Cinneadh
Mr. F and Forestry Appeals Committee
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-161526-F7Y3M4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-161526-F7Y3M4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the FAC was justified in redacting information on the basis of article 8(a)(i) and whether it carried out adequate and reasonable searches to identify information within scope of the request in accordance with article 7(5) of the AIE Regulations
1. On 13 June 2025, the appellant submitted a request to the FAC for the following:
“All information related to and which informed the Chairperson's Report for 2024.
To include;
a) drafts
b) relevant correspondence. internal and external (all media)
c) matters considered, but omitted
In particular, but not exclusively, this includes the following sections;
Litigation
Development of Forestry Appeals Committee Online Appeal System”
2. On 10 July 2025, the FAC issued its original decision together with a schedule of records, releasing all documents comprised in denominated Parts A and C and part-granting release of all documents in Part B on the basis of article 8(a)(i) of the AIE Regulations. On the same day, the appellant requested an internal review of the decision.
3. On 8 August 2025, the FAC issued its internal review decision, clarifying for the appellant certain matters he had raised in his internal review request and otherwise affirming the original decision.
4. On 15 August 2025, the appellant submitted an appeal to this Office with preliminary submissions.
5. I am directed by the Commissioner to undertake a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and by the FAC. In addition, I have had regard to:
i. the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations;
ii. Directive 2003/4/EC (the “AIE Directive”), upon which the AIE Regulations are based;
iii. 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
iv. the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the “Aarhus Guide”).
6. What follows does not comment or make findings on each and every argument advanced, but I have considered all materials submitted in the course of the investigation.
7. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority's internal review decision and to affirm, annul or vary it. The FAC, while releasing all information it submits is held by it within scope of the request, has redacted personal information from records in Part B of a collection of records denominated by it as Parts A, B and C. It has also submitted that all records within scope of the request have been identified and provided to the appellant, who has submitted his view that not all reasonable steps have been taken by the public authority to identify the requested information. Accordingly, the review of this appeal is to determine whether the FAC was justified (i) in relying on article 8(a)(i) of the Regulations to redact information from certain records and (ii) in refusing information on the basis that it has carried out adequate and reasonable searches for information in conformity with article 7(5) of the Regulations.
8. As a preliminary matter, however, I must mention that a review by the investigator assigned to this appeal of the seven email threads (the Part B records) identified as within scope of the request by FAC has revealed that, while the email addresses of seven FAC officers have been redacted in the email threads, in one of the threads, in the redacted version that was provided to the appellant, the email addresses of four of these officers have not been redacted and can be seen in full. Accordingly, I am satisfied that the information relating to these officers contained in these email addresses, as it is already in the possession of the appellant, remains outside the scope of this review, which will consider the redaction of the email addresses of the other three FAC officers.
9. This provision states that a public authority shall not make available environmental information where its release would adversely affect“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”.
10. The information that has been redacted by the FAC under this provision is the email addresses of FAC officers in email threads that have been part-granted to the appellant. I note the full names of these persons, however, have not been redacted and can clearly be seen on the record provided to the appellant and to this Office.
11. When relying on article 8(a)(i) of the AIE Regulations a public authority must show that: a) the information at issue is personal information relating to a natural person, who has not consented to its disclosure; b) the personal information has an element of confidentiality; c) the confidentiality of that personal information is protected by law; and d) the disclosure of the information at issue would adversely affect that confidentiality.
12. I have previously determined that “personal information” as used in the AIE Regulations corresponds with the definition of “personal data” in the (EU) General Data Protection Directive (GDPR). The latter term is defined in the GDPR as follows:
“’personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person”.
13. Therefore, it is clear that the redacted email addresses of the three FAC officers constitute ‘personal information’ for the purposes of the AIE Regulations, as their name and surname, that is, an ‘identifier’ as indicated above, falls within the meaning of ‘personal data’ in the GDPR.
14. It is appropriate to briefly set out the approach to personal data under the AIE Regime. I have set this out in detail in decisions OCE-135716-R4G8T1 and OCE-137000-X7Y9N3 .These decisions should be referred to for a more detailed analysis of the matter.
15. 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). 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.”
16. 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 152) 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.
17. 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 Court of Justice of the European Union (CJEU) has repeatedly confirmed that the legal bases for processing in Article 6 of the GDPR are an exhaustive list of the cases in which processing of personal data can be regarded as lawful ( Case C-252/21 Meta Platforms, at paragraph 90; Case C-26/22 SHUFA Holding, at paragraph 73).
18. 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.
19. 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), namely where it is“necessary for the purposes of the legitimate interests pursued by the controller or by a third party”.
20. 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”.
21. 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). Taking this into account, once a person has made a valid request for environmental information, I consider the first condition of the legitimate interest test is met.
22. 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.
23. As a result, in practice, it is the third condition of the legitimate interest test on which public authorities must focus most of their attention. The third condition requires“the balancing of the opposing rights and interests at issue” , depending on the specific circumstances of the particular case (see Case C-597/19 , at paragraph 111).
24. 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.
25. To summarise, once a public authority is satisfied of the following matters, the public authority may be satisfied that the requester has a “legitimate interest” in receiving the personal data pursuant to that request and that its disclosure is “necessary” to meet that interest: a) that an AIE request has been made, b) that the requested information is environmental information, c) that the environmental information is or includes personal data, and d) that the data subject has not consented to the disclosure of the personal data.
26. The public authority must then weigh the rights of the data subject against the public interest in the disclosure of the environmental information. In weighing that balance, the public authority should consider the specific interests at issue. As with any other exception to release under the AIE regime, if the public authority concludes that the balance falls against release of the personal data, it should go on to consider whether the personal data may be separated from the other environmental information at issue, for example by means of redaction (see Article 4(4) of the AIE Directive and article 10(5) of the AIE Regulations).
27. In this case, I am satisfied that a valid AIE request has been made (this is not in dispute), and that the requested information in environmental information. I also consider the environmental information at issue includes personal data. There is no evidence before me to suggest that data subjects have consented to the disclosure of their personal data.
28. To recap, the information at issue under article 8(a)(i) is a number of staff email addresses, and one private email address of a FAC official as they appear on the released email thread records.
29. Having determined the above matters, I am satisfied that the appellant in this case has a “legitimate interest” in receiving the personal data at issue pursuant to an AIE request and that its disclosure is “necessary” to meet that interest. I must go on and weigh the rights of the data subjects against the public interest in the disclosure of the environmental information. In respect of the data subjects’ interest in the protection of their personal data in this case, I note that the personal data at issue (work email addresses and a private email address) does not fall under any of the special categories of personal data meriting higher protection (see Article 9 of the GDPR).
30. In favour of withholding, I have considered the relevant parties’ interests in the protection of their personal data, taking into account the nature of the specific personal data at issue and the data subjects’ rights under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union. When considering the interests of the data subjects in the protection of their personal data, I have taken into account whether there is likely to be any adverse effect on them should their data be released. I am also mindful that the right to privacy has a constitutional dimension having been recognised as an unenumerated right under the Constitution, and of the strong protection afforded to privacy rights under Article 8 of the European Convention on Human Rights.
31. In favour of release, I consider that there is an important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive, in particular by contributing to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment, as set out in recital 1 to the AIE Directive and the rights in Articles 11 and 37 of the Charter of Fundamental Rights of the European Union. I note that the FAC has not advanced arguments as to how the release of the information within the records identified would lead to an adverse outcome. It has therefore failed to demonstrate how this essential element of the application of article 8(a)(i) has been fulfilled.
32. I consider that those of us working in the civil and public sector should identify ourselves, 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 work email addresses 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.
33. While the FAC has sought to withhold their email addresses, the full names of the individuals as they appear on the email records have in fact been released. Generally, an official work email address in a public sector organisation will follow a defined format and it will be possible to discern the email address from an individual’s name. In this context and in the absence of any specific reason put forth by the FAC as to how the release of this information would have an adverse effect on these individuals, I conclude that the public interest in releasing the work email addresses in the email thread outweighs the interests served by the refusal.
34. The final email address that the FAC seeks to withhold is a private email address of the Chairperson of the FAC, as it appears in the part-granted email records.
35. I note the observation of the appellant in his internal review request that“[t]he redaction of the email address of the Chairperson of a Statutory Committee is not personal information. I must presume that the Chairperson is not using a personal email address to conduct business on behalf of the Government.” It should be pointed out that the Commissioner has no role to play in commenting on how officials should choose to communicate.
36. In any event, I do not consider that a private email address can be considered on equal terms as a work email address. In this regard I have considered the nature of a private email address and consider it to be at the more sensitive end of the scale. Further, in these circumstances I consider that there is limited or no public interest in releasing the private email address, and none which outweigh the adverse effects on that individual of the release of their private email address. For these reasons I consider the FAC was justified in withholding this private email address under article 8(a)(i) of the AIE Regulations. I emphasise that I consider each case that comes before me on its particular facts.
37. As the FAC has refused to provide information other than that already released to the appellant, on the basis that this is the only information found to be within scope of the request following searches, it is necessary for me to consider whether it has complied with articles 7(1) and 7(5) of the AIE Regulations. Cumulatively, these articles require public authorities to make available to requesters any information on the environment relevant to their requests and, should they not hold such information, to inform requesters of this fact as soon as possible. In cases where public authorities assert that requested information does not exist or is not held by them, in ordinary course a prerequisite to show compliance with these articles is that they have carried out, and demonstrate they have carried out, adequate searches for the requested information.
38. The information provided to the appellant by the FAC was as follows:
• Drafts of the Chairperson’s Report
• Email threads with discussion of changes to be made to the text of the Chairperson’s Report
• The Final Version of the 2024 Chairperson’s Report
39. In his internal review request, the appellant expressed that he was“not satisfied that all information has been identified.” He added that“[a] Draft Report just appears with no origin. It appears to have been circulated but there is no information on how it was circulated and to whom. I was expecting that the Report would have been shared with the Members of the Committee but there is scant information in this regard. The details of the searches are too perfunctory.”
40. His appeal to this Office stated as follows:
“There is inadequate information on the searches undertaken.
“The IR [Internal Review] decision maker has not addresse[d] the content of my request for an internal review…
“The decision is one of assertion rather than evidence and reasoning.
“No details have been provided of who was contacted to search for records.
“No details of the searches have been provided.
“I am not satisfied that all reasonable steps have been taken to identify the requested information.”
41. In its original decision letter, the FAC decision-maker communicated to the appellant that, following“examination of material held by the FAC administration and the FAC committee I have identified a number of records that I consider to be relevant to your request.” These records were as listed at paragraph 38 above.
42. All information listed was granted in full, except for the seven email threads mentioned above, which carried redactions of email addresses. As well as two versions of the final Chairperson’s Report for 2024, one in pdf and one in Word format, ten incomplete draft copies of the report were provided to the appellant, corresponding to part a) of the request. In respect of the third category of information listed, the schedule of records which accompanied the original decision letter states that“matters considered, but omitted” , corresponding to part c) of the request, were“included in the drafts and email threads granted in items A (the draft reports) & B (the email threads)” .
43. The FAC has provided details of what appears to be two searches conducted by it for the requested information, details of which were provided to the appellant, respectively, in its original and internal review decision letters.
44. The first of these was conducted by the original decision-maker, who stated that the“only documents that have been identified” were those given in detail at paragraph 38 above. She added that“I do not consider that there is any further reasonable search that might be conducted in relation to your request.”
45. The second search was conducted by the internal review decision-maker who affirmed the original decision,“as no additional records were found.” He further stated that“I have conducted a thorough search of all physical and electronic records held by the FAC in relation to your AIE request using terms: Annual Report & Chairpersons Report.” He added that,“The only records located are those listed” before observing that“I am satisfied that no further reasonable steps remain to be taken in searching for additional documents relevant to your request.” His concluding remark in respect of relevant records identified and retrieved was that“no additional documents were found as part of this review.”
46. The investigator assigned to this appeal compared the Chairperson’s Report of 2024 with that of 2023 and discovered that, save for one or other minor change to the 2024 report compared to the version of 2023, the former is essentially a copy of the latter, with the only significant differences relating to statistics for the year and commentary relating to those differences. To this extent, it would not have been inappropriate for the FAC to have provided to the appellant, for ease of reference, a copy of the 2023 report as, apart from the differences mentioned, they are identical in format and content and the 2023 report has, without doubt, been the primary source to inform the content of the 2024 report. A review of the email threads show that they refer to minor changes contemplated and suggested to narratives in the 2024 report by FAC officers and the chairperson. The only substantial changes in the 2024 report, when compared to the 2023 report, are to statistics, such as the number of appeals received and resolved, and to relevant dates during 2024. I do note that a new subtitle and corresponding paragraph have been inserted into the 2024 report, which does not appear in that of 2023, namely ‘Development of Forestry Appeals Committee Online Appeal System’. This, as well as the paragraph titled ‘Litigation’ have been specifically mentioned by the appellant in his request. The short paragraph associated with the ‘online appeal system’ mentions that this“began at the end of 2024.” The ‘Litigation’ paragraph mentions one judicial review proceeding as having been taken against one of the FAC’s decisions in 2024. The brief narrative that accompanies each are purely factual statements that appear to be no more than information which the report’s authors seem to have considered necessary to include in the 2024 report. The report is not a policy or strategy document, rather it is a compendium of information on the work that the FAC carries out, with relevant statistics and associated commentary filling out the bulk of the report.
47. To this extent, I am satisfied that the information released to the appellant is a satisfactory response to his request and that the FAC has done all it can reasonably be expected to do in order to respond to the request. I say this in view of the two searches conducted by the FAC and the nature of the information that is contained in the 2024 report, which, except for the new insertions mentioned, is no more than statistically factual information updated to reflect the work carried out by the FAC in 2024 and information relating to its procedures, which to all intents and purposes have either not changed since release of the 2023 report or have been subject to only minor changes.
48. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner of Environmental Information, (i) I annul the decision of the FAC to redact work email addresses on the basis of article 8(a)(i) of the AIE Regulations and direct it to release this information in full; (ii) I affirm the FAC’s decision to withhold the private email address on the basis of article 8(a)(i); (iii) I affirm the FAC’s decision to refuse information under article 7(5) of the AIE Regulations.
49. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
__________________________
Gemma Farrell
On behalf of the Commissioner for Environmental Information