Decision
Mr Eoin Brady and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-123784-K1Y0S8
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-123784-K1Y0S8
Published on
i) whether the Department holds information in relation to any application for a Nitrates Derogation License in respect of the named farm
ii) whether information relating to cross-compliance of the named farm with the requirements of the Basic Payment Scheme is environmental information in line with article 3(1) of the AIE Regulations
iii) Whether the Department is justified in withholding information relating to cross-compliance of the said farm with the requirements of the Basic Payment Scheme, on the basis of article 8(a)(i) of the AIE Regulations
12 November 2025
1. On 21 March 2022, the appellant requested the following information from the Department in relation to a named farmer’s folio:
“all information submitted by this farmer to the Department in respect of the following:
- Any information held in relation to any application for a Nitrates Derogation License in respect of this farm;
- All information held by the Department in relation to cross-compliance of the said farm with the requirements of the Basic Payment Scheme.
To note that any private information or information in relation to financial payments can be redacted.”
2. In his email request for information to the Department, the appellant stated the name of the farmer, his folio number and location in which he operates a dairy farm. While under no obligation to do so, the appellant provided context as to the reason for the AIE request. In this regard, he attached a Wexford County Council Planner’s Report, where permission for the named farmer to build a milking parlour was refused on the basis that it did not demonstrate sufficient effluent storage capacity available on site and it was not clear that the development would comply with the EU nitrates Directive and therefore may present a public health hazard. The appellant alleged that significant levels of coliform bacteria have been recorded in a private drinking well beside the farm in question and that at the time the request was made Wexford County Council were in the process of prosecuting this farmer for failure to comply with an Enforcement Notice in Wexford District Court.
3. On 7 April 2022, the Department issued the appellant with its original decision in relation to Part 1 of the request –“information held in relation to any application for a Nitrates Derogation License in respect of this farm.” Its decision was to refuse the request on the basis of article 8(a)(i) – as the relevant records contained personal information. The Department said it was relying on Section 37(1) of the Freedom of Information Act 2014 as the law that protects the confidentiality of the records in question. It said it had taken into account article 10 of the AIE Regulations – in particular the public interest balancing test.
4. In separate correspondence, also dated 7 April 2022, the Department issued the appellant with its original decision in relation to Part 2 of his request –“all information held by the Department in relation to cross-compliance of the said farm with the requirements of the Basic Payment Scheme” . Its decision was to refuse access to the“inspection records” and cited article 8(a)(i) of the AIE Regulations. It said it was relying on Section 37(1) of the Freedom of Information Act 2014 as the law that protects the confidentiality of the records in question. It said it had taken into account article 10 of the AIE Regulations – in particular the public interest balancing test.
5. On 7 April 2022, the appellant requested an internal review. He stated that the decision to refuse the environmental information requested in Part 1 and Part 2 of his request on the basis of article 8(a)(i) of the AIE Regulations – cannot be justified as it does not involve“confidential information.” Again, the appellant went on to provide reasoning and background as to why he was seeking this information. He said he has reason to believe the farm in question may be causing environmental pollution, including water pollution. He attached the planner’s report of Wexford County Council in relation to this farmer’s unauthorised milking parlour and slurry storage facilities – and highlighted an extract which read:
“While the principle of agricultural buildings within a rural location, for the purposes of conducting rural-type activity is acceptable to the Planning Authority, insufficient information has been submitted with the planning application to allow a full assessment of the proposal at hand with respect to sufficient storage capacity and lands available for spreading. together with environmental concerns regarding the protection and safety of nearby water supplies….The concerns raised in the objections are noted and the issue relating to AA Screening is a concern having regard to the lack of information provided to screening the development adequately.”
6. In that regard he also attached the relevant Screening report for Appropriate Assessment by an ecologist in relation to the agricultural activities at this farm which concluded that“the screening report based on the available scientific information and project details, demonstrates that the significance of the effects of the application for retention permission and permission for agricultural buildings and ancillary structures in the townland of (the farm in which the current information request relates) is uncertain and that there is a risk of likely significant effects on both the Slaney River Valley SAC and Blackstairs Mountains SAC.”
7. The appellant alleges that there is a significant potential environmental effect arising from the operation of the unlawful agricultural structures and the associated dairy operation. The appellant stated this is public information and there is no confidentiality accorded to the farmer in these matters as his identity is well known. For this reason, he does not agree there is a basis for refusing the information sought. He did however acknowledge that according to a previous decision made by the Commissioner, in Case OCE-98828, it is in order for the Department to redact matters such as the farmer’s contact details, his health conditions and his personal signature from the information to be disclosed.
8. The Department issued its internal review decision in relation to Part 1 of the appellant’s request on 6 May 2022, affirming the original decision. The Department also issued separate correspondence in relation to Part 2 of the appellant’s request on 5 May 2022, affirming the original decision. The internal review stated that the records at issue“do not meet the definitions of environmental information as outlined in Article 2 of the European Communities (Access to Information on the Environment) Regulations 2007.” Further, the internal review stated that even in the event that the information is found to be“environmental information” , access to the inspection records is also refused in accordance with article 8(a)(i) as the records at issue contain“personal information”.
9. The appellant appealed to this Office on 19 May 2022. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department of Agriculture, Food and the Marine. I have also examined the contents of the records at issue. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
• The judgments in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), Redmond & Anor v Commissioner for Environmental Information & Anor [2020] IECA 83 (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB No. 1), Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ) and Electricity Supply Board v Commissioner for Environmental Information [2024] IEHC 17 (ESB No. 2);
• The judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney) which is referenced in the decisions in Redmond, ESB No. 1, RTÉ and ESB No. 2;
• The decision of the UK Upper Tribunal in Department for Transport, DVSA and Porsche Cars GB Ltd v Information Commissioner and John Cieslik [2018] UKUT 127 (AAC) (Porsche);
• The decisions of the Court of Justice of the European Union in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig) and C-470/19 Friends of the Irish Environment Ltd v Commissioner for Environmental Information (Friends of the Irish Environment).
10. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
11. In accordance with article 12(5) of the AIE Regulations, the role of this Office in each case is to review the Department’s internal review decision and to affirm, annul or vary it.
12. Part 1 of the appellant’s request relates to“any information held in relation to any application for a Nitrates Derogation Licence in respect of this farm.” The Department has relied on article 8(a)(i) to refuse this Part of the appellant’s request. However, the information it has provided to this Office suggests no records are held by or for the Department in relation to this Part of the request. For this reason, I consider article 7(5) of the AIE Regulations is the most appropriate provision to consider in this regard.
13. The scope of this part of the review is therefore to determine whether the Department was justified in refusing access to the requested material under article 7(5) of the AIE regulations on the grounds that no information relevant to the request is held by the Department.
14. Part 2 of the appellant’s request relates to“All information held by the Department in relation to cross-compliance of the said farm with the requirements of the Basic Payment Scheme” . The Department has sought to withhold the relevant information identified on the basis that it is not“environmental information” in line with article 3(1) of the AIE Regulations.
15. The scope of Part 2 of the review is therefore to determine whether the Department was justified in withholding information on the basis that it is not “environmental information” in line with article 3(1) of the AIE Regulations.
16. In the event the information is found to be environmental information, the Department has sought to rely on article 8(a)(i) to withhold the information. The scope of my review therefore is also whether article 8(a)(i) applies to the information at issue.
17. The appellant has stated that he is not seeking any personal financial information, contact details (eg phone number/email address) or personal signatures that may be contained within the records at issue. I therefore find any information that falls within these categories is clearly out of scope and will not be considered as part of this decision.
Part 1 – “Any information held in relation to any application for a Nitrates Derogation License in respect of this farm”
18. The Department sought to rely on article 8(a)(i) of the AIE Regulations to justify refusal of Part 1 of the appellant’s request in its original and internal decision. However, upon examination of the issue and “records” referred to, I consider it more appropriate to conclude based on the evidence before me, that no information related to a Nitrates Derogation Licence for this farm is held by the Department. I will explain why this is the case.
19. In order for the exemption provided for under article 8(a)(i) to be relied on by a public authority to justify withholding information, information (usually in the form of a record) must have been identified in relation to the request. In this case, what the Department has referred to as“records” in its original decision, internal review and submission to this Office – is rather a screen shot of its internal database system showing searches it carried out that indicate no records have been found regarding a Nitrates Derogation licence for the farm in question.
20. It is my view therefore that, in respect of Part 1 of the appellant’s request, article 7(5) is the most appropriate provision for me to consider - as it 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”.
21. 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.
22. The Department demonstrated in submission to this Office that it conducted searches on two internal databases titled“Nitrates Derogation” and“Nitrates Derogation Scheme” . The first contains a memo stating it is the printout of the“DAFM Nitrates Derogation system” in place from 2014-2020, the other states it is a printout of the DAFM Nitrates Derogation system in use from 2021-2022. It has provided us with screen shots of these searches which indicate that no information regarding a Nitrates Derogation licence is contained within these databases in respect of the individual farm in question.
23. An investigator from this Office wrote to the appellant on 3 April 2024, explaining that searches had been conducted by the Department, indicating that no information was found that was relevant to Part 1 of the appellant’s request. The appellant responded with no additional information which would make me doubt the conclusion that the Department does not hold any information in relation to a Nitrates Derogation Licence for this farm.
24. On balance, I am satisfied that the Department took all reasonable steps to identify and locate the requested information relevant to the appellant’s request – and that no information in relation to Part 1 of the appellant’s request is held by the Department.
Part 2
25. Part 2 of the appellant’s request is for“all information held by the Department in relation to cross-compliance of the said farm with the requirements of the Basic Payment Scheme.”
26. The Department has identified a number of records which it says relate to this part of the appellant’s request – and it has set these out in its Schedule of Records. The Department’s position is that these records do not contain“environmental information” as defined by Article 2(1) of the AIE Directive. In order for me to determine if this is the case – I will first set out the relevant provision within the AIE Regulations.
27. Article 2(1) of the AIE Directive is transposed into Irish law by article 3(1) of the AIE Regulations which provides that:
“… ‘environmental information’ means any information in written, visual, aural, electronic or any other material form on—
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);”
Identification of a measure or activity
28. Paragraph (c) requires the identification of a relevant measure or activity, which the information sought is“on” . Information may be“on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB No. 1 at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term‘measure’ serves“merely to make it clear that the acts governed by the directive included all forms of administrative activity” (Mecklenburg at paragraph 20), and a similarly expansive approach should be taken to the term‘activity.’ (RTÉ at paragraph 19).
29. In my view, the relevant activity, within the meaning of article 3(1)(c) of the AIE Regulations, is the compliance of this farm with the cross-compliance requirements of the Basic Payment Scheme. I note the findings in Minch which included that"likely to affect" the environment in paragraph (c) should really be understood in the sense of being"capable of affecting” the environment.
Whether the measure or activity is affecting, or likely to affect or designed to protect the environment
30. A measure or activity is“likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. Collins J, delivering judgment on behalf of the Court of Appeal in Redmond, noted that“something more than a remote or theoretical possibility is required (because that would sweep too widely and could result in the “general and unlimited right of access” that Glawischnig indicates the AIE Directive was not intended to provide) but it is not necessary to establish the probability of a relevant environmental impact (because that would, in my opinion, sweep too narrowly and risk undermining the fundamental objectives of the AIE Directive)” (paragraph 63).
31. In this context, I consider that the activity in question – the compliance of this farm with the cross-compliance requirements of the Basic Payment Scheme, could be considered capable of impacting on the environment. I also consider this is an activity that is more broadly designed to protect the environment.
32. I say this bearing in mind the purpose of those cross-compliance requirements is to ensure the safe production of food, the welfare of animals, the sustainable use of land, the maintenance of natural resources and limiting climate change. Cross Compliance is the linkage of direct financial support (in this case the Basic Payment Scheme) to the observance of environmental and other law. According to the Department of Agriculture’s website, Cross Compliance introduced measures which 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.
33. The Department’s website states that 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 legislative requirements in environment, food safety, animal and plant health and animal welfare. The Department states the records at issue relate to cross-compliance inspections carried out in 2006 and 2018, and that these inspections were carried out for SMR 7 which relates to“Cattle Identification and Registration” . The aim of this specific SMR is to maintain the system for identification and registration of cattle and to facilitate cattle traceability. The Department’s position is that SMR 7 (the type of inspections the records at issue relate to)– are not“environmental measures” and that“Cross Compliance requirements are broader than just dealing with the environment.” The Department concludes that because of this“not all of these requirements fall within the definitions of environmental information as outlined in Article 2 of the European Communities (Access to Information on the Environment) Regulations 2007.”
34. I accept the Cross-Compliance requirements are broad, but this does not undermine my conclusion that the activity at issue - this farm’s compliance with the cross-compliance requirements of the Basic Payment Scheme– is both designed to protect the environment, and most likely capable of effecting the environment. As noted above, the Department of Agriculture on its own website describes the primary purpose of the requirements as being to ensure the safe production of food, the welfare of animals, the sustainable use of land, the maintenance of natural resources and limiting climate change. While the specific requirements may vary in terms of the extent to which they individually will affect the environment, I am satisfied that, at a minimum there is a real and substantial possibility that the cross compliance of this farm with the requirementsas a whole is likely to have a direct effect on the environment.
35. I do not accept the Department’s position that because the records identified in relation to this request are made up of documents produced as a result of inspections carried out for Cross Compliance Requirements Statutory Management Requirement 7 (Cattle Identification and Registration) – that they are not environmental information. The aim of this specific SMR is to maintain the system for identification and registration of cattle and to facilitate cattle traceability. The Department’s Explanatory Handbook states the importance of cattle traceability -“It is critical that traceability of cattle is maintained at the highest accuracy level.” I am persuaded that there is a real and substantial possibility that the compliance of this farm with that specific Cross Compliance SMR 7 requirement would likely be capable of effecting the environment –not least because the accuracy of cattle traceability impacts on emission calculations and disease control, amongst other things.
Whether the information is “on” the measure or activity
36. The final step to consider is whether the information requested by the appellant is information “on” the measure […] or the activity. RTÉ (paragraph 52) endorses the approach set out in Henney. The Court in Henney found that“information is ‘on’ a measure if it is about, relates to or concerns the measure in question.” It is not sufficient for information to be merely connected to the measure or activity, but the information need not to be specifically, directly or immediately about the measure or activity.
37. In support of this conclusion, Henney further suggests that, in determining whether information is“on” the relevant measure or activity, it may be relevant to consider the purpose of the information such as why it was produced, how important it is to that purpose, how it is to be used, and whether access to it advances the purposes of the Aarhus Convention and the AIE Directive (paragraph 43; see also ESB, paragraph 42). Information that does not advance the purposes of the Aarhus Convention and the AIE Directive may not be “on” the relevant measure or activity (Redmond, paragraph 99).
38. As the Court noted in Henney, the recitals of both the Aarhus Convention and the AIE Directive refer to the requirement that citizens have access to information to provide for a greater awareness of environmental matters, to enable more effective participation by the public in environmental decision-making and to facilitate the free exchange of views with the aim that all of this should lead, ultimately, to a better environment. Those recitals give an indication of how the very broad language of the text of the provisions in the Convention and Directive may have to be assessed and provide a framework for determining the question of whether information is on a particular measure. Finally, as the High Court noted in ESB information that is integral to a measure or activity is information “on” it while information that is too remote from the relevant measure or activity does not qualify as environmental information (ESB, paragraphs 38, 40, 41 and 43).
39. My reading of the guidance provided by the Courts in Henney, ESB and RTÉ is that there is a line with information that is environmental information on one side, and information that is not environmental information on the other. The question I must consider is where the line is drawn in this particular case. The example referred to in Henney noted that a report on PR and advertising strategy might be considered information “on” the Smart Meter Programme“because having access to information about how a development is to be promoted will enable more informed participation by the public in the programme”. However, information relating to a public authority’s procurement of canteen services in the department responsible for delivering a road project would likely be considered too remote (see paragraph 46).
40. I consider that the requested information is clearly information“on” the compliance of this farm with the Cross-Compliance requirements of the Basic Payment Scheme. Disclosure of this information in my opinion would provide the public with an awareness of this farm’s compliance with its legal and regulatory obligations under the Basic Payment Scheme and would lead to a greater awareness of environmental matters, facilitating a free exchange of views public participation– it would therefore advance the aims of the Aarhus Convention and AIE Directive.
41. Accordingly, I consider that the information sought is information “on” the cross compliance of this farm of the requirements of the Basic Payment Scheme, and is environmental information within the meaning of article 3(1)(c) of the AIE Regulations.
42. I have found the information at issue in Part 2 of the appellant’s request to be“environmental information” in line with article 3(1) of the AIE Regulations. The Department has also sought to rely on article 8(a)(i) to withhold the information at issue – specifically, all the records listed in the Schedule of Records for Part 2 of the appellant’s request.
43. The Department has sought to refuse access to all of the information concerned, regardless of its specific nature– rather than redacting the information which it considers to be“personal information” within the records. This is not an appropriate application of this exemption. I remind the Department of the requirements that exemptions provided for within the AIE Regulations should be applied restrictively. I also remind the Department of article 10 (5) which stipulates that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information. While, I couldannul this part of the decision of the Department on this basis, and order a fresh decision making process be carried out - based on the length of time since the original request was made and the specifics of the information, I will consider whether it is more appropriate to direct release of the information, having regard to the provisions of article 8(a)(i) and the public interest balancing test.
44. Within the records at issue, that are made up of documents from cross-compliance inspections conducted in relation to this farm, there is information that on the face of it can be considered personal information. This information includes the individual farmer’s name, address and herd number. They also contain ortho maps of the farm, and the names of the inspectors who carried out the inspections. The information identified as being relevant to the appellant’s request was provided to this Office by the Department, and set out in two separate Schedules. The first Schedule of records relates to a 2006 cross-compliance inspection and includes the Cross Compliance Inspection Report summary, Bovine Inspection, Detail Report Sheet, Animal location file, 2006 SPS application form, ortho maps and a cross-compliance report form. The second relates to a 2018 cross-compliance inspection and includes similar records as the ones listed above– along with some additional records specific to the 2006 inspection outcome.
45. 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.” I will consider whether the appropriate application of article 8(a)(i) can justify the refusal of any of the information contained within.
GDPR
46. Before going any further, I consider it appropriate to briefly set out the approach to personal data under the AIE Regime with reference to the GDPR. Article 8(a)(i) seeks to transpose Article 4(2)(f) of the AIE Directive, which enables Member States to provide for refusal of a request where disclosure would “adversely affect … the confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for by national or Community law” (my emphasis).
47. 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.”
48. 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.
49. 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).
50. 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.
51. 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.
52. 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.”
53. 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”.
54. 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.
55. 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.
56. 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).
57. 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.
58. 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.
59. 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).
60. 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.
61. As I have set out in detail I am satisfied the information requested by the appellant in this case is environmental information under article 3(1) of the AIE Regulations. I also consider the environmental information at issue, broadly includes personal data - including the farmer’s name, the address of the farm, and accompanying ortho maps relating to the farm. It also includes the farmer’s herd number – which is an administrative device, issued by the Department of Agriculture for the purposes of disease control. In this instance the herd number can be linked to the individual farmer in question, and I consider it to be personal information for the purposes of this decision. The records also contain the names of the inspectors who carried out the compliance inspections on this farm.
62. As I have set out previously, the appellant has explicitly said he is not requesting certain sensitive personal information such as financial information and signatures – meaning this information is out of scope of this request and will not form part of this assessment.
63. Regarding the issue of consent, the Department confirmed that it has not consulted with the farmer regarding this information request. Therefore, I do not think the data subject, the farmer in question, can be said to have consented to their information being released. Similarly, there is no indication the inspectors named on the inspection report records at issue consented to their personal information (names) being released.
64. 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. In respect of the individuals’ interests in the protection of their personal data in this case, I note the personal information in question does not fall under any of the special categories of personal data meriting higher protection (see Article 9, GDPR).
65. As I have set out above, although as a matter of principle a public authority must carry out the balancing exercise in Article 6(1)(f) first and again (if needed) under article 10(3) of the AIE Regulations, in practice it is unnecessary for me to go through the exercise twice because in this decision as the analysis is the same.
66. 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.
67. I also accept that there is a general interest in the disclosure of information regarding the compliance of those in receipt of the Basic Payment Scheme, with the cross-compliance requirements. As I have set out earlier in this decision, 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 this farm’s compliance or otherwise would support greater understanding and transparency in terms of how such inspections operate in practice. It would also provide assurance as to what inspections were carried out on this farm and when, as well as inform the public of any issues of non-compliance which could have the potential to impact on the local environment.
68. The disclosure of the records would, at a minimum, allow the public to know whether this farm has been subject to inspections in relation to the cross-compliance requirements – and if so, what part of the cross-compliance requirements such inspections related to, their outcomes and any remedial action taken.
69. In the wider context of this farm, I consider there to be considerable public interest in the release of the information at issue. I say this bearing in mind the appellant has provided a detailed submission that indicates questions over the compliance of this farm with the Nitrates Directive, which is part of the cross-compliance requirements of the Basic Payment Scheme, have been in the public domain for a number of years. To this end, the appellant highlighted that Wexford County Council served warning and enforcement notices in 2020 requiring the farmer to cease the unauthorised development of a milking parlour and restore the lands to their previous conditions. The farmer made a retention application, but it was refused on grounds including that he had not demonstrated there was sufficient effluent storage capacity on the site and it was not clear the development would comply with the Nitrates Directive which is aimed at protecting water from pollution from agricultural sources. I note that cross-compliance SMR1 relates to protection of water against pollution caused by nitrates – and the aim of this requirement is to reduce the pollution of waters caused by nitrates and phosphates occurring from agricultural land and farmyards. While the Department has stated that the subject matter of the inspections carried out was SMR 7 (cattle tagging), considering the concerns in the public domain with regards compliance of this farm more generally with the Nitrates Directive, I consider the public interest in the content of the cross compliance inspections to be considerable.
70. According to the “exploratory handbook for cross-compliance requirements” – cases selected for inspection are chosen by risk analysis, appropriate to that cross compliance measure, supplemented by a randomly selected component. As there has been public acknowledgement of an apparent risk factor related to this farm with regards compliance with the Nitrates Directive, I consider the release of the requested information would be in the public interest as it may shed light on what inspections, if any, were conducted and when, in relation to the cross-compliance requirements which include the protection of water against pollution caused by nitrates.
71. In the interests of refusing disclosure of the environmental information, I have more broadly considered the data subjects interest in the protection of his personal data, taking into account the nature of the specific personal data at issue and the data subject’s rights under Articles 7 and 8 of The Charter of Fundamental Rights of the European Union.
72. When considering the individual’s interest in the protection of his personal data, I have taken into account whether there is likely to be any adverse effect for the individual(s), if their data is released. The Department has identified no tangible adverse effects likely to arise from the release of the information at issue. An investigator from this Office wrote to the third party farmer in question to provide him an opportunity to provide us with details of any such concerns but no response was received. To my knowledge, there is no evidence to suggest that the disclosure of details such as name, address, herd number or ortho maps – contained in records relating to cross-compliance inspections (from 19 and 7 years ago respectively) would result in any negative consequences for the individual concerned. As the appellant has pointed out, a large amount of information in relation to this farm/farmer is already in the public domain. I have seen no evidence of the likelihood of an adverse effect that would outweigh public interest, as set out above, in the information at issue being disclosed.
73. Lastly, with regards the names of the inspectors who carried out the cross-compliance inspections on this farm - these were individuals working in a professional capacity, carrying out inspections in 2006 and 2018 respectively, on the cross-compliance requirements of the Basic Payment Scheme. According to the“Explanatory Handbook for Cross Compliance Requirements” – the Department of Agriculture, as the paying agency, undertakes the inspections, in association with the Department of the Environment, Community and Local Government (DECLG) and the Department of Arts, Heritage and the Gaeltacht who have primary responsibility for certain environmental requirements. It is therefore clearly the case that the inspectors named within these records were acting on behalf of the Department, to carry out the cross-compliance inspections required for this farm to avail of the Basic Payment Scheme. I do not consider there to be any risk of an adverse effect on these individuals if their names were released on records pertaining to historic inspections, as is the case here.
74. For the reasons set out above, and weighing those interests in the balance, I conclude that the public interest in releasing the information identified by the Department as being in scope of the request, outweighs the interests served by the refusal.
75. I will note that this decision should not be taken to mean that any request for access to information concerning an individual farmer will be granted. Each request should be considered on its individual facts, and the rights of the individual data subject must be carefully considered in the context of each case.
76. Having carried out a review under article 12(5) of the AIE Regulations, I vary Part 1 of the Department decision and find that no information in relation to the appellant’s request is held by or for the Department.
77. I annul Part 2 of the Department’s decision and find the information at issue is environmental information in line with article 2(1) of the AIE Directive, and direct release of the information in scope of the appellant’s request.
78. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Ger Deering
Commissioner for Environmental Information