Decision
Ms X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-148947-N1B3F4
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-148947-N1B3F4
Published on
Whether or not the Department was correct in its application of article 8(a)(i) of the AIE regulations to redact personal information from an Afforestation Licence and a Felling Licence.
05 February 2026
1. On 15 March 2024, the appellant requested:
I. “Unredacted copy of the afforestation licence CN86267 dated 14 March 2024
II. Unredacted copy of the Site Notice for CN86267
III. Unredacted copy of the felling licence TFL00397619 dated 14 March 2024”
2. On 10 April 2024 the Department issued its original decision to part grant the appellant’s request. The Department released 3 records with some information redacted under article 8(a)(i) of the AIE Regulations. The Department supported this decision by claiming that the confidentiality of records was otherwise protected under Section 37(1) of the Freedom of Information Act 2014.
3. The appellant submitted a request for an internal review on 10 April 2024.
4. The Department issued its internal review decision on 25 April 2024 affirming its original decision that the redactions were applied in accordance with article 8(a)(i) of the AIE Regulations. The basis for this decision was that applications which predate 2021 did not include an opt in for stakeholders to consent to their information being shared with third parties.
5. The appellant appealed to this Office on 14 May 2024. In their appeal, the appellant submitted that 15 licences had been granted by the Department on 14 March 2024 however only 2 of the licences contained redactions on the Department’s Forestry Licence Viewer(FLV). These records form the basis of the appeal.
6. On 23 May 2024, this Office contacted the Department and the appellant separately to invite submissions on the appeal.
7. On 2 June 2024 the appellant responded, notifying this Office that the appeal related to the afforestation and felling licences only and that they did not require any further information in relation to the site notice referred to in the original request. The investigation of this appeal relates to the redactions made on the afforestation and felling licences dated 14 March 2024.
8. I am directed by the Commissioner to undertake 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 of Agriculture, Food and the Marine. I have also examined the contents of the records at issue in their redacted and unredacted formats. 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’).
9. In accordance with article 12(5) of the AIE Regulations, the role of this Office 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 Department to make available environmental information to the appellant.
10. The Department has part-refused the appellant’s request on the basis of article 8(a)(i) of the AIE Regulations. The Department has withheld the name (in some instances), address and forest owner number of the licensee in the afforestation licence (CN86267) dated 14 March 2024 and both the name and address of the licensee on the felling licence (TFL00397619) dated 14 March 2024.
11. The appellant requested an unredacted copy of the afforestation and felling licences. My review in this case is concerned with whether the Department is entitled to rely on article 8(a)(i) of the AIE Regulations to withhold the names, addresses and forest owner numbers for individuals applying for forestry licences as contained in the records identified as being within scope of this request.
12. It is necessary to note at this juncture that whilst the forest owner name is redacted in some instances on documents related to the afforestation licence (CN86267), the forest owner’s name was provided (in error) at the top of the letter and in the first 2 lines where he is referred to as landowner. This particular information is already within the public domain in this instance and was published on the Forestry Licence Viewer (FLV) in 2022. As a result of this investigation, the Department have since corrected the redactions and removed this information from the FLV.
13. It is the appellant’s position that the address and, on one occasion, the name of the forest owner on the afforestation licence (CN86267) and the name and address of the licensee of the felling licence (TFL00397619) which were redacted by the Department, should have been released. The appellant contends that 15 licences were issued by the Department on 14 March 2024, the names and addresses of the licensees were released in 13 out of the 15 licences. The redactions made to the records which are the subject of this investigation relate to the remaining 2 licences issued on the same date (14 March 2024).
14. It is the appellant’s belief that no adverse effect was suffered by the 13 licensees who had their information released on the same date therefore the redactions made to the afforestation licence (CN86267) and felling licence (TFL00397619) did not meet the threshold for a valid application of article 8(a)(i).
15. Furthermore, the appellant noted that the applicant for afforestation licence (CN86267) is likely to receive public funding over the next 15-20 years and as such they were of the opinion that there is a high public interest argument in favour of release. In relation to felling licence (TFL00397619), the appellant argues that the applicant in this case may have already received public funding for the trees subject to a clear felling licence.
16. In its submissions, the Department noted that the Foresty (Miscellaneous Provisions) Act 2020 amended the Forestry 2014 to allow the Department to publish personal information contained in documents relating to forestry licence applications. The Forestry Licence Viewer (FLV) was launched in 2 phases, under phase 1 from December 2020 some information in relation to applications received from January 2018 was released to the public on the FLV but this did not include personal information. Phase 2 commenced in January 2021 which saw the application documentation of all forestry licence applications received after 11 January 2021 published including some personal information.
17. The Department advised that all forestry licence applications post dating 11 January 2021, must include a signed“FLV Declaration”. The declaration specifies that the applicant’s name, address, the location of the land and the nature of the operation will be made available on the FLV. It is the Department’s argument that applications made prior to 11 January 2021 did not contain the“FLV Declaration” and the Department therefore, did not have permission to publish personal information. The Department stated that its policy to redact personal information on pre-January 2021 applications was in line with their obligations under Forestry Regulations 2017 (S.I. No. 191/2017).
18. In relation to this particular instance, the Department noted that the application for an afforestation licence (CN86267) was received on 20 April 2020 and the felling licence (TFL00397619) was received on 21 August 2019. The Department accepted that 2 errors had occurred in respect of the redactions made to documents uploaded to the FLV in this case.
19. Firstly, that a site notice for afforestation licence (CN86267) had been redacted incorrectly resulting in the applicant’s name being published on the FLV in August 2022. The applicant’s name had been redacted in other documents uploaded around the same time. Secondly, the Department advised that its decision maker had incorrectly provided the applicant’s name on the aforementioned site notice and on other documents which were again incorrectly redacted. Therefore, the appellant was able to view the afforestation applicant’s publicly on the FLV and in documents provided to them in response to this request. The appellant did not receive a copy of the address of the applicant or the forest owner number in relation to afforestation licence (CN86267).
20. Upon discovery of the errors made in relation to the release of the applicant name for afforestation licence (CN86267), the Department contacted the Forestry Division’s Information Officer who requested that the site notice be removed from the FLV and redacted correctly and also requested that the appellant delete the documents sent to them which contained the applicant’s name. The Department noted that it had informed its Data Protection Unit of the incident.
21. Finally, the Department reviewed all 15 licences issued on 14 March 2024 and confirmed that 13 out of the 15 licences related to applications received on or after 11 January 2021.
22. In this case, the Department sought to withhold the name, address and forest owner number of the applicant in relation to the afforestation licence (CN86267) and the name and address of the applicant in relation to the felling licence (TFL00397619) under article 8(a)(i) of the AIE Regulations.
23. In order to rely on article 8(a)(i) the information must show disclosure of the information— “(a) would adversely affect— (i) the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law.”
24. I consider it appropriate to briefly set out the approach to personal information under the AIE Regime with reference to the GDPR.
25. 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).
26. 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 the 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.
27. 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 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 Case C-26/22 SHUFA Holding at paragraph 73).
28. 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.
29. 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.
30. 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.
31. 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 C-597/19 M.I.C.M., at paragraph 106). For convenience, this is known as the ‘legitimate interest test”.
32. 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-26/22SHUFA Holding at paragraph 76). Taking this into account, once a person has made a valid request for environmental information, I consider the first condition of the legitimate interest test is met.
33. 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.
34. 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, at paragraph 111).
35. 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.
36. 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: a) that an AIE request has been made, b) that the requested information is environmental information, c) that the environmental information is or includes personal data, and d) that the data subject has not consented to the disclosure of the personal data.
37. 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. 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).
38. In this case, I am satisfied that a valid AIE request has been made (this is not in dispute). I am also satisfied that the information requested by the appellant in this case is environmental information under article 3(1) of the AIE Regulations. I also consider that the environmental information at issue (redactions made to the afforestation licence (CN86267) and the felling licence (TFL00397619)) contain personal data.
39. There is no evidence before me to suggest that data subjects have consented to the disclosure of their personal data.
40. Having determined the above matters, I am satisfied that the appellant in this case 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 and weigh the rights of the data subjects against the public interest in the disclosure of the environmental information.
41. In its internal review, the Department outlined the basis for its refusal under the public interest balancing test under article 10(3) of the AIE Regulations as follows;
“The factors in favour of withholding this information are the fact that the Applicant involved in the case never consented to their information to be made available to a third party. They never had a site notice containing personal information in situ either. The disclosure of personal information to a third party adversely affects the confidentiality of that information and I have decided that a breach of the applicant’s privacy rights is not in the public’s interests in this case and therefore the public interest is best served by refusal to disclose this information.”
42. In respect of the data subjects’ interest in the protection of their personal data in this case, I note that the personal data at issue (names, address and forestry licence number) does not fall under any of the special categories of personal data meriting higher protection (see Article 9 GDPR).
43. In favour of withholding, I have considered the relevant parties’ interests in the protection of their personal data, taking into account the nature of the specific personal data at issue and the data subjects’ rights under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union. When considering the data subjects’ interest in the protection of their personal data, I have taken into account whether there is likely to be any adverse effect on them, if their data is released. I am also mindful that the right to privacy has a constitutional dimension having been recognised as an unenumerated right under the Constitution, and of the strong protection afforded to privacy rights under Article 8 of the European Convention on Human Rights.
44. In favour of release, 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 Rights of the European Union. I have also considered the public interest in information on the Forestry Appeals process as a whole. I have taken into account the appellant’s assertion that the applicant, in relation to the afforestation licence was likely to receive public monies in the form of a grant, therefore it is in the public interest for the redacted information to be released.
45. I also note that the Department has not advanced any persuasive arguments as to how the release of the information within the records identified would lead to an adverse outcome. The appellant points out that the Department had issued 15 licences on the FLV on 14 March 2024, 13 of which were unredacted. The remaining 2 licences are the subject matter of this appeal. The Department has not been able to point to any tangible adverse effect as a result of the licences being released in full on the FLV. Furthermore, I note the name of the forest owner in relation to the afforestation licence has already been released to the appellant - albeit in error.
46. Finally, as set out in submissions to this Office, the Foresty (Miscellaneous Provisions) Act 2020 amended the Forestry 2014 to allow the Department to publish personal information contained in certain documents relating to forestry licence applications and the policy of the Department now, is to release the information. My understanding is that the Department does not accept forestry licence applications without a signed “FLV Declaration” therefore when an individual is applying for a licence they have no choice but to have this personal information released.
47. Taking all of this into account, and weighing the above mentioned interests in the balance, I conclude that the public interest in releasing the information at issue in this appeal outweighs the interests served by the refusal.
48. The information to be released is as follows:
a. Afforestation Licence (CN86267) – Name and address of applicant, forest owner and forest owner number.
b. Felling Licence (TFL00397619) – Name and address of applicant.
49. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision and direct release of the redacted records.
50. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
______________________
Gemma Farrell
Senior Investigator on behalf of the Commissioner for Environmental Information