Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-135822-W3R4Z6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified, under articles 9(1)(c) and 9(2)(c) of the AIE Regulations, in refusing access to certain environmental information
19 February 2026
1. On 25 January 2023, the appellant submitted a request to the Department seeking access to :
“[A] copy of the Shareholder Letter of Expectation issued to Coillte on 2 June 2022 (as noted by Matt Carthy TD on 24 January 2023 speaking in the Dail).”
2. On 3 February 2023, the Department issued its decision as set out below:
“[T]o part grant access to information on file I have identified one (1) record which relate to your request. I have decided to grant access to one (1) record with some information redacted by reason of Article 9(1)(c) whereby – a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect (c) commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest, and Article 9(2)(c) whereby - a public authority may refuse to make available environmental information where the request (c) concerns material in the course of completion, or unfinished documents or data […]
In arriving at a decision on your request, I confirm that I have had regard to the provisions of Article 10 of the Regulations, as a decision to refuse to disclose information under Articles 8 and/or 9 must not be taken in isolation from the relevant provisions in Article 10. Schedule of records. I have attached a schedule of records with this letter. This lists the records that I consider relevant to your request. It provides a brief description of each record and the decision I have made on each record. Where I have decided to partially refuse access to a record, it specifies the Article of the AIE Regulations under which this refusal has been made.“
3. On the same day, the appellant sought an internal review of the Department’s decision. On 23 February 2023, the Department issued its internal review decision, wherein it affirmed its original decision.
4. On 23 February 2023, the appellant submitted an appeal to this Office.
5. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the submissions made by the appellant and the Department and Coillte. I have also examined the contents of the record 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’).
6. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
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. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
8. This review is concerned with whether the Department was justified, under articles 9(1)(c) and 9(2)(c) of the AIE Regulations, in refusing access to certain information contained within a record found to be in scope of the appellant’s request for environmental information.
Article 9(1)(c)
9. Article 9(1)(c) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or European law to protect a legitimate economic interest. This provision seeks to transpose Article 4(2)(d) of the AIE Directive, which, in turn, is based on Article 4(4)(d) of the Aarhus Convention.
10. The Minister’s Guidance, in considering article 9(1)(c) of the AIE Regulations, states: “The fact that a person or company asks for information to be treated as confidential does not of itself establish it as such for the purpose of the Regulations, and the public authority must satisfy itself that real and substantial commercial interests are threatened. In addition, the fact that the release of information (for example, in relation to a pollution incident) might damage the reputation of a company is not of itself adequate reason for withholding it .” (paragraph 12.4).
11. When relying on article 9(1)(c) of the AIE Regulations, a public authority must show that the information at issue is commercial or industrial in nature; that the commercial or industrial information has an element of confidentiality; that the confidentiality of that commercial or industrial information is provided for in law to protect a legitimate economic interest; the confidentiality would be adversely affected by disclosure of the information at issue. In order to show that the confidentiality of the information is protecting a legitimate economic interest, it must be shown that the disclosure of the information would adversely affect that economic interest. The public authority must demonstrate a clear link between disclosure of the information that has actually been withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
12. I note that the Department has relied on article 9(1)(c) of the AIE Regulations to redact two paragraphs, numbered (iv) on page 3 and (vi) on page 4 contained within the Shareholder Letter of Expectation issued to Coillte on 2 June 2022. The remainder of the 14 page record it has released in full to the appellant.
Is the information at issue commercial or industrial in nature?
13. I am satisfied that the redacted information at issue is commercial or industrial in nature – in that it sets out the expectations of the shareholders in relation to the business.
Does that commercial / industrial information have an element of confidentiality? Is that confidentiality provided for in law to protect a legitimate economic interest(s)? Would that economic interest, and thereby its confidentiality, be adversely affected by disclosure of the information at issue?
14. In order to show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interest that the confidentiality is designed to protect. Accordingly, when relying on article 9(1)(c) the public authority must set out the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the economic interest identified. The risk of the economic interest being undermined must be reasonably foreseeable and not purely hypothetical (see by analogy, C-57/16 P ClientEarth v Commission, paragraph 51), A mere assertion of an expectation of harm is not sufficient.
15. The Department consider that article 9(1)(c) applies by reference to section 36(1)(b) of the FOI Act. Section 36(1)(b) provides that a record that contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, shall not be disclosed.
16. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of section 36(1)(b) is that disclosure “could reasonably be expected to result in material loss or gain”. This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker’s expectation is reasonable.
17. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is lower than the "could reasonably be expected " test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice ", the damage that could occur must be specified with a reasonable degree of clarity.
18. The Department submits that the redacted information relates to commercial information whose disclosure could reasonably be expected to result in a material financial loss to a third party and, additionally, could prejudice the competitive position of a named third party in the conduct of their business. I have had regard to the contents of the record at issue, and the submissions provided by both the Department and the third party. I must be careful not to disclosure any information which would reveal the contents of the information, therefore cannot detail the specific details – however I am satisfied by the information provided to this Office by both the Department and the third party, that disclosure of the redacted information could reasonably be expected to result in material loss to the third party, and could prejudice the competitive position of the third party.
19. Articles 9(1)(c) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(1) of the AIE Regulations, provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. I am satisfied that article 10(1) does not apply in this case. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides 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.
20. In considering the public interest served by disclosure, it is important to be mindful of the purpose of the AIE regime, as reflected in Recital 1 of the Preamble to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment .” The AIE regime thereby recognises a very strong public interest in openness and transparency in relation to environmental decision-making.
21. The AIE Regime also acknowledges that there may be exceptions to the general rule of disclosure of information, as noted in Recital 16 of the AIE Directive, which provides that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases .” One such case is in respect of commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.
22. The Department have considered the public interest balancing test and have stated “[we] have determined that the public interest would not be served by disclosing the information you request as to release information that is commercially sensitive, information under deliberation and information under negotiation is not in the public interest .”
23. I note that the Department has disclosed all 14 pages of the record, excluding 2 paragraphs. I find that this serves the public interest and creates transparency which allows the public to gain an understanding of the expectations of the shareholders as set out in this document.
24. The exception provided for in article 9(1)(c) of the AIE Regulations is designed to protect commercial confidentiality where such confidentiality is provided for in national or Community law to protect a legitimate economic interest. In the circumstances of this case, I am conscious that the disclosure of the redacted information would prejudice a third party’s competitive position, or would result in a material loss to a third party. This adverse impact on legitimate economic interests would outweigh the additional marginal benefit in disclosing the redacted information in the paragraphs at issue.
25. I have weighed the factors for and against disclosure. In light of the above and having examined the redacted information, I am of the view that the interest in refusal outweighs the public interest in disclosure. Accordingly, I find that the Department was justified under article 9(1)(c) in refusing access to the information at issue.
26. I have found that the Department was justified in refusing certain information under article 9(1)(c) of the AIE Regulations. Accordingly, it is not necessary on this occasion for me to consider whether the Department was justified in refusing the redacted information under article 9(2)(c) of the AIE Regulations.
27. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department’s decision to refuse access to certain information under article 9(1)(c) of the AIE Regulations.
28. 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.
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Gemma Farrell
On behalf of the Commissioner for Environmental Information