Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-157979-R9M5X6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing accessing to part A of the appeal on the basis of article 9(1)(c) and part B of the appeal on the basis of article 7(5).
25 September 2025
1. On 5 January 2025, the appellant made a request for information under the AIE Regulations, which sought:
“1) copy of the current DAFM tender for badger snaring, culling and vaccination under the bTB eradication strategy
2) copy of the bids for the current tender for badger snaring, culling and vaccination under the bTB eradication strategy
3) any reports to the DAFM from the current contractors operating the scheme for badger snaring, culling and vaccination under the bTB eradication strategy, since the award of the current tender”.
2. On 3 March 2025 the Department issued its original decision, which granted part 1 of the request but refused access to information sought in respect of part 2 and 3, relying on articles 9(1)(c) and 7(5) of the AIE Regulations.
3. With respect to part 2 of the request, the Department state that releasing the information is refused as it is confidential and commercially sensitive, contending that the records in question are otherwise protected by law under section 37(1) of the Freedom of Information Act (2014) making further reference to article 9(1)(c) of the AIE Regulations.
4. With respect to the public interest balancing test necessitated by articles 10(3) and 10(4) of the Regulations, the Department state:
“My deliberations have included weighing the public interest. The factors in favour of withholding this information, are not disclosing commercially sensitive records. I have decided that, on balance, the public interest in this case is best served by withholding this information”.
5. With respect to part 3 of the request, which sought reports to DAFM from the current contractors operating the scheme, DAFM cited its reliance on article 7(5) of the Regulations, stating:
“There are no records supplied by the current contractor, Farm Relief Services (FRS) to DAFM as FRS provide contracted staff to DAFM and it is DAFM staff that operate the programme using FRS staff. All reports etc are compiled by DAFM as DAFM are the repository for all the information from the wildlife programme”.
6. On 5 March 2025 the appellant made an internal review request of the decision, with respect to parts 2 and 3 of the request (referred to as parts A and B below).
7. On 1 April 2025, the Department issued its internal review decision which affirmed its original decision regarding parts A and B of the request, refusing access to the information sought, stating“I affirm his/her decision to refuse access to the records requested under article 8(a)(i) of the AIE Regulations”.
8. With respect to part A of the request, the Department state:
“…the information sought regarding the contents of the awarded tender is commercially sensitive and it would not be appropriate to release said information. The information in question is considered commercially sensitive and a public authority shall not release information which could be detrimental to the commercial interests of the company involved, where such confidentiality is provided for in national or community law to protect a legitimate economic interest”.
9. With respect to part B of the request, the Department state:
“The contractor does not provide reports to DAFM. DAFM manages the reporting system for the wildlife programme, as the contractor’s staff are overseen by DAFM. There are no reports from the contractor to issue and therefore it is not possible to supply the data requested”.
10. The appellant appealed to this Office on 3 April 2025.
11. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department of Agriculture, Food and the Marine. 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’).
12. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s decision and to affirm, annul or vary it. As such, this review is concerned with whether the Department was justified in its refusal of the information sought under articles 9(1)(c) and 7(5) of the AIE Regulations.
13. As part 1 of the original request was granted, this appeal concerns part 2 and 3, renamed ‘A and B’ by the appellant in the internal review request and referred to therefore in the decision as same.
14. There are a number of comments I wish to observe with respect to this appeal. The first is that the scope of the review excludes consideration of article 8(a)(i) as the appellant has confirmed that they are not seeking personal data/names. I am therefore satisfied that any names of employees of tenderer are outside the scope of the request. I would note for the record however, that the Department did not cite article 8(a)(i) in its original decision, and while it cites 8(a)(i) in its internal review decision, it does not name the law under which it considers the information is afforded its protection. I remind the Department that public authorities have a duty to give reasons for a decision, arising from the legal responsibility the public authority has under the AIE Regulations. It is also a recognised core principle in administrative law and a fundamental element of constitutional justice. A person having a request refused is entitled to be provided with clear reasons for that refusal so that they can form a view as to whether the refusal is justified, or whether a review of the refusal is warranted.
15. The original decision was issued outside of the one-month statutory timeframe. I remind the Department of its obligation to adhere to timeframes and procedures with respect to ‘action on request’ set out in the AIE Regulations.
16. With respect to part A of the appeal, the appellant confirmed to this Office that it is not seeking personal data/names within the tender, however with respect to the rest of the content states that“there may be elements of the bid that the bidder considers commercially sensitive, but those elements have to stand against the public interest in transparency with regard to agricultural environmental tenders”.
17. With respect to part B of the appeal, the appellant contends that it is ‘unlikely’ that the contractor has made no reports to DAFM on its performance of the tender, given its estimated annual financial worth.
18. The Department provided a brief initial submission with respect to the appeal, stating:
“With respect to the first element of the appeal, the information sought regarding the contents of the awarded tender is commercially sensitive and it would not be appropriate to release said information.
With respect to the second element of the appeal, the contractor does not provide reports to DAFM. DAFM manages the reporting system for the wildlife programme, as the contractor’s staff are overseen by DAFM. There are no reports from the contractor to issue and therefore it is not possible to supply the data requested”.
19. The Department confirmed to the Investigator that there was just one tenderer who responded to the call for tenders, so one record is in scope with respect to part A. In providing a copy of the tenderer’s Request for Tender (RFK) document to the OCEI, the Department note that the tenderer has identified that information within it is commercially sensitive, this is noted on page one of the document where it cites the Freedom of Information Act (Section 36), further stating that“no names should be disclosed for data protection reasons” and, with respect to the financial information“These files contain commercially sensitive pricing information which would be advantageous to competitors and suppliers, and prejudice the competitive position and commercial interests of (Company)”.
20. In correspondence with the Investigator during the course of the appeal, the Department assert that“in their response the successful tenderer set out that the content of their tender application was commercially sensitive, and the information therein would prejudice their commercial interests. Therefore, my understanding is this information is not to be released as the tenderer has highlighted it contains commercially sensitive information”.
21. The Department have relied on article 9(1)(c) of the Regulations to refuse access to the information sought with respect to the bids for the tender.
22. Article 9(1)(c) of the AIE Regulations permits a public authority to refuse to make environmental information available where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided in national or Community law to protect a legitimate economic interest. A number of elements are required in order to engage the exemption provided for in this article:
a. The information must be commercial or industrial in nature.
b. The confidentiality of the information must be provided for by law.
c. The confidentiality is protecting a legitimate economic interest.
d. The confidentiality would be adversely affected by disclosure
23. A necessary element of applying article 9(1)(c) is identifying the relevant national or community law which provides a basis for the confidentiality of the information sought. In identifying the relevant law, the Department state in its original decision“the records in question are otherwise protected by law under section 37(1) of the Freedom of Information Act (2014)” . I note that the internal review decision does not identify any specific law, making reference to article 8(a)(i) and stating that“the information is commercially sensitive and a public authority shall not release information which could be detrimental to the commercial interests of the company involved, where such confidentiality is provided for in national or community law to protect a legitimate economic interest”.
24. The protection of confidentiality of information under 9(1)(c) in the case where records may be afforded protection by a national or community law, is not absolute, and must be considered alongside the other elements of the article and in the context of article 10(3) and 10(4). While the Department has cited a legislative basis for the confidentiality claimed, it has failed to identify how the information itself is commercial or industrial in nature or to set out any specific potential adverse effect that release would have on that claimed commercial or industrial confidentiality in either its initial decision or its internal review decision.
25. The Department again failed to identify any specific potential adverse effect to the commercial or industrial confidentiality claimed when offered the opportunity to make submissions by this Office, apart from stating that as the tenderer had set out in the RFT document that the information was commercially sensitive and should not be shared, that this in turn meant the Department could not release it.
26. Section 2.16 of the RFT document, states:
“Tenderers should be aware that, under the Freedom of Information Act 2014 and the European Communities (Access to Information on the Environment) Regulations 2007 to 2014, information provided by them during this Competition may be liable to be disclosed.
Tenderers are asked to consider if any of the information supplied by them in their Tender should not be disclosed because of its confidentiality or commercial sensitivity. If Tenderers consider that certain information is not to be disclosed because of its confidentiality or commercial sensitivity, Tenderers must, when providing such information, clearly identify such information and specify the reasons for its confidentiality or commercial sensitivity. If Tenderers do not identify information as confidential or commercially sensitive, it is liable to be released in response to a request under the above legislation without further notice to or consultation with the Tenderer. The Contracting Authority will, where possible, consult with Tenderers about confidential or commercially sensitive information so identified before making a decision on a request received.”
27. While the tenderer noted in the RFT that it considered the information within was commercially sensitive, I do not consider that by stating same, as outlined in Section 2.16, a tenderer is automatically protected from the release of this information. This would be contrary to the full effective meaning of 9(1)(c). In my view, Section 2.16 informs prospective tenderers that information they provide may be released under the FOI/AIE regime and invites them to identify said information, it does not guarantee that by simply identifying information they consider commercially sensitive, this information will not be released.
28. Further while the Department asserts that the information is ‘Commercially sensitive’ it gives no detail in relation to which specific parts of the RFT that might have this quality. While I accept that prima facie a tender would expectedly contain commercially sensitive information, a necessary prerequisite to application of article 9(1)(c) is that information that is asserted to be covered by it, is sufficiently identified and specific. While the agreement may be commercial in nature, it does not follow that each and every part of it can be said to be commercially sensitive. While the tenderer notes in the RFT document that“These files contain commercially sensitive pricing information which would be advantageous to competitors and suppliers and prejudice the competitive position and commercial interests of (Company)” the Department have failed to identify which sections of the 235-page document this applies to and why. In my view, blanketly applying this contention to every page, without further explanation, is not sufficient in seeking to invoke 9(1)(c).
29. Accordingly, given all of the above, I am satisfied that the Department has not demonstrated that article 9(1)(c) has application to the information at issue in this appeal. I wish to further note that it is not sufficient that a public authority simply cite the article in order to allow it to rely on the exemption. Rather, as well as these steps, it must provide evidence, as set out by the CJEU at paragraph 69 of Land Baden-Wurttemberg of the specific and actual adverse effects that will result from the release of the information. I have also reviewed the contents of the relevant record. I note that the tenderer was the only company to bid for the tender in 2021 and has held this service ‘uninterrupted’ since the inception of the programme over 30 years ago. Given this, together with the fact that the information sought dates from 2021, I am not satisfied that there would be any adverse effect from the release of the information sought such that article 9(1)(c) might apply.
30. While it is not now necessary for me to perform the public interest balancing test as per article 10(3) and 10(4) as article 9(1)(c) has not been engaged, it is important for me to note that the Department have failed in this case to evidence its consideration of this test, despite its obligations regrading same. While it notes in its internal review decision that it has weighed the public interest served by disclosure against the interest served by refusal, it only notes factors in favour of withholding the information, that is that‘the factors in favour of withholding this information is not disclosing commercially sensitive information” . I consider that as the tenderer was the only company to bid for the tender in 2021 and has held this contract for such a significant period of time, there is a legitimate public interest in favour of release. The Department have not evidenced that this public interest, nor other factors in favour of release, were considered.
31. The Department state in its original and internal review decision that no information or records exist with respect to part B of the appeal, stating that:
“The contractor does not provide reports to DAFM. DAFM manages the reporting system for the wildlife programme, as the contractor’s staff are overseen by DAFM. There are no reports from the contractor to issue and therefore it is not possible to supply the data requested”.
32. Article 7(5) of the AIE Regulations is the relevant provision to consider, where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned. It provides as follows:
“Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it”.
33. What will be considered reasonable will vary from case to case, but as a general guide, I set out below the type of information that the Office would generally expect to be set out in a decision where a public authority is relying on article 7(5) of the regulations:
(i) an outline of exactly which areas/units etc. of the organisation were searched for the information;
(ii) an explanation of how searches were carried out (i.e. manually, by computer, by name, by key words). Keywords should be recorded and provided in the decision as appropriate;
(iii) details of the individuals consulted in connection with the search;
(iv) a description of the searches carried out to cover the possibility of misfiled/misplaced records;
(v) details of guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of information requested in this case;
(vi) the basis on which the public authority has concluded that it does not hold any information within the scope of the appellant’s request and that no such information is held by any other person or body on its behalf.
34. 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.
35. The appellant contends that it is ‘unlikely’ that the Department receives no reports from the contractor with respect to the scheme and this would appear to be a reasonable query in my view. I consider in this case, on the balance of probabilities, that the Department may be interpreting the scope of the request as narrower that it ought to be. That is, while it contends that“DAFM manages the reporting system for the wildlife programme, as the contractor’s staff are overseen by DAFM” it does not elaborate on the process of the reporting system nor the role of the contractor in same.
36. If we are to take the Department’s contentions as absolute, it would appear to mean that a wildlife programme such as this which undertakes daily activities on a national level never reports on said activities to its contracting body (the Department). I note in the RFT there is repeated reference to the requirements for operatives to contact the contracting authority in particularly circumstances relating to the operation of the programme, there is further reference to the provision of a ‘capture block worksheet’ and ‘vaccine worksheet’ provided to each operative by the Department’s local office.
37. In the course of this Investigation, on the request of the Investigator assigned, the Department sent quantitative data relating to badger captures over a period of four years. It is not the role of this Office to determine if this accounts for all of the information coming under the scope of the review however it would appear to underscore the view that records and/or information is held by the Department which the contractor has submitted, and which comes under the scope of the review.
38. As the Department have not provided further details within its internal review decision or submission to this Office on searches undertaken for information held by/for it in relation to this aspect of the appeal nor an explanation which may satisfy the queries outlined in paragraph 36, 37 and 38 I cannot be satisfied that all of the information falling within the scope of the review has been identified.
39. Accordingly, I find that the Department was not justified in refusing access to the information sought on the basis of article 7(5) of the Regulations.
Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision with respect to part A of the request and direct it to release this information. Any names of the staff of the tenderer are outside the scope of the request, and can be redacted. I annul the Departments decision with respect to part B of the request and direct it to undertake a fresh internal review decision.
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