Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-123398-N7C0X6
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-123398-N7C0X6
Published on
A) Whether the Department was justified in withholding certain information on the basis that article 8(a)(i) applies
B) Whether the Department was justified in refusing the certain parts of the appellant’s request under article 7(5) on the basis that no information is held by it
2 December 2025
1. On 8 March 2022, the appellant requested the following information from the Department:
“1.A full documentated Report of any inspections carried out by Inspectors in the Department of Agriculture Food and The Marine on Meehan Dairies Farm in the townland of Ballyvanna, Crusheen, Co Clare in 2021/ 2022 relating to the pollution of Ballygassane lake and streams.
2.All original photos in the original format for example jpeg, jpg, or png taken during Farm/Environmental Inspections of Meehan Dairies in the townland of Ballyvanna, Crusheen, Co. Clare.
3.All correspondence between The Department of Agriculture Food and the Marine and the Environment and Water Services Department of Clare County Council, Inland Fisheries Limerick, National Parks and Wildlife and Meehan Dairies relating to any farm / environmental inspection of Meehan Dairies
4.Records of water samples that were taken during the inspection of Meehan Dairies by the Department of Agriculture Food and the Marine
5.Original photos of Meehan Dairies farm development in the original format, taken during the farm / Environmental inspection.
6.A full documentated Report into the damage the pollution has done to water supplies on (the appellant’s) farm also to habitats/ wildlife e.g trout, eel, hen harrier, merlin otter, bivalve molluscs in Ballygassane lake and stream and surrounding (the appellant’s) farm.
7.A report of any sanctions / fines that have been applied under the Cross compliance / BPS scheme.”
2. On 16 March 2022, the Department issued its original decision refusing release of information relevant to part 1, 2 and 7 of the appellant’s request for information on the basis of article 8(a)(i) of the AIE Regulations. It set out that the confidentiality of the records is protected by section 37 of the FOI Act. It also set out the public interest balancing test under article 10(3) of the AIE Regulations.
3. With regards part 3 of the appellant’s request for information – the Department stated it had forwarded the appellant’s“emails and attachments to the Department of Housing, Local Government and Heritage, as it stated that that government department is responsible for the legislation referred to.”
4. With regards part 4 of the appellant’s request - the Department stated it does not take water samples and is not the custodian of water sample analyses data. It stated that under the relevant legislation, the Local Authority has responsibility for pollution investigation and the protection of surface waters, including water sampling and analysis.
5. With regards part 5 of the appellant’s request – the Department stated that“if there are planning considerations regarding a farm development, this is a matter for the Local Authority which has responsibility for planning purposes.” The Department stated that it has no responsibility for investigations into pollution of water supplies – rather this is the responsibility of the relevant Local Authority. It also stated that it has no responsibility for investigations into the impacts of pollution on habitats or wildlife – rather this is the responsibility of the National Parks and Wildlife Services.
6. With regards part 6 of the request – the Department stated that the National Parks and Wildlife Service within the DHLGH has responsibility for the designation and protection of habitats and species identified for nature conservation under the relevant legislation. In addition, the Department stated that it had forwarded the appellant’s emails and attachments to the Department of Environment, Climate and Communications (DECC), as that government department is responsible for Inland Fisheries Ireland, which is the dedicated state agency for protection, managing and conserving Ireland’s inland fisheries and sea angling resources.
7. On 23 March 2022, the appellant requested an internal review of the Department’s decision on the basis that“I believe the Department of Agriculture and the Marine has not given sufficient consideration to Article 10(1) 10(2) and 10(3) of the AIE regulations.”
8. The Department issued its internal review decision on 19 April 2022. It said that having examined the matters relevant to the request, the decision made by the initial decision- maker should be varied. Firstly, it affirmed the original decision with regards part 1, 2 and 7 of the appellant’s request.
9. The Department stated that the decision regarding part 3 of the request should stand as per the original decision - that the records can be granted. It stated that the correspondence between the Department of Agriculture and the Department of Housing, and the Department of the Environment on foot of the submissions to the Department of Agriculture by the appellant in the appellant’s emails of 3 November 2021, 16 November 2021 and 22 December 2021 can be made available to the appellant. The Department also added that copies of this correspondence were previously made available to the appellant in a response issued to him on 23 December 2021 and was referred to again in the original decision letter. The Department also stated that it had no other records of any correspondence with the public bodies that the appellant mentioned concerning these matters.
10. The Department set out a schedule of records in its internal review. Further, it set out that it considered whether the information requested relates to emissions under article 10(1) – and concluded that it did not. It stated that it had taken into account the public interest in accordance with article 10(3) and article 10(4).“I have determined that the public interest would not be served by disclosing the information you request. In particular, since this Department is not in possession of information on emissions and the alleged pollution of Ballygassane lake and streams, I find that disclosing the information you request would not be relevant information for the purposes of your AIE request.”
11. With regards parts 4, 5 and 6 of the request - the internal review set out that this information was not held by the Department and is therefore refused under article 7(5) of the AIE Regulations. It stated the competent authority to whom this part of the request should be directed to was clearly laid out in the decision letter.
12. The appellant appealed to my Office on 12 May 2022. In his preliminary submission he stated:
“I have written to the Department requesting a report on their inspection of by a dairy farm in relation to the pollution of Ballygassane lake and stream and they have refused this and also refused all correspondence between themselves and 3 government agencies ( Clare county council, inland fisheries and NPWS) investigating the pollution of Ballygassane lake even though this pollution has resulted in all fish killed, damage to otter and hen harrier habitat etc, severe euthrophication of streams etc and matters have not been addressed to end the pollution. I can confirm the department of agriculture were in contact with Clare county council etc by 2 emails.”
13. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In doing so, 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 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’).
14. 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.
15. The Department has identified two records in relation to part 1 and part 7 of the appellant’s request – a cross-compliance inspection report and a formal notice to the appellant regarding the outcome of that inspection (hereinafter referred to as Record 1 and Record 2). The Department’s position is that it is granting release of certain information contained within both these records on the basis that this information pertains to statutory management requirement 1 - protection of water against pollution caused by nitrates. The Department states that this could be considered emission data, therefore is granting release of this data in both records, in line with article 10(1) of the AIE Regulations which provides –“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.”
16. Given that the Department is releasing this portion of the information, I do not need to consider it further. The Department is refusing release of the remainder of the two records on the basis of article 8(a)(i) of the AIE Regulations.
17. The Department has also relied on article 7(5) of the AIE Regulations on the basis that no information pertaining to part 2, 4, 5 or 6 of the appellant’s request is held for or by it.
18. I understand a number of records have already been released by the Department to the appellant, in relation to part 3 of the appellant’s request. An investigator from this Office, asked the appellant in recent correspondence to clarify whether he maintained that more records could or should exist in relation to this particular part of the request. He did not respond to this question, therefore I am satisfied that the appellant does not contend that more information is held by the Department in relation to part 3 of the request.
19. Accordingly, I am satisfied that the scope of this appeal concerns whether the Department was justified in refusing access to certain information contained within two records relating to part 1 and part 7 of the appellant’s request, under articles 8(a)(i) of the AIE Regulations. The scope of this appeal is also whether the Department was justified in refusing access to further relevant information relating to parts 2, 4, 5 and 6 of the appellant’s request under article 7(5) of the AIE Regulations.
20. The appellant has requested in recent correspondence to this Office that we“forward all documents on at your earliest convenience or I will be seeking an investigation why the Environmental Commissioner's Office is openly allowing public bodies to hide behind legislation that they are legally not entitled to, under the A.I.E Regulations 2000” . I feel it is necessary for me to comment that it is not the role of this Office to “forward” or otherwise release information. During the course of an investigation relevant information is received in this Office for review only. In the case that the Commissioner decides it would be appropriate for a public authority to release this information, he will direct it to do so in the decision and the appellant will receive this information directly from the public authority in question. The decisions of the Commissioner are legally binding, although they may be appealed to the High Court on points of law.
21. The Department has identified one record relevant to the first part of the appellant’s request pertaining to–“A full documentated Report of any inspections carried out by Inspectors in the Department of Agriculture Food and The Marine on Meehan Dairies Farm in the townland of Ballyvanna, Crusheen, Co Clare in 2021/ 2022 relating to the pollution of Ballygassane lake and streams.”
22. The record identified consists of an inspection report titled“cross compliance inspection report for inspection carried out on 17 November 2021”. It consists of a 2-page inspection report carried out by Department of Agriculture officers on the holding of the named farmer.
23. By way of background, Cross Compliance is implemented under two main areas; Statutory Management Requirements (SMRs) and Good Agricultural and Environmental Condition (GAEC) standards. There are thirteen SMRs which refer to 13 legislative requirements in environment, food safety, animal and plant health and animal welfare. GAEC requires land to be kept in good agricultural and environmental condition and consists of seven standards related to soil, protection and maintenance of soil organic matter, protection of habitats and protection of water sources.
24. While I must be careful not to detail the contents of the inspection report in this decision – it broadly consists of inspection findings under 5 separate SMRs and 1 GAEC. As set out in the scope section of this decision, the Department’s position is that it is granting release of the information within the report that relates to SMR Area 1 (nitrates), on the basis that it relates to article 10(1) of the AIE regulations. The remainder of the information within the record is refused under article 8(a)(i).
25. The second record identified by the Department relates to part 7 of the appellant’s request –“a report of any sanctions / fines that have been applied under the Cross compliance / BPS scheme.” The record identified consists of 5 pages and contains a formal notice from the Department to the named farmer informing him of follow up action in relation to the cross-compliance inspection carried out on 17 November 2021. Similar to Record 1, the Department is granting release of information contained within this record which relates to SMR Area 1 (nitrates). The remainder of the information is being withheld by the Department on the basis of article 8(a)(i).
26. During the course of this appeal, the appellant stated his position that the information requested by him clearly falls under emissions data and therefore cannot be withheld on the basis of article 8(a)(i) – as per article 10(1) of the Regulations.
27. I note that while the Department has identified Record 1 as being relevant to part 1 of the appellant’s request, it emphasises that this inspection report was not related to“the pollution of Ballygassane lake and streams” as per the wording of the appellant’s request. The Department clarified that the finding contained in the report (Record 1) relates to the land inspected at this time, is specific to the farm itself and that the findings at inspection are not conducive with the appellant’s contention regarding pollution of the lake. I note both the Department and the appellant’s comments, but also stress it is not the job of the Commissioner to comment on whether there is a connection or otherwise between the findings in the inspection record and the alleged pollution in Ballygassane lake. The Department has identified Record 1 and 2 as being relevant to the appellant’s request, therefore my review is concerned with whether the Department is justified in refusing access to certain information contain therein, on the basis that article 8(a)(i) applies.
28. The CJEU has assessed the meaning of the phrase “information on emissions into the environment” in its decision in C-442/14 Bayer CropScience and Stichting De Bijenstichting v College voor de toelating van gewasbeschermingsmiddelen en biociden (Bayer). The Bayer 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.
29. In Bayer, 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).
30. 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).
31. 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).
32. I have considered the contents of the records in detail and am satisfied that the information in Records 1 and 2 withheld by the Department does not relate to emissions, therefore article 10(1) does not apply.
33. As set out above, the Department are refusing release of information contained within 2 records on the basis of article 8(a)(i) applies. I consider it appropriate to briefly set out the approach to personal data under the AIE Regime with reference to the GDPR.
34. 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).
35. 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.” 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.
36. 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 C-26/22 SHUFA Holding at paragraph 73).
37. 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.
38. 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.
39. 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.”
40. 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).
41. 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.
42. 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 C-597/19 M.I.C.M., at paragraph 106). For convenience, this is known as the ‘legitimate interest test”.
43. 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.
44. 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.
45. 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).
46. 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.
47. 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.
48. 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:
a. 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
b. 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 Baden-Württemberg , paragraphs 59-61).
49. 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.
50. The Department has sought to rely on article 8(a)(i) to withhold information contained within the inspection report (Record 1) and the formal decision correspondence (Record 2).
51. I am satisfied the information at issue in this case is environmental information under article 3(1) of the AIE Regulations. I also consider the environmental information at issue includes personal data. The information contained within the records at issue contains personal data consisting of the data subject farmer’s name, address, herd numbers under his care, land parcel numbers and animal tag numbers. The records also contain the names of the inspectors from the Department who carried out the compliance inspections on this farm.
52. Regarding the issue of consent, the Department confirmed that it has not consulted with the farmer regarding this information request. An investigator from this Office wrote to the data subject/farmer who confirmed that he was not willing to give consent to his information being released.
53. 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 (both the farmer, and the named inspectors) against the public interest in the disclosure of the environmental information.
54. 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 in this decision as the analysis is the same.
55. In the interests of refusing disclosure of the environmental information, I have carefully considered the data subject’s 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.
56. Certain types of sensitive personal data are subject to additional protection under the GDPR. These are listed under Article 9 of the GDPR as “special categories” of personal data – and processing of such data shall be prohibited. I note that Record 2 contains certain information that qualifies as a special category of personal data under the GDPR. – This information specifically can be found within page 3 and page 4 of Record 2. I accept that the disclosure of this information would constitute an unwarranted intrusion into the privacy of the individual concerned. In weighing up the public interest in release of the information, it does not outweigh the individual’s right to privacy in respect of this information. I therefore find that the Department is justified in relying on article 8(a)(i) to withhold the information within the records which relates to a special category of personal data.
57. The remainder of the personal data contained within the two records does not relate to a special category of personal data. That is to say the data is not considered sensitive to the point it requires additional safeguards due to the potential risks associated with its misuse.
58. 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 farmer, if their data is released. The Department has not identified any tangible adverse effect of this information being released. And, to my knowledge there is no evidence to suggest that release of the information contained in the inspection report would result in any adverse effect to this individual. An investigator from this Office gave the data subject farmer the opportunity to provide an example of such an adverse effect and nothing tangible was identified. If any adverse effects for the data subject were to flow from this information being released – for example in the event of an indication of non-compliance leading to reputational damage – I must consider whether these are outweighed by the greater public interest in the information being disclosed.
59. 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.
60. I also accept that there is a general interest in the disclosure of information regarding the compliance or otherwise of those in receipt of the Basic Payment Scheme, with the cross- compliance requirements. For context, the Basic Payment Scheme is an income support paid to farmers, and any farmer who applies for it is subject to cross compliance requirements. It is, in essence, the linkage of direct financial support to the observance of environmental and other law. Public awareness of a farm’s compliance or otherwise would support greater understanding and transparency in terms of how such inspections of farmers receiving subsidies, operate in practice.
61. In addition to the general public interest in transparency around such inspections, I also consider there to be a specific public interest in the disclosure of the environmental information contained in the records at issue.
62. While not required to do so by the AIE Directive, the appellant has provided specific public interest reasons as to why he has made this request for environmental information to the Department. The appellant set out in detail his concerns regarding local water pollution resulting in“all fish killed, damage to otter and hen harrier habitat etc, severe euthrophication of streams etc and matters have not been addressed to end the pollution.” The appellant has made allegations pertaining to farm activity being responsible for this water pollution and has provided evidence to support his position.
63. While the Department has been at pains to stress during the course of this appeal, that it bears no responsibility for investigations into water supplies (this responsibility lies with the relevant local authority) the release of the information at issue would provide insight into the substance of any cross compliance inspections that were carried out by the Department in relation to this farm, and what sanctions were applied on foot of such inspections, if relevant. I say this bearing in mind cross compliance introduced measures which, according to the Department’s own website, are important for society in general, such as nitrate limits in fertilisation practices, protecting NATURA 2000 areas, food safety, animal welfare and the traceability of food from animals, biodiversity and climate change.
64. I make no comment on, nor is it my role to draw a link between the serious water pollution alleged by the appellant, and any of the contents of the all the evidence into account. However I consider there to be a significant public interest in the release of the information which details findings of cross compliance inspections, particularly where environmental concerns such as water pollution have been raised in the local area. I am reminded that the purpose of such an inspection is to verify that farmers comply with the 13 SMRs set down in EU legislation on the public health, animal and plant health, animal welfare, and the environment, and to verify that farmers comply with the 7 standards pertaining to GAEC of land. There is a strong interest in the public being assured that farmers in receipt of the Basic Payment Scheme are compliant with their obligations, and that remedial actions in the form of sanctions are issued where issues of non-compliance, that have the potential to impact on the environment, are identified by the Department.
65. 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, to my mind such impact would not outweigh the public interest in the release of the information. In these circumstances, I find that the public interest served by disclosure of the information (save any data falling into a special category of personal data outlined above), outweighs the interest served by refusal.
66. Record 2, contains personal information in the form of the names of the District Inspector and the District Super-intendent from the Department of Agriculture who carried out the inspections in the course of their duties. There is no evidence that these individuals have been consulted by the Department in relation to this request, therefore I do not consider they have consented to their information being released.
67. I have considered the individual data subjects’ 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 of Fundamental Rights of the European Union. I have considered the nature of the information in question, namely information regarding a person’s employment. I consider this to be at the less sensitive end of the scale of personal information, given that such information is often freely made available by data subjects on the internet and elsewhere. When considering individuals’ interest in the protection of their personal data, I have taken into account whether there is likely to be any adverse effect for the individuals or otherwise, if their data is released.
68. 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 Right of the European Union.
69. I consider that those of us working in the civil and public sector should identify ourselves and our work contact details, in the spirit of public sector values such as accessibility, transparency and integrity. While it may be the case that in some circumstances it is not appropriate for staff names and details to be released through AIE, I am satisfied that this should only occur in exceptional circumstances. I am not persuaded that such circumstances are present in this case.
70. Weighing the above interests in the balance, I conclude that the public interest in releasing the names of the District Inspector and District Super-Intendant outweighs the interests served by the refusal.
71. With regards part 2, 4, 5 and 6 of the appellant’s request – the Department has refused the request on the basis of article 7(5) - that no information is held by or for it.
72. Part 2 of the appellant’s request for information was for:“All original photos in the original format for example jpeg, jpg, or png taken during Farm/Environmental Inspections of Meehan Dairies in the townland of Ballyvanna, Crusheen, Co. Clare.”
73. In the original decision the Department stated it was relying on article 8(a)(i) to refuse part 2 of the appellant’s request. However, it clarified in the internal review, and upon submission to this Office that it does not hold any photos on file from this inspection nor is it part of its procedures to routinely take photos during inspections. It acknowledges that its reliance on article 8(a)(i) in the original decision may have given the impression that there were photographs on file, but it confirmed having conducted a full search of the inspection file and its inspection system that there are no photos on file for this herd owner whatsoever.
74. Therefore, part 2 of the appellant’s request is refused by the Department in line with Article 7(5) of the AIE Regulations –“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.”
75. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. It is the relevant provision to consider where the question arises as to whether the requested environmental information is“held by or for” the public authority concerned.
76. In cases where a public authority has effectively refused a request under article 7(5), this Office must be satisfied that 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 must necessarily apply. It is not normally this Office’s function to search for environmental information.
77. The Department confirmed in submission to this Office that it does not have any photos on file from this inspection“nor is it part of our procedures to routinely take photos during inspection.” The Department also stated that it conducted a full search of the inspection file and its inspection system.
78. I consider the conclusion that the Department does not hold any information relevant to part 2 of the request to be reasonable in light of the content of the inspection report record which was identified in relation to part 1 of the request. In particular, I note that this inspection report contains nothing that would suggest the existence of photographs in relation the inspection conducted by the Department. It also tallies more broadly with my general knowledge of cross compliance inspections carried out by the Department, and I consider the explanation that it is not a usual occurrence for photographs to be taken during such an inspection to be persuasive. For these reasons, I am satisfied that it is not necessary or reasonable to require the Department to carry out any further searches for the information sought in relation to part 2 of the AIE request.
79. Part 4, 5 and 6 of the appellant’s request relates to the following:
“4 Records of water samples that were taken during the inspection of Meehan Dairies by the Department of Agriculture Food and the Marine
5. Original photos of Meehan Dairies farm development in the original format, taken during the farm / Environmental inspection.
6. A full documentated Report into the damage the pollution has done to water supplies on (the appellant’s) farm also to habitats/ wildlife e.g trout, eel, hen harrier, merlin otter, bivalve molluscs in Ballygassane lake and stream and surrounding (the appellant’s) farm.”
80. The Department has set out its reasoning as to why this information is not held by or for it, in the internal review and in submission to this Office. Regarding part 4, which relates to water samples, it states that“under the relevant legislation, the Local Authority has responsibility for pollution investigation and the protection of surface waters, including water sampling and analyses.” The Department states it does not take water samples for any inspection and therefore do not have these records. There is nothing in the inspection records that have been identified by the Department in relation to part 1 and 7 of the request, to contradict this position, ie there is nothing to suggest that water samples had been taken by the Department during the inspection of the farm in 2021.
81. Regarding part 5, the Department states that if there are planning considerations regarding a farm development, this is a matter for the Local Authority which has responsibility for planning purposes. The Department states it did not take any photos on the day of inspection, nor do they conduct environmental inspections. Again, there is nothing in the inspection records identified by the Department to make me doubt the reliability of this position.
82. Finally, with regards part 6 - the Department states it has no responsibility for investigations into pollution of water supplies. It states that this is the responsibility of the relevant Local Authority. In addition, the Department states it has no responsibility for investigations into the impacts of pollution on habitats or wildlife – rather this is the responsibility of the National Parks and Wildlife Service.
83. The Department added that the relevant parts of the appellant’s request was forwarded to the Quality Services Unit of the Department of the Environment, Climate and Communications on 23 December 2021 and also to the Quality Services Unit of the Department of Housing, Local Government and Heritage on this same date. It states the appellant was copied into both. The Department also stated that the relevant parts of the appellant’s request was forwarded to Clare County Council in June of 2021 and the appellant was informed of this.
84. I consider the conclusion that the Department does not hold any information relevant to part 2, 4, 5 and 6 of the request to be reasonable in light of the content of the request and the explanations provided. For these reasons, I am satisfied that it is not necessary or reasonable to require the Department to carry out any further searches for the information sought in relation to part 2, 4, 5 or 6 of the AIE request. Considering the circumstances of this appeal, I am persuaded based on the information before me, that the Department has taken sufficient steps to determine that it does not hold environmental information relevant to the appellant’s request and accordingly, was justified in refusing the request based on article 7(5) of the AIE Regulations.
85. Having carried out a review under article 12(5) of the AIE Regulations, I vary the Department’s decision and find that the Department was justified in withholding certain parts of a record pertaining to part 7 of the appellant’s request on the basis of article 8(a)(i). With regards the remainder of the relevant information, I find the Department was not justified in withholding information on the basis of article 8(a)(i). I also find that the Department was justified in refusing certain parts of the appellant’s request under article 7(5) on the basis that no information is held by it.
86. I direct the Department to release the parts of record 1 and 2 that do not fall into the special category of personal data set out in paragraph 56.
87. 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.
Julie O’Leary on behalf of the
Commissioner for Environmental Information