much in the interest of the person requesting the information. The duty of public authorities to release information facilitates the right of access of such a requester, which is conferred by the AIE regime. Taking this into account, it is my view that the release of information pursuant to an AIE request is not for the purposes of the performance of the tasks of the public body, but is for the purposes of the legitimate interests pursued by a third party, the requester. Accordingly, I do not consider that disclosure pursuant to an AIE request involves the‘performance of the tasks’ of the public authority and the exclusion in the final subparagraph of Article 6(1) does not apply.
32. That being so, there are‘three cumulative conditions’ in order for processing to be lawful in accordance with Article 6(1)(f): “… first, the pursuit of a legitimate interest by the data controller or by a third party; second, the need to process personal data for the purposes of the legitimate interests pursued; and third, that the interests or freedoms and fundamental rights of the person concerned by the data protection do not take precedence” (Case C597/19 M.I.C.M., at paragraph 106). For convenience, this is known as the ‘legitimate interest test”.
33. In relation to the first condition, the CJEU has confirmed that a wide range of interests is, in principle, capable of being regarded as legitimate (see Case C-26/22 SHUFA Holding at paragraph 76). For example, internet users may have a legitimate interest in having access to internet search engine results containing personal data ( Case C-131/12 Google Spain and Google , at paragraph 81); a person has a legitimate interest in obtaining the personal information of a person who damaged their property in order to sue (Case C-13/16 Rigas Satiksme at paragraph 29); and a video surveillance system installed to protect the property, health and life of co-owners of a building is likely to be a legitimate interest (Case C-708/18 Asociatia de Proprietari bloc M5A-ScaraA at paragraph 42). The purpose of the AIE regime is to promote increased public access to environmental information and more effective participation by the public in environmental decision-making, with the aim of making better decisions and applying them more effectively and, ultimately, promoting a better environment (see recitals 1 and 2 of the AIE Directive and Case C-470/19 Friends of the Irish Environment at paragraph 36). The AIE Directive expresses the provision of environmental information in response to an AIE request as a“right of access”, which is conferred on any natural or legal person who makes an application for the information.Taking this into account, and considering the wide range of interests confirmed as legitimate by the CJEU, I consider that a person who requests environmental information from a public authority has a legitimate interest in receiving the environmental information in question (subject to any other exceptions to the right of access that may apply). Accordingly, once a person has made a valid request for environmental information, the first condition of the legitimate interest test is met.
34. Where the environmental information in question is or includes personal data, the only way in which the legitimate interest in receiving the environmental information can be met is by providing access to the personal data in question. Accordingly, the second condition of the legitimate interest test is met.
35. As a result, in practice, it is the third condition of the legitimate interest test on which public authorities must focus most of their attention. The third condition requires‘the balancing of the opposing rights and interests at issue’, depending on the specific circumstances of the particular case (see Case C-597/19 M.I.C.M., at paragraph 111).
36. In this context, the opposing interests will be, on the one hand, the right of the data subject to respect for privacy and protection of personal data and, on the other hand, the public interest in the disclosure of the environmental information at issue. This balancing exercise is almost identical to the balancing exercise that is required under Article 4(2) of the AIE Directive and article 10(3) of the AIE Regulations, where personal data is concerned. This means that, 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 a public authority to go through the exercise twice because the analysis is the same. In my view this means that, in practice, public authorities may deal with AIE requests involving personal data in a relatively straightforward manner, consistent with both the AIE regime and the GDPR.
37. To summarise - once a public authority is satisfied of the following matters, the public authority may be satisfied that the requester has a‘legitimate interest’ in receiving the personal data pursuant to that request and that its disclosure is‘necessary’ to meet that interest:
- that an AIE request has been made,
- that the requested information is environmental information,
- that the environmental information is or includes personal data, and - that the data subject has not consented to the disclosure of the personal data.
38. The public authority must then weigh the rights of the data subject against the public interest in the disclosure of the environmental information. In weighing that balance, the public authority should consider the specific interests at issue. namely:
- The individual’s interest in the protection of their 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, as well as any views expressed by the specific data subject regarding disclosure (if, in the circumstances, it is appropriate to seek the data subject’s views); and
- The public interest in disclosure of the environmental information, taking into account the public interest in the information at issue, as recognised by recital 1 of the AIE Directive and the rights in Articles 11 and 37 of the Charter, as well as any specific information that may have been volunteered by the requester (see Case C- 619/19 Land BadenWürttemberg , paragraphs 59-61).
39. As with any other exception to release under the AIE regime, if the public authority concludes that the balance falls against release of the personal data, it should go on to consider whether the personal data may be separated from the other environmental information at issue, for example by means of redaction (see Article 4(4) of the AIE Directive and article 10(5) of the AIE Regulations.
40. It is common ground in this case that the appellant made a valid request under the AIE Regulations, and I consider the information at issue to be environmental information in line with article 3(1) of the AIE Regulations. The next question to consider is whether the information at issue, herd numbers and locations associated with these herd numbers, is personal data.
41. The herd number is an administrative device, linked to an individual named applicant (herd owner or herd keeper), therefore in such cases herd numbers can be considered personal data. Seven of the 21 herd numbers provided by the Department appear to be connected to private limited companies (rather than individuals).
42. Article 8(a)(i) applies only to personal information relating to a natural person. As these limited companies are legal persons, but not natural persons, I am not satisfied that the information related to those companies is personal information within the meaning of article 8(a)(i). Therefore, article 8(a)(i) cannot be relied on for the purposes of withholding this information in relation to these 7 herd numbers and their associated addresses.
43. The remaining herd numbers relate to derogation licence applications obtained by or applied for by individuals, therefore I am satisfied that the remaining herd numbers and associated addresses are considered personal data. The addresses are clearly information related to an identifiable natural person.
44. Regarding the issue of consent, the Department has confirmed that it has not consulted with the derogation applicants, who are identifiable by their address and herd number, regarding this information request. Our investigator consulted the data subjects, who did not give consent to their personal information being released. Therefore, I do not think the data subjects can be said to have consented to their information being released.
45. Having determined the above matters, I am satisfied that the requester has a‘legitimate interest’ in receiving the personal data at issue pursuant to an AIE request and that its disclosure is‘necessary’ to meet that interest. I must go on to weigh the rights of the data subjects against the public interest in the disclosure of the environmental information. In respect of the individuals’ interests in the protection of their personal data in this case, I note the personal information in question does not fall under any of the special categories of personal data meriting higher protection (see Article 9, GDPR).
46. As I have set out above, 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.
47. In the interests of refusing disclosure of the environmental information (the herd numbers and address details of the derogation farms), 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. When considering the individual’s interest in the protection of his 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.
48. In the interests of refusing disclosure of the environmental information (the herd numbers and address details of the derogation farms), 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. When considering the individual’s interest in the protection of his 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.
49. The Department considered the public interest balancing test in its original and internal review decisions, concluding in both cases that the right to privacy of the persons involved and the right to due process outweighed any public interest in release of the information sought.
50. In its submissions to this Office, the Department stated:“DAFM customers have both a legal right under GDPR and an expectation that the Government Department will treat details provided as confidential. DAFM does not release data on individual customers to third parties as to do so may constitute a data breach. In this instance, the 21 farmers have applied for a Nitrates Derogation. However, to confirm that or release further information that may identify some or all of those farmers, either alone or in conjunction with other data that may be available, would directly inform third parties that the farmer’s stocking rate was subject to the 250 kgs of Nitrogen per hectare stocking rate as set out in the Nitrates Regulations for Derogation applicants. It would also confirm details in relation to the farmers interactions with and applications (or not) to DAFM, who are obliged as a public entity to protect the confidentiality of our clients. Information is only released to third parties where there is a clear legal basis under which to so or alternatively with the consent of the data subject. As, in his case, neither legal basis nor consent exist, to release any information to a third party would constitute a data breach.”
51. As part of this review, this Office notified the third parties related to this appeal and invited them to make submissions or submit any observations of the request. The parties responded objecting to the release of the information sought on the basis that it was confidential personal information. A number of further concerns were cited, including that a herd number is tantamount to an individual’s PPS number. Other adverse effects cited included that release of the information could result in the farms at issue being more likely to be victims of theft - on the basis that derogation farmers may have more expensive equipment on site. A third party farmer wrote to this Office stating that he did not want his address and herd number to be released due to the fact that“animal rights activists have invaded farms and tried to take animals from the farms, this could lead to violent confrontation and injury being visited on my family and I.”
52. I have carefully considered these concerns, but am not persuaded of the likelihood of an adverse effect if the requested information is disclosed. I have considered the use and function of a herd number generally. A herd number is an administrative device, issued by the Department of Agriculture 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.
53. Similarly, I do not consider it likely that these farmers’ risk of theft of their goods or machinery would increase as a result of their derogation licence status being disclosed
– I have seen no evidence that this would be the case. Finally, I do not consider that the release of this information is likely to cause animal activists to target these farmers who have lawfully applied for and been granted a nitrates derogation which is provided for in EU and national law. In coming to this conclusion I am reminded that under the Nitrates Directive in normal circumstances farmers are subject to a limit of 170 kilograms of organic nitrogen per hectare per year on their land. Farmers who operate under a derogation licence can lawfully spread up to 250 kilograms of organic nitrogen per hectare per year on their land. But the granting of such a derogation is on the condition that strict requirements are adhered to such as an obligation to use low emission slurry spreading and demonstrating sufficient capacity for slurry storage. I therefore am not persuaded that a farm is any more at risk of being targeted by an animal rights group for the fact that it holds a derogation licence, than any other farm. My understanding is that the European Commission grants a derogation licence to the Irish government, and in turn Irish farmers apply annually to the Department for a derogation licence for their farms.
54. In light of the above, while the release of the personal data in question would have some impact on the data subjects’ right to privacy and protection of personal data, such impact would not be significant.
55. In respect of the public interest in disclosure of the environmental information, 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.
56. I accept that there is a general public interest in transparency around the nitrates derogation licences issued by the Department. In coming to this conclusion I have considered in detail the objective of the Nitrates Directive is to protect water quality from agricultural pollution and to promote the use of good farming practices. As I have already set out above, the nitrates derogation is a licence to spread more organic nitrogen per hectare on land than is routinely permitted under the Nitrates Directive. According to the text of the Directive, organic Nitrogen is livestock manure applied to the land each year, including by the animals themselves.
57. As a member state, Ireland applies to Europe for this every 4 years, based on the argument that Ireland has a long growing season, our fields can absorb it, and that it will not put water quality at risk. As I have set out above, once granted by the European Commission to the Irish government, Irish farmers in turn apply annually to the Department of Agriculture, Food and the Marine for a derogation licence for their farms.
58. While the Nitrates Directive allows for the granting of derogations, it does so on the proviso that the derogation does not undermine the objective of that Directive, which is to reduce and prevent water pollution as a result of agriculture. Under normal circumstances, a landowner is not allowed to apply more than 170 kilograms of organic nitrogen per hectare per year on their land, however farmers who operate under a derogation licence can lawfully spread up to 250 kilograms of organic nitrogen per hectare per year on your land. Landowners farming under a derogation are subject to stricter regulation, such as an obligation to use low emission slurry spreading and demonstrating sufficient capacity for slurry storage.
59. In relation to the particular information at issue, the appellant has stated that both the herd number and location are required for the public to get a full picture as to the effects of farm-level emissions on the environment. The AIE Regulations are motive blind and there is no requirement for a requester to state an interest or a motive for why he is requesting the information. However in cases where an applicant provides context as to why they are seeking certain information, it can be helpful to aid understanding of the wider public interest in relation to certain information. The appellant in this case has stated that it requires this information to map agri-environmental data in relation to nitrates and derogation/non-derogation farming. It states that the Department/ EPA released a derogation farm map in an A4 pdf format, which does not allow for analysis.
60. As I have set out above, there are strict conditions which must be fulfilled in order for derogation licence to be granted to a farm by the Department. I accept the location where a derogation licence is granted is important in terms of environmental protection. The appellant asserts that it is only through the herd number that the public can cross reference the location of derogation farms with other information on emissions into the environment to get a full picture as to the effects of farm-level emissions on the environment. I accept the public interest argument put forward here. I say this bearing in mind the topic of nitrates derogations has been the topic of debate in recent years. In August 2024, the EPA published its Water Quality Monitoring Report on nitrogen and phosphorous concentrations in Irish Waters in 2023. The EPA’s summary of the report found the following:
“The latest EPA Water Quality in Ireland report (EPA, 2022), covering the period 2016 - 2021, found that 54% of our surface waters were in satisfactory ecological health, and that overall water quality was in decline. The picture for our estuaries is even more stark with only 36% in satisfactory ecological condition. The assessment indicated that the main problem impacting our waters was the presence of too much phosphorus and nitrogen, leading to increased eutrophication in these waters. The latest EPA Water Quality Indicators report (EPA, 2024) highlights that there was no significant change in the nutrient concentrations or in the biological quality of our rivers and lakes in 2023, and that water quality is not improving. The data in these EPA reports shows that nitrate concentrations remain too high in rivers, groundwater, and estuaries in the south east, south west and midlands & eastern regions.
This report, which is based on data from the monitoring stations that are representative of the impact of agriculture on water quality, also shows that nutrient concentrations remain too high in many parts of the country.
Nationally, over the 12 months from 2022 to 2023, there has been an increase in groundwater nitrate concentrations, with little change in riverine nitrate concentrations.
In 2023, six percent of groundwater monitoring sites exceeded the regulatory groundwater threshold value of 37.5 mg/l NO3. Twenty two percent of groundwater monitoring sites have mean nitrate concentrations greater than 25 mg/l NO3. Mean concentrations above 25 mg/l NO3 in groundwater are of concern because they are a significant deviation from natural conditions and are approaching the threshold where drinking water quality may be compromised.
Higher concentrations of nitrate in groundwater may also impact the ecological health of rivers and associated marine waters in those catchments. In 2023, 43% of river monitoring stations had concentrations higher than 8 mg/l NO3, which may be having a water quality impact on the ecological health of these rivers and the ecological health in the downstream marine waters.
In 2023, 22% of river monitoring stations have phosphorus concentrations which are greater than the good status Environmental Quality Standard (0.035 mg/l P). The highest river phosphorus concentrations are in areas with poorly draining soils, and the elevated phosphorus concentrations are impacting the ecological health of these rivers and are contributing to nutrient enrichment in the downstream estuaries.”
61. This report was prepared to specifically monitor the assessment of the Nitrates Derogation. I consider that it is clear from the findings of the EPA that the presence of nitrates in our waters is a significant issue and is causing a deterioration of water quality in Ireland. Due to this, I consider that there is a strong public interest in the release of information relating to the nitrates derogation generally, and in the specific information sought in particular.
62. For the reasons set out above, and weighing those interests in the balance, I conclude that the public interest in releasing the herd number and location data of derogation farms in the Dripsey electoral area, outweighs the interests served by the refusal.
63. While I have set out above at 42 and 43 that I do not consider that the herd numbers linked to limited companies are personal information, I am satisfied that if it was the case that this was considered to be personal information, the same conclusion would apply to those herd numbers.
64. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby annul the decision of the Department of Agriculture Food and Marine’s decision and direct that the requested information be released to the appellant.
65. 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.
Ger Deering
Commissioner for Environmental Information