Decision
Ms. X & The Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-156148-C1C4S8
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-156148-C1C4S8
Published on
Whether the Department is justified in refusing certain information requested by the appellant on the basis of 9(1)(c) of the AIE Regulations
11 February 2026
1. On 3 December 2024, the appellant submitted a request to the Department seeking access to the following information in relation to forest road licence CN87576;
“1. A full copy of the road licence CN87576 dated 02/02/23
2. Map showing the detailed location of the built forest road.
3. Length of the built forest road.
4. Features of the built forest road e.g. bell mouths etc. included in the construction
5. Quantity of all material used in the construction of the forest road.
6. Costs of all works for the construction of the forest road
7. Total State funding requested
8. Total State funding granted
9. All inspection reports / notes and any the records dated after 02/03/23 in relation to CN87576”.
2. On 20 December 2024, the Department issued its decision, and part granted the request providing four records with redactions;
Record 1 CN87576 Approval Letter Forest Roads.
Record 2 First Grant Payment Letter.
Record 3 CN87576 Forest Road Map.
Record 4 CN87576 Invoice.
The department relied on exceptions under articles 8(a)(i) and 9(1)(c).
3. On 20 December 2024, the appellant requested an internal review.
4. On 8 January 2025, the Department issued its internal review decision in which it affirmed the original decision.
5. On 5 February 2025, the appellant appealed to my Office.
6. On 13 May 2025, the Department provided one additional record to the appellant and an updated schedule of documents;
Record 5 CN87576 First Grant Submission Report (application for payment).
7. On 10 June 2025, the Department provided four further records to the appellant with a schedule which related to item 9 of the request;
Record 6 CN87576 Notes Iforis Redacted.
Record 7 CN87576 Preapproval Inspector’s Certification Report 30.03.2021.
Record 8 CN87576 Re-Inspection Report (i).
Record 9 CN87576 Re-Inspection Report (ii).
8. On 10 June 2025, the appellant contacted this Office and stated “I am still awaiting any site survey notes/inspection notes in relation to any site surveys of the completed forest road after 13 August 2023 . If DAFM have not inspected the completed forest road at any time since 13 August 2023, can DAFM please confirm that this is the case”.
9. On 25 July 2025, the Department provided an additional record to the appellant; Record 10 First Instalment Inspector Certification Report 15/08/23. The Department provided the appellant with 10 records and relied on the exceptions detailed below.
| No | Record | Exemption | ||
| 1 | CN87576 Approval Letter Forest Roads | 8(a)(i) | ||
| 2 | CN87576 First Grant Payment Letter | 8(a)(i) | ||
| 3 | CN87576 Forest Road Map | 8(a)(i) | ||
| 4 | CN87576 Invoice | 8(a)(i), 9(1)(c) | ||
| 5 | CN87576 First Grant Submission Report (application for payment) | 8(a)(i), 9(1)(c) | ||
| 6 | CN87576 Notes Iforis Redacted | 8(a)(i) | ||
| 7 | CN87576 Preapproval Inspector’s Certification Report 30.03.2021 | 8(a)(i) | ||
| 8 | CN87576 Re-Inspection Report (i) | 8(a)(i) | ||
| 9 | CN87576 Re-Inspection Report (ii) | 8(a)(i) | ||
| 10 | First Instalment Inspector Certification Report 15/08/23 | 8(a)(i) |
10. On 20 August 2025, this Office contacted the appellant and informed the appellant that the Department had confirmed no inspections occurred of the forestry road, CN87576, after 13 August 2024.
11. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department. 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’).
• The judgments in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), Redmond & Anor v Commissioner for Environmental Information & Anor [2020] IECA 83 (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB) and Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ);
• The judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney) which is referenced in the decisions in Redmond, ESB and RTÉ; and
• The decisions of the Court of Justice of the European Union in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg) and C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig).
12. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
13. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
14. The appellant had stated “all requested information appears to have been provided”, with the provision that the Department confirmed no further inspections occurred of this forest road after 15 August 2023. The Department have confirmed no inspection occurred after this date. Therefore article 7(5) is not within the scope of this appeal.
15. The appellant confirmed she was not seeking any personal information and sought for this Office to determine if the Department had correctly applied article 8(a)(i) and article 9(1)(c). Having reviewed the records at issue the redacted information consists of a name, address, and forest owner’s number. As the appellant had placed personal information outside the scope of her appeal the use of article 8(a)(i) will not be examined.
16. The scope of this appeal is therefore concerned with whether the Department was justified in refusing access to information sought by the appellant under article 9(1)(c) of the AIE regulations in relation to records 4 and 5.
Article 9(1)(c)
17. 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. Articles 9(1)(c) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(1) of the AIE Regulations, provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. I am satisfied that article 10(1) does not apply in this case.
18. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides 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.
19. 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)
20. The redacted information in record 4 consists of the total cost for construction of the road. Record 5 contains details on the unit cost, cost of gravel and stone, culvert cost, total direct costs, management cost, and overall road cost, all of which have been redacted.
Having examined Record 4, which is an invoice and record 5, First Grant Submission Report, I am satisfied that that the information at issue is commercial/industrial in nature.
21. In order to show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interest that the confidentiality is designed to protect. Accordingly, when relying on article 9(1)(c) the appellant must set out the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the economic interest identified. The risk of the economic interest being undermined must be reasonably foreseeable and not purely hypothetical (see by analogy, C-57/16 P ClientEarth v Commission, paragraph 51), A mere assertion of an expectation of harm is not sufficient.
22. The Department consider that article 9(1)(c) applies by reference to section 36(1)(b) of the FOI Act. Section 36(1)(b) provides that a record that contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, shall not be disclosed.
23. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of section 36(1)(b) is that disclosure “could reasonably be expected to result in material loss or gain”. This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker’s expectation is reasonable.
24. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position " of the person in the conduct of their business or profession. The standard of proof to be met here is lower than the "could reasonably be expected " test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice ", the damage that could occur must be specified with a reasonable degree of clarity.
25. The Department submits, “the records in question contain commercially sensitive information, being the fee charged by a contractor to carry out works on the forest road and a breakdown of these costs including unit costs, direct costs, management costs and VAT amounts charged. The release of this information could prejudice the competitive position of that person in the conduct of his or her profession or business ”. Having examined records 4 and 5, I am satisfied the records have an element of confidentiality provided for in law (section 36(1)(b) of the FOI Act) to protect a legitimate economic interest. Accordingly, it is appropriate to also consider the adverse effect of disclosure in accordance with article 9(1)(c).
26. In order to justify refusal the adverse effect on commercial confidentiality must be reasonably foreseeable and not merely hypothetical. The Department confirmed they consulted with the contractor who did not consent to the release of the information. The Department outlined the competitive nature of the market in which the contractor operates noting 492 forest road licences had been approved as of 26 September 2025 and the release of the information in the records could disclose the pricing strategy and margins of the contractor and place the contractor at a competitive disadvantage.
27. The Department submits the release of the pricing information will have a real adverse effect on the contractor as it will provide competitors with an insight “into the pricing strategy and margins of the contractor which could be used in the future to their competitive advantage”. The Department maintain the insight gained by the contractors’ competitors has a real possibility of placing the contractor at a competitive disadvantage. The Department refer to a decision published by the Office of the Information Commissioner (OIC) in relation to OIC-116823-Y1W4F4 , which is available on the website of the Office of the Information Commissioner (OIC), www.oic.ie . The Department submits “that release of information such as the value on invoices could prejudice the competitive position or negotiations of the contractor”.
28. In circumstances where I have considered the submissions of the parties and the content of records 4 and 5, I hold the view the release of records 4 and 5 could reasonably be expected to result in material loss or gain and could prejudice the competitive position of the Contractor and I am satisfied that there is a reasonably foreseeable risk that such a harm would arise. Accordingly, I am satisfied that article 9(1)(c) applies in respect of records 4 and 5. However, that is not the end of the matter, I must proceed with the public interest test under the AIE Regulations in respect of records 4 and 5.
29. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 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.
30. In considering the public interest served by disclosure, it is important to be mindful of the purpose of the AIE regime, as reflected in Recital 1 of the Preamble to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment .” The AIE regime thereby recognises a very strong public interest in openness and transparency in relation to environmental decision-making.
31. The AIE Regime also acknowledges that there may be exceptions to the general rule of disclosure of information, as noted in Recital 16 of the AIE Directive, which provides that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases .” One such case is in respect of commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.
32. The Department have considered the public interest balancing test and have stated “the factors in favour of release of this information are the making available to the public, where practical and allowed under the law, in a transparent manner, information affecting the environment ”. I note that the Department has disclosed the total grant amount awarded, contained in record 2, and this serves the public interest and creates transparency which allows the public to understand the overall cost in relation to this project.
33. The exception provided for in article 9(1)(c) of the AIE Regulations is designed to protect commercial confidentiality where such confidentiality is provided for in national or Community law to protect a legitimate economic interest. In the circumstances of this case, I am conscious that the disclosure of records 4 and 5, which contain details of the contactors pricing and unit costs would prejudice the Contractors competitive position. The public interest in protecting fair competition and safeguarding the contractor’s sensitive information is significant. This adverse impact on legitimate economic interests would outweigh the additional marginal benefit in disclosing the redacted information in records 4 and 5.
34. I have weighed the factors for and against disclosure. In light of the above and having examined records 4 and 5, I am of the view that the interest in refusal outweighs the public interest in disclosure. Accordingly, I find that the Department was justified under article 9(1)(c) in refusing access to records 4 and 5.
35. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Departments decision to refuse access to the redacted portions of records 4 and 5 under article 9(1)(c) of the AIE regulations.
36. 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
On behalf of the Commissioner for Environmental Information