Decision
Mr. X and Department of Agriculture
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-148289-F5G6P9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-148289-F5G6P9
Published on
Whether the Department was justified in refusing access to information coming within the scope of the appellant’s request under article 7(5) and article 9(1)(c) of the AIE Regulations.
24 April 2026
1. On 11 October 2022, the appellant requested as follows:
“Do the Pesticide Registration & Control Divisions (PRCD) hold records of all imports into Ireland of pesticides/biocides treatments for the eradication of sea lice on farmed fish.
If the answer to the above question is yes,
Please supply the names of each pesticide, the quantities imported and who they were imported to in Ireland from the 1st January 2018 to the present day.
If your department does not hold these records, can you please inform me who does.”
2. On 14 November 2022, the appellant sought an internal review on the basis that no response had been received to his original request. No reply was received.
3. The appellant brought his first appeal to this Office on 16 January 2023 on the basis of a deemed refusal by the Department.
4. On 16 January 2023, this Office wrote to the Department requesting that it provide the appellant with a letter specifying its position in relation to the appellant’s internal review request and outlining reasons for this position, as soon as possible but no later than 31 January 2023.
5. The Department issued its position to the appellant on 20 January 2023, wherein it stated as follows:
“Whilst we do keep records of what products are imported under Special Import Licence – we do not keep any records of VMPs (veterinary medicinal products) that are imported naturally under EU authorisation. Pesticides are NOT VMPs so for the record we do not hold any information on any imported Pesticide data.
If Mr. [X] clarifies his query further and has any specific product in mind, then we will of course look to our records […]”
6. The appellant brought his second appeal to this Office on 24 January 2023, on the basis that he was not satisfied with the response from the Department.
7. On 21 December 2023, this Office issued its decision, wherein it directed the Department to carry out a fresh internal review and to comply with its obligations under article 7 of the AIE Regulations.
8. The appellant sought an internal review from the Department on 23 February 2024 on the basis of the following:
“While you did supply me with information on one pesticide (Slice), there are a number of other pesticides/biocides that are licensed for use on Irish salmon farms, ie. Deltamethrin (Alpha Max), Hydrogen Peroxide (Paramove), Cypermethrin (Excis) and Teflubenzuron (Ektobann) which I did not receive any information on. I asked for information on the import of pesticides/biocides into Ireland from 1st January 2018 to the present day but was only given information on one pesticide/biocide from the11/2/2021 to 9/9/2023. You have used the commercial/industrial confidentiality excuse to refuse to supply me with all the AIE information I requested, I believe that because IFA Aquaculture, DAFM, BIM and Marine Institute are promoting Irish farmed salmon as organic, sustainable and environmentally friendly(which it is not) that the general public / consumers have a right to know, not only what they are eating but what toxic chemicals are being released into the marine environment by unscrupulous people that want to line their pockets at the expense of the marine environment. Which is more important, the health and safety of consumers and the marine environment or the profits of salmon farmers?
9. The Department delivered its internal review decision on 25 March 2024, wherein it varied its original decision. In particular, it stated that:
i) “The information original provided contained an error in the quantity. This is amended in Table 1 below.
ii) Some records were omitted. These are provided in Table 2 below.”
The Department affirmed that it relied on article 9(1)(c) to withhold certain information, namely“the names of importers” and stated that it had considered the public interest balancing test required under article 10 of the AIE Regulations.
10. In its internal review decision, the Department set out two Tables, namely Table 1 and Table 2, details of which are outlined below:
Table 1:
The Department submits how this Table provides an overview of“the details of the product “slice” imported from the UK under Special Import Licences from 2021-2023”.
It said there are“no records for Slice imported from the UK prior to these dates as the UK was still part of the EU and therefore did not require a licence to be imported”. It said that its original decision stated that the“total quantity of Slice imported from the UK in 2021 was 190.45 tonnes” . However, the Department acknowledged that this was an error and stated that“this quantity was actually the amount of medicated feed that was imported and not the quantity of Slice” . The Department confirmed that there is“approximately 5kg of Slice per tonne of medicated feed (depending on the prescription, weight and feeding rate of the fish)” and that the amended Table 1 accounted for these changes.
This Table is divided into 5 columns titled –
(a)date licence issued,
(b)product,
(c) imported from,
(d) quantity of medicated feed (tonnes) and
(e) quantity of Slice Contained in the Feed (kgs)
This Table contains data for the years 2021, 2022 and 2023.
Table 2:
The Department state that this Table contains“records of imports omitted from original response dated 20 February 2024” .
It is divided into 4 columns titled –
(a) date licence issued,
(b) product*
(c) imported from and
(d) quantity.
11. Finally, in its internal review, the Department provides the following clarification with respect to the imports of veterinary medicinal products:
“- [I]f a product is authorised in Ireland under a national authorisation, it does not require a licence for import
- if a product is authorised in another EU Member State (ie nationally authorised in that MS or EEA country) it will require an import licence as at Table 2 above
– if a product is authorised centrally in the EU, it does not require an import licence”
12. The appellant brought his third appeal to this Office on 12 April 2024. In his preliminary submission he stated the following:
“I am making this appeal as the Department of Agriculture, Food and the Marine have not supplied me with all the information I requested in relation to pesticides imported into Ireland for use to kill sea lice infestations on Irish salmon farms.
While the Department has supplied me with some details of two pesticides imported into Ireland from the UK and Norway, they did not supply me with all the information I requested, for example,
(1) I was not supplied with information of pesticides, including Slice that were imported into Ireland from the EU as according to the documents supplied, no import licence is required for these pesticides which presumably are shipped straight to the salmon farmers or their vets. In my previous appeal to your office, I furnished documents to show that the Department has the authority to acquire/ seize documents of the use, amounts and types of pesticides/biocides from third parties, namely the salmon farmers, but the Department failed to ask the salmon farmers for the records of their pesticide imports. The Department cannot use the excuse that it would be a major task to ask the salmon farm companies to supply them with their records as there are only a small number of salmon farm companies operating in Ireland, with one company, MOWI, operating 80% of salmon farms in Irish waters.
I also presume that by mentioning in the supplied documents, that imports into Ireland do not require an import licence, the Department is implying they have no records of same and this lets the Department off the hook for not supplying me with the complete list of pesticides imported into Ireland, but it doesn't, because they are breaking the rules in relation to Statutory Instrument No.466 of 2008 European Communities (Control of Dangerous Substances in Aquaculture) Regulations 2008 .
(2) The Department has also refused to supply me with information on which salmon farm companies imported the pesticides/biocides, citing the commercial or industrial confidentiality clause in refusing to supply me the information I requested in my original AIE request. I believe the public/consumers have a right to this information and I ask, which is more important, the health and safety of the general public, consumers and the marine environment or the profits of the salmon farming companies. Also the confidentiality clause can have an unfortunate side effect for salmon farmers, if there are any, who do not use pesticides to kill sea lice as they will be tarred with the same brush as the salmon farmers that do.”
13. 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 Office of Public Works. I have also examined the contents of the records at issue. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
14. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
15. 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.
16. Based on the appellant’s preliminary submission to this Office, he has two main issues with the internal review furnished to him by the Department. Firstly, the appellant contends that not all the information relevant to his request has been identified by the Department under article 7(5) of the Regulations. Next, the appellant submits that of the records the Department has identified as being relevant to his request, it has incorrectly relied on article 9(1)(c) of the AIE Regulations to withhold some of the information relevant to his request – specifically“who (the pesticides) were imported to” and to providethe names of respective importers to him.
17. Accordingly, the scope of this review concerns whether the Department has identified all information held by it as being relevant to the appellant’s request under article 7(5) of the AIE Regulations. And secondly, whether the Department was justified in its refusal of certain information, namely‘the names of importers’ , which is relevant to the appellant’s request under article 9(1)(c) of the AIE Regulations.
18. The Department stated in correspondence to this Office “The Department maintains its position regarding the refusal of documents that don’t exist. While article 7(5) was not specifically cited in the refusal of documents, DAFM does rely on its use.Searches were undertaken in the relevant Divisions namely Pesticides Control Division and One Health, Veterinary Medicines and AMR division””
19. Article 7(5) of the AIE Regulations is the relevant provision to consider, where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned. It provides as follows:
“Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it”.
20. This Office’s approach to dealing with this type of case is to assess whether adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied. What will be considered reasonable will vary from case to case but as a general guide, I set out below the type of information that my Office would generally expect to be set out in a decision where a public authority is relying on article 7(5) of the Regulations;
I. an outline of exactly which areas/units etc. of the organisation were searched for the information.
II. an explanation of how searches were carried out (i.e. manually, by computer, by name, by key words). Keywords should be recorded and provided in the decision as appropriate.
III. details of the individuals consulted in connection with the search.
IV. a description of the searches carried out to cover the possibility of misfiled/misplaced records.
V. details of guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of information requested in this case.
VI. the basis on which the public authority has concluded that it does not hold any information within the scope of the appellant’s request and that no such information is held by any other person or body on its behalf.
21. Article 7(5) of the AIE regulations allows public authority to refuse a request if it does not hold the requested information. In order for a public authority to successfully rely on this provision, it must, among other things, provide evidence that it carried out adequate searches for the environmental information requested.
22. In this case, the appellant contends that the Department has the authority“to acquire and seize documents, which contain details of the use, amounts and types of pesticides/biocides from third parties, namely the salmon farmers” but it has failed to invoke its powers in response to his request.
23. In response to the appellant’s submission, the Department confirms as follows:
“[It] held back records relating to the following products as follows:
• Alpha Max {containing deltamethrin)
• Paramove {containing hydrogen peroxide)
• Excis (containing cypermethrin)
• Ektobann {containing teflubenzuron)
[…] as there are no import licences for the products listed above, as they are either authorised in Ireland or centrally in the EU and therefore no import licence is required, or for those requiring an import licence, no application has been made for their import […]”
24. With respect to its reliance on article 7(5), the Department submits:
“[It] maintains its position regarding the refusal of documents that don’t exist […].
Searches were undertaken in the relevant Divisions, namely Pesticides Control Division and One Health, Veterinary Medicines & AMR Division (formerly ERAD/Veterinary Medicines).”
25. Having carefully considered the above, I find that the Department has failed to set out in sufficient detail the steps it took to identify and locate relevant environmental information. There is insufficient evidence presented in the Department’s submissions of what searches were undertaken by the Department regarding the appellant’s request. In fact, I note that the Department merely stated that“[s]earches were undertaken in the relevant Divisions (…)” and no further detail is provided. The Department did not provide any indication as to what searches were carried out in the relevant Divisions to reach this determination. Simply citing the names of the relevant Divisions to conclude that further“records relating to the appellant’s request do not exist” makes it difficult for me to assess the searches that have been carried out by the Department to reach that decision. Additionally, the Department did not provide any detail of the specific search terms, which they used; the specific physical files, which they searched, nor the specific electronic databases or main frame computers, which they searched. In conclusion, the Department has not shown that it gave any consideration to any individuals consulted with, which may hold information relevant to the request.
26. The Regulations do not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found, or, indeed, may have been destroyed in line with the public authority’s records management policies. The passage of time is also relevant factor in such appeals. It is also important to note that the Commissioner does not generally expect public authorities to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects a public authorises explanation of why a record does not exist. All that being said, and for the reasons I have set out above, I am not satisfied that the test set out in article 7(5) of the AIE Regulations - whether the public authority has taken all reasonable steps to locate the information sought – has been met in this instance.
27. In relation to the information partially released to the appellant, the Department has relied on article 9(1)(c) to withhold certain information requested by the appellant – namely the names of the applicants.
28. 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.
29. 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)
30. 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.
31. The appellant submits how the Department has cited its reliance on article 9(1)(c) to refuse to provide him with the requested information. However, he points out that the Department has failed to provide the reasons, as to why it considers that the disclosure of information relating to the import of pesticides/biomedes by salmon farm companies could specifically undermine the interests, which it protects.
32. Taking the above into account, I consider that article 9(1)(c) requires me to address the following questions:
• Is the confidentiality of the information protected by a national or EU law?
• Is that law in place to protect commercial or industrial confidentiality?
• Does that law have a precisely defined scope?
• Is that law objective, such that it does not permit public authorities to determine unilaterally the circumstances in which confidentiality can be invoked?
• Would disclosure of the information have an adverse effect on a legitimate economic interest?
33. 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).
34. As part of a focused submission, the investigator assigned to this case wrote to the Department on 9 March 2026 inviting them to provide further detail of their reliance on article 9(1)(c).
In response, the Department submitted the following to this Office:
“The national legislation relied upon is Article 36 of the Freedom of Information Act 2014. The company identity was provided to the Department in a regulatory context for which there is a reasonable expectation of confidentiality. The information is commercially sensitive in that it identifies market participants and their market share if the returns are reverse engineered, thus undermining commercial positioning.”
35. While the Department has categorised the information as ‘commercially sensitive’ and identified a law, which provides for the confidentiality of the information, it has failed to demonstrate what adverse effect the disclosure of the information would have on its legitimate economic interest. It has also failed to identify what provision within article 36 of the FOI Act it is relying on. If the Department intends to rely on article 36(1)(b) of the FOI Act should state this and set out how the essence of the test prescribed herein relates to the information at issue. “36. (1) Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains—
(a) trade secrets of a person other than the requester concerned,
(b) 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.”
36. The Department merely states that the release of the records would risk undermining the‘commercial positioning’ but it does not elaborate nor explain how its“market participants and their market share” would be undermined. Accordingly, in my view, the Department has failed to justify why it has refused certain information in relation to article 9(1)(c).
37. Having reviewed the information in question, I note it contains, prima facia, information of a commercial nature, which concerns both the Department and third parties. While this does not automatically confer the protection of 9(1)(c), it would not be appropriate in my view to direct release of it at this juncture. The correct course of action to my mind therefore, is to direct the Department to undertake a fresh internal review decision concerning the information redacted under this provision. To do otherwise would involve this Office making the equivalent of a first instance decision on whether article 9(1)(c) is justified – and despite my investigator asking the Department for further detail regarding its application of article 9(1)(c) – only limited further detail was forth coming.
38. For the Department to successfully justify its reliance on article 9(1)(C), it must also have regard to article 10(3) and 10(4) of the AIE Regulations – namely the public interest balancing test. The Department has given some limited insights into what factors it took into account when applying the public interest balancing test to this information. I note that the appellant has put forth some specific reasons as to why the release of this information is in the public interest. In the appellant’s statement of appeal, which was shared with the Department, he stated:
“The Department has also refused to supply me with information on which salmon farm companies imported the pesticides/biocides, citing the commercial or industrial confidentiality clause in refusing to supply me the information I requested in my original AIE request. I believe the public/consumers have a right to this information and I ask, which is more important, the health and safety of the general public, consumers and the marine environment or the profits of the salmon farming companies. Also the confidentiality clause can have an unfortunate side effect for salmon farmers, if there are any, who do not use pesticides to kill sea lice as they will be tarred with the same brush as the salmon farmers that do.”
39. Accordingly, I do not consider that the Department has considered the public interest in the release of this information to a satisfactory standard, and in particular, has not adequately addressed the points raised by the appellant in the above statement of appeal.
40. The Department should consider this matter afresh and if it intends on refusing any part of the original request, it should provide the appellant with adequate reasons for why it is doing so, taking account of the above.
41. Finally, I would like to acknowledge the unusual circumstances of this appeal - in that this is the third decision issued in relation to this request for environmental information. It is unfortunate that adequate searches were not demonstrated by the Department, and also that accurate records of imports and clarification regarding the imports of veterinary medicinal products were not provided to the appellant at the outset. Had the Department fulfilled its obligations under the AIE Regulations initially, there is the possibility it could have avoided the need for a further appeal, or at a minimum reduced the scope of the appeal.
42. 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 Department’s decision to refuse the appellant’s request under article 9(1)(c) and article 7(5) of the AIE Regulations and direct it to undertake a fresh internal review.
43. 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