Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-125680-G2T6P4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the information requested is environmental information in accordance with the definition thereof in article 3(1) and whether the Central Bank was justified in refusing the information under articles 8(a)(i) and 9(1)(c) of the AIE Regulations
5 November 2025
1. On 14 May 2022, the appellant made the following request to the Central Bank:
“Under the AIE Regulations, please forward the names of the beneficial owners of the following ICAVs:
CWTC Multi Family ICAV
E to infinity ICAV
KW PRS ICAV
Davy Target Investments ICAV
The Davy Platform ICAV
KW Investment Fund ICAV
Hines Cherrywood Development Fund ICAV
“All of these ICAVs have made planning applications to An Bord Pleanála and are therefore involved in the development of land. The identity of the beneficial ownership of developers is environmental information because (a) the track record of a developer is a relevant factor in planning decisions; (b) planning is an area where there has been historic corruption so it is important to identify individuals who have an interest in development land and planning permissions to make sure that there are no conflicts of interest .”
2. ICAVs, or Irish Collective Asset-management Vehicles, are a form of investment fund. The Central Bank is responsible for the authorisation and supervision of investment funds established in Ireland. Under Article 30(3) of the EU Directive 2015/849 (the Fourth Anti-Money Laundering Directive (“4AMLD ”), which was transposed into Irish law by SI 110/2019) the Central Bank maintains a register known as the Beneficial Ownership Register of Certain Financial Vehicles (“BOR ”), which contains details of beneficial owners of ICAVs and certain other investment funds. According to a guidance booklet published by the Central Bank in June 2025, Beneficial Ownership Register of Certain Financial Vehicles, a beneficial owner is defined in article 3(6) of 4AMLD, as “any natural person(s) who ultimately owns or controls a legal entity, either through direct or indirect ownership of a sufficient percentage of the shares or voting rights or ownership interest in the entity, including through bearer shareholdings, or through control via other means ” (at page 10). It adds that the purpose of the BOR is to “deter Money Laundering…and Terrorist Financing…and to identify those that seek to hide their ownership and control of corporate or legal entities by ensuring that the ultimate owners/controllers of Irish Collective Asset-management Vehicles [and other certain entities] are identified, and that this information is readily accessible to law enforcement, regulators and [certain other] entities .” At the time of the appellant’s request, a separate procedure existed for members of the public who wished to access information on the BOR, further detail on which I will set out below.
3. On 31 May 2022, the Central Bank issued a decision on the request, which was to refuse the request on the basis that the decision-maker did “not believe the information requested is ‘environmental information’ as defined by Article 3(1) of the [AIE] Regulations .” It was suggested to the appellant that he should seek the information by submitting a request to the email address of the BOR, as per the procedure that was in place under the legislation that was referenced above.
4. On the same day, the appellant submitted an internal review request to the Central Bank.
5. On 28 June 2022, the Central Bank issued its decision on the internal review request, affirming the original decision on the same basis, namely that it did not consider that the information requested was “environmental information ” within the definition of this term in article 3(1) of the AIE Regulations.
6. On 29 June 2022, the appellant submitted an appeal to this Office.
7. During this review, both parties were provided with a draft decision and given the opportunity to comment. The Central Bank made two minor, clerical, observations which I have taken into account. No further submissions were received from the appellant.
8. 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 Central Bank. 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);
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the Aarhus Guide);
• EU Directive 2015/849 (the Fourth Anti-Money Laundering Directive (“ 4AMLD ”), as amended), specifically article 30(5) thereof; EU Directive 2018/843 (the Fifth Anti-Money Laundering Directive or “ 5AMLD ”, amending article 30 of 4AMLD), transposed into Irish law by Statutory Instrument No. 110 of 2019 ; EU Directive 2024/1640 (“ 6AMLD ”), amending article 30(5) of 4AMLD as a transitional measure, and ultimately repealing and replacing this directive from 10 July 2026 for some purposes and 10 July 2027 for the remainder; and Statutory Instrument No. 308 of 2023 , which provides for the current system of access for members of the public;
• the judgments of the Superior Courts in 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); Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ) and Traynor v Judge Delahunt & Ors [2008 IEHC 272 ] (Traynor); and Commissioner for Environmental Information v Coillte and People Over Wind [2023 IEHC 227 ](People Over Wind)
• the judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Cin 844 (Henney) which is referenced in the decisions in Redmond, ESB and RTÉ; and
• the decisions of the Court of Justice of the European Union in joint Cases C-37/20 and C-601/20 ; in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), and in C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig).
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. In accordance with article 12(5) of the AIE Regulations, the role of the Commissioner is to review a public authority’s internal review decision and to affirm, annul or vary it.
11. This review concerns (i) whether the information requested is environmental information within the definition of the term set out in article 3(1). If the information is found to be environmental information, I will consider whether the Central Bank was justified in relying on articles 8(a)(i) and/or 9(1)(c) to refuse that information.
12. At the time of the appellant’s request, there was a procedure in place to allow members of the public to request access to the information on the BOR. The Central Bank outlined the procedure it maintained for access as follows:
“In the period February 2021 to November 2022, members of the public could access the Beneficial Ownership Register of CFVs [the BOR] by way of a restricted access request as set out by Regulation 25 of S.I. 110 of 2019. A person requesting access was required to email bor@centralbank.ie setting out the :
* Name of the requestor; and
* Name of the relevant CFV.
One email was required per CFV and the reason for access was not required.
A PDF detailing the beneficial owners was returned to the requestor within two business days.”
13. The appellant sought to pursue his AIE request rather than making use of the above system, which led to the Central Bank issuing the decisions set out above.
14. On 22 November 2022, the CJEU issued a decision in joint cases C-37/20 and C-601/20 WM and Sovm SA V Luxembourg Business Registers (the Luxembourg Business Registers case) which found that the amendment of article 30(5) of 4AMLD by 5AMLD in 2018 to provide for access to the register of beneficial owners by members of the public was invalid. The CJEU found that the unrestricted access to specified information on the register for any member of the public did not demonstrate a proper balance between the objectives of the access regime and the fundamental rights enshrined in Article 7 (right to respect for private life) and Article 8 (right to the protection of personal data). It found that there were insufficient safeguards enabling data subjects to protect their personal data effectively against the risks of abuse.
15. Following the above ruling, the Central Bank suspended access to the BOR by members of the public, pending clarification of the legislative position by the Irish legislature. This was followed by the enactment of SI 308/2023 on 16 June 2023, which sought to implement the decision of the CJEU above. This statutory instrument provides that a person shall be entitled to access the BOR if they can demonstrate a “legitimate interest ”, which is defined as showing:
a. that the person is engaged in the prevention, detection or investigation of money laundering or terrorist financing offences,
b. that the person is seeking to inspect the information referred to in paragraph (3) for the purposes of an activity in which he or she is engaged as referred to in subparagraph (a) (but such activity need not necessarily relate to cases of pending administrative or legal proceedings in respect of the relevant entity concerned), and
c. that the relevant entity concerned –
i. is connected with persons convicted (whether in the State or elsewhere) of an offence consisting of money laundering or terrorist financing, or
ii. holds assets in a high-risk third country.
16. The 4AMLD is due to be repealed and replaced by the 6AMLD. This 2024 Directive will provide for a more extensive definition of what constitutes a legitimate interest, including reference to journalists and civil society organisations that are involved in the prevention and combating of money laundering, its predicate offences or terrorist financing. However, the 6AMLD has not yet been transposed by Ireland. While full transposition is not required until 10 July 2027, provisions enabling access to the register by those with an undefined ‘legitimate interest ’ were required to be transposed by 10 July 2025. Provisions enabling access to the register for those with a defined ‘legitimate interest’ are required to be transposed by 10 July 2026.
Is the information sought environmental information?
17. Article 3(1) of the Regulations defines “environmental information ” as “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).”
18. The AIE Regulations transpose the AIE Directive at national level and the definition of “environmental information ” in the Regulations mirrors that contained in the Directive. The AIE Directive was adopted to give effect to the first pillar of the Aarhus Convention in order to increase public access to environmental information and enable an informed public to participate more effectively in environmental decision-making.
19. According to national and EU case law on this matter, while the concept of “environmental information ” as defined in the AIE Directive is broad (Mecklenburg, paragraph 19), there must be more than a minimal connection with the environment (Glawischnig, paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond, paragraph 58, see also ESB, paragraph 43) [emphasis added]. However, a mere connection or link to the environment is not sufficient to bring information within the scope of the definition of environmental information. Otherwise, the scope would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU.
20. The right of access to environmental information encompasses access to information “on ” one or more of the six categories set out at (a) to (f) of the definition. In his decision in RTÉ, Barrett J expressly endorsed the approach set out by the Court of Appeal of England and Wales in Henney to determine the “information on” element of the definition of “environmental information” (RTÉ, paragraph 52). The first step is to identify the relevant element of the definition to which the information in question relates. First, however, I shall consider the submissions of the parties on this matter.
21. In both his request for an internal review and in submissions to this Office, the appellant has set out the reasons why, in his view, the information requested is environmental information, as follows:
a. As background, he states that his request is for the names of the beneficial owners of seven identified Irish Collective Asset-Management Vehicles (ICAVs) which were or are applicants for grants of planning permission to An Bord Pleanála for Strategic Housing Development (see further below). In an annex to his submissions he has attached a list of the seven ICAVs together with a reference number associated with each of the applications to An Bord Pleanála for ‘development consent’.
b. He contends that all “of these applications are for very large developments many of which will have significant effects on the environment.”
c. He states further that “the requested information is environmental information since it relates to the development of land, more specifically it identifies persons who are beneficial owners of ICAVs which have applied for planning permission for large housing developments.”
d. As not all ICAVS are concerned with the development of land, he goes on to assert that in “relation to ICAVs that are involved in the development of land, access to beneficial ownership information equally ensures transparency around the identities of persons involved in or with an interest in the development of land and who have a beneficial ownership in a legal person that may cause significant environmental effects from that development.”
e. He states that under planning law, the identity of a developer [of land] is a relevant factor to be taken into account and that the identity of developers generally is something that is required to be disclosed. He is of the view that the public should be able to check whether there is a relationship between an applicant [for development consent] or a person who has a beneficial interest in an applicant to verify whether there is a conflict or not. This is in the context, he submits, of the procedures which An Bord Pleanála maintains in order to avoid conflicts of interest between Board members and applicants. His position is that a person with a beneficial ownership of an applicant for development consent should not be entitled to “hide” that interest by using an ICAV to make an application.
f. He adds that the “track record of a developer is a relevant factor to be taken into account when a competent authority is handling a planning application (see section 35 of the Planning and Development Act 2000), therefore there is an interest in knowing the identities of the beneficial owners of a developer.”
g. He contends that “there has been historic corruption in the Irish planning system and even today [at the date of his submissions in July 2022] there are ongoing investigations into conflicts of interest of at least one member of An Bord Pleanála. To ensure transparency in the planning system it is important that the public have access to beneficial ownership information of developers so that any potential conflicts can be checked.”
h. The appellant contends that the above examples “show that the information sought is environmental information because it relates to land and the development of housing on land. Land and housing are elements of the environment and development is an activity affecting or likely to affect the environment.”
i. It is his view that “the requested information relates to these aspects of the environment based on a purposive interpretation since it enhances transparency and accountability in environmental decision-making and also facilitates public participation in planning decision-making.”
j. He makes the point that “access to the ICAV beneficial ownership register is [not] required generally under the AIE Regulations but only for those ICAVs that are developers.”
Summary of submissions – the Central Bank
22. The Central Bank’s internal review decision affirmed its first-instance decision and confirmed the latter’s determination that the information requested was not environmental information within the meaning of article 3(1). It further noted that “the information requested (the names of the beneficial owners of the named ICAVs) does not itself constitute information on any particular activity or any other information within the definition of ‘environmental information ’.”
23. In respect of the contentions of the appellant, the Central Bank stated in submissions to this Office that they do “not imply any basis apparent to us on which the information requested – the names of the beneficial owners of certain named ICAVs – may be deemed to be within the scope of the definition of ‘environmental information ’.”
24. The Central Bank submitted that if the requested information has not been provided by the named ICAVs to An Bord Pleanála for the purpose of its assessment of the associated planning applications, then “it must follow that the requested information has a minimal or incidental connection to the identified measures and is not integral to the identified measures .” It goes on to assert that, should I determine that the requested information is ‘environmental information’, “this implies that An Bord Pleanála does not have all information that is ‘on’ (or ‘about, relates to or concerns’ as per Henney) the identified measures .” It further asserts that such a determination would “imply that the beneficial ownership register holds information on measures such as the identified measures whenever a planning application is made by a relevant ICAV ” in circumstances where information on the BOR is provided to and held by the Central Bank “for unrelated purposes under EU law i.e. transparency purposes related to criminal concerns” as described at Recital 14 of the 4AMLD. The Central Bank is of the view that, as the information requested has a minimal or incidental connection to the identified measures, “it has not been substantiated that disclosure of the requested information would advance ‘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 ’” (AIE Directive, recital 1).
25. Finally, the Central Bank considers that a determination that the information requested is environmental information would create ambiguity “in assessing where the line should be drawn between information held on the [BOR], and other commercial or financial information held by a public authority in relation to a legal entity that has made a planning application .”
26. I consider that the part of the definition of environmental information relevant to this case to be paragraph (c) of article 3(1), which provides that information “on” the environment includes—
“(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 ”
27. 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).
28. As mentioned, the appellant has provided to this Office a list of the names of the ICAVs together with details of the developments planned by each. Each development has been the subject of an application for planning permission to An Bord Pleanála, in line with the streamlined procedure for the seeking of planning consent under the former Strategic Housing Development procedure.
29. Section 4(1) of the Planning and Development (Housing) and Residential Tenancies Act 2016 (the Act of 2016) provides for a direct application to An Bord Pleanála for the development of a category of housing denominated in the Act as “strategic housing development ” (SHD) which is defined at section 3 as the development of more than 100 houses on zoned land for residential use or the development of student accommodation units which, when combined, contain 200 or more bed spaces, on zoned land appropriate for student accommodation.
30. I consider that each of these proposals for development and the related applications to ABP constitutes a measure or activity within the meaning of article 3(1)(c) of the definition of environmental information.
31. I would caution against an excessively legalistic approach to the identification of the “correct ” measure. In my view, the Irish and European courts have not indicated that there is one clear and precise answer to the identification of a measure. Rather, the courts have indicated that the focus should be on whether the measure affects or is likely to affect the environment.
Whether the measure or activity affects or is likely to affect the environment
32. 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).
33. I consider that it is self-evident that proposals for developments of this scale are a measure or activity that affects or is likely to affect the environment within the meaning of article 3(1)(c) of the definition of environmental information.
33. Having regard to the wording of article 3 (1) (c) of the Regulations, I must now consider whether the information sought is information “on ” the relevant measure.
34. As “any information … on ” a measure or activity affecting or likely to affect the environment is prima facie environmental information, the information at issue does not, in itself, have to affect or be likely to affect the environment in order to constitute information “on ” such a measure (Redmond at paragraphs 57 and 59). As the High Court outlined in its decision in the ESB No. 1 case, relying on the English Court of Appeal decision in Henney, that information is “on ” a measure if it is about, relates to or concerns the measure (see paragraph 41 of ESB No. 1, referring to paragraph 37 in Henney). The question as to whether information is “on ” a measure is fact and context specific. This question is to be considered by reference to the Directive and Aarhus Convention. According to Henney, the recitals to both the Directive and Convention “give an indication of how the very broad language of the text of the provisions may have to be assessed and provide a framework for determining the question of whether in a particular case information can properly be described as "on" a given measure ” (at paragraph 48).
35. Importantly, while Henney uses the terms “critical ”, “fundamental ” or “integral ”, it did so to describe the relationship between the communications and data component of the smart meter plan and the overall smart meter plan. There was a dispute in that case between the parties as to what was the correct measure. The Court did not use these terms to say that for information to be on a measure it had to be critical, fundamental or integral to that measure.
36. While the test as to whether information constitutes environmental information is whether it relates to or is connected to a measure within the meaning of article 3(1) of the AIE Regulations, the information itself does not have to be capable of affecting the elements of the environment. In Redmond, the Court noted that in Minch a document that “in itself …. could obviously have no implications for the environment since it was concerned with financial modelling ” was nonetheless “environmental information ” for the purposes of the AIE Regulations. (paragraph 60)
37. As the High Court outlined in its decision in the ESB No. 1 case, relying on the English Court of Appeal decision in Henney, that information is “on ” a measure if it is about, relates to or concerns the measure (see paragraph 41 of ESB No. 1, referring to paragraph 37 in Henney).
38. The question of how information may relate to the aims and objectives of the Aarhus Convention is relevant to whether they constitute information “on ” the measure. I note the purposive test as articulated in Henney. The Court of Appeal in Redmond noted that the Court of Appeal of England and Wales in Henney 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 AIE Directive (see Redmond at paragraph 99). Information that does not advance the purposes of the Aarhus Convention and AIE Directive may not be “on ” the relevant measure or activity (Redmond at paragraph 99). The test set out in Henney was also explicitly endorsed by the High Court in the RTÉ case (see paragraph 52) and is also referenced in the recent ESB No. 2 judgment.
39. Further, as referenced in the Aarhus Implementation Guide, Article 7 of the Convention covers “public participation in the development of plans, programmes and policies relating to the environment, which include sectoral or land-use plans, environmental action plans, and environmental policies at all levels”. Recital 1 of the AIE Directive also makes clear, that the purpose of the AIE regime is to promote “increased public access to environmental information and the dissemination of such information ” in order to “contribute 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 .”
40. In the present case, the information sought is the names of beneficial owners of investment funds that have made applications for large scale developments to An Bord Pleanála.
41. The appellant states that that the “track record of a developer is a relevant factor to be taken into account when a competent authority is handling a planning application (see section 35 of the Planning and Development Act 2000), therefore there is an interest in knowing the identities of the beneficial owners of a developer .” While I do not agree that this provision applies to the beneficial owners of ICAVs, I accept in principle that the identity of a beneficial owner of an ICAV that is proposing to engage in development may be a relevant consideration for members of the public who wish to participate in the planning process. Due to this, I consider that the information sought advances the aims of the Aarhus Convention to enable more effective participation by the public in environmental decision making. I note that the matter of what information An Bord Pleanála requires in relation to a planning application is completely separate to whether the information sought comes within the definition of environmental information provided for in article 3(1)(c).
42. Considering the nature of the proposals for development in question, I consider that it simply cannot be said that the names of the beneficial owners of the ICAVs that are applying for planning permission have only a minimal or incidental connection to the development proposal in question. Beneficial owners could have an influence on high level decisions taken by the ICAV, depending on the extent of their ownership. Bearing in mind the case-law above which emphasises the expansive nature of the definition of environmental information, I consider that the information sought sufficiently relates to the relevant measures or activities (the applications to An Bord Pleanála) to bring it within the definition of environmental information.
43. As I have found that the information sought is environmental information, I will go on to consider whether the Central Bank is justified in refusing access to the information sought under articles 8(a)(i) or 9(1)(c) of the AIE Regulations.
34. Article 8(a)(i) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information 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 ”. This provision seeks to transpose Article 4(2)(f) of the AIE Directive, which in turn is based on Article 4(4)(f) of the Aarhus Convention and is subject to article 10 of the AIE Regulations, which requires a public authority to consider each request on an individual basis and to weigh the public interest served by disclosure against the public interest served by refusal, interpreting the grounds for refusal on a restrictive basis having regard to the public interest served by disclosure. It is to be noted that while article 8(a)(i) refers to “personal information ”, both the AIE Directive and the Aarhus Convention refer to “personal data ”. These latter statutes thereby align with the textual reference in the General Data
Protection Regulation (GDPR) [Regulation (EU) 2016/679 ] to the same term.
35. 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.
36. The information sought by the appellant is the names of the beneficial owners of the seven ICAVs listed in his request. I consider that it is self-evident that these names are personal information relating to natural persons and are therefore capable of coming within the exemption provided for in article 8(a)(i). Further, I have not been provided with any evidence that the data subjects have consented to the release of their names in this instance.
37. I have considered the legislative background relating to access to the BOR. The current transposing legislation in Ireland is SI 110/2019 (as amended by SI 308/2023), which restricts access to a limited category of persons who can establish a legitimate interest under those regulations. Such a person cannot access information on the BOR unless the person demonstrates to the Registrar (with evidence) that the person has a legitimate interest, which is tightly defined as meaning: (a) the person is engaged in the prevention, etc, of the relevant offences, (b) the person wants to inspect for that purpose, and (c) the body in question is either connected with persons convicted of the relevant offences or who holds assets in a high-risk third country. If those conditions are not satisfied, the Registrar must refuse inspection.
38. I am satisfied that the provisions of these Regulations place significant restrictions on access to the information sought by the appellant, and due to this, the confidentiality of the information sought is protected by law. That being the case, I consider that the disclosure of the information at issue in this appeal would clearly adversely affect that confidentiality.
39. Given the above, I consider that the information sought comes within the exemption provided for in article 8(a)(i) of the AIE Regulations and I will go on to consider the public interest test below.
40. Article 10(3) of the AIE Regulations requires the public authority to “weigh the public interest served by disclosure against the interest served by refusal”.
41. Examination of the public interest in this case involves the consideration of three separate European regimes, namely the AIE regime, the data protection regime and the anti-money laundering regime. The request for information was made, and my jurisdiction arises, under the AIE regime, whereas the confidentiality protection in respect of article 8(a)(i) derives from the data protection regime, as considered in the context of the anti-money laundering regime. In its judgment in the Luxembourg Business Registers case, the CJEU addressed the interaction between the latter two regimes, specifically the protection of privacy and personal data under Articles 7 and 8 of the Charter of Fundamental Rights and the provision in the 4AMLD (as amended by the 5AMLD) which enabled any member of the public to access information on beneficial ownership of legal entities. Such information constituted “at least the name, the month and year of birth and the country of residence and nationality of the beneficial owner as well as the nature and extent of the beneficial interest held ”. The CJEU found that the extent of the personal data that could be disclosed, as well as the potentially unlimited distribution of that information, meant that disclosure of information on beneficial ownership constituted a serious interference with fundamental rights. The CJEU recognised that the transparency of such information was an objective of general interest and “that, by providing for the general public’s access to information on beneficial ownership, the EU legislature seeks to prevent money laundering and terrorist financing by creating, by means of increased transparency, an environment less likely to be used for those purposes .” However, the CJEU considered that the provision enabling disclosure to all members of the general public, and not solely persons who have a legitimate interest in receiving it, was not appropriate, necessary and proportionate. The CJEU considered that providing access to members of the general public, beyond those with a legitimate interest, did not result in sufficiently increased benefit to the objective of combating money laundering to justify the serious interference with fundamental rights. It noted, in particular, that the information on beneficial ownership is available to all competent authorities and financial intelligence units without restriction.
42. In short, in the Luxembourg Business Registers case, the CJEU considered that the delicate balance that must be struck between the legitimate objectives of combating money laundering and terrorist financing, on the one hand, and protecting privacy and personal data, on the other hand, had not been properly struck by the Commission in the amendments made by the 5AMLD. As outlined above, an amended Directive (6AMLD) has now been enacted, which comes into force in phases between 10 July 2025 and 10 July 2027, and which aims to better balance these competing objectives. Under each of the anti-money laundering Directives, a competent authority is required in each Member State. In Ireland, that competent authority is the Central Bank.
43. The CJEU has not specifically considered the interaction between those two regimes and the AIE regime. However, the consistent case law of the CJEU has made clear that different European regimes must be applied in a manner compatible with each other and which enables a coherent application of them (see the Opinion of Advocate General Pitruzzella in the Luxembourg Business Registers case, at paragraph 66).
44. For example, case C-404/10 P, Commission v Éditions Odile Jacob concerned a request for access to documents from European institutions under Regulation (EC) No 1049/2001, which covers public access to documents of the European institutions. The documents related to merger control proceedings, which were governed by European legislation containing provisions dealing with confidentiality (Regulation (EC) No 4064/89, Regulation (EC) No 447/98 and Regulation (EC) No 139/2004). The CJEU accepted, in paragraphs 110-126 of its judgment, that a general presumption of confidentiality could be applied to documents in merger control proceedings, as the merger control legislation itself lays down strict rules as regards the treatment of information obtained or established in those proceedings. Without such a general presumption, the system introduced by the merger control legislation would be undermined. Such a general presumption does not exclude the possibility of demonstrating that a given document is not covered by that presumption or that there is a higher public interest justifying the disclosure of the document concerned under the public access regime. The CJEU has similarly recognised a general presumption of confidentiality of documents in relation to requests for access to documents governed by other European regimes (for example, C-139/07 P Commission v Technische Glaswerke Ilmenau; C 514/07 P, C 528/07 P and C 532/07 P Sweden and Others v API and Commission; C-365/12 P Commission v EnBW).
45. Taking account of the CJEU case law outlined above, it appears to me that the anti-money laundering regime creates a system that itself seeks to strike a balance between the public interest in transparency and private interests in confidentiality. In relation to the information on the BOR, the Central Bank is given responsibility for deciding in an individual case whether access to the information is justified. This gives rise to a weighty interest in the refusal of the information, as otherwise the system introduced by the anti-money laundering legislation would be undermined. Consistent with the approach of the CJEU in case C-404/10 P, Commission v Éditions Odile Jacob, I consider that a strong public interest in disclosure of the information at issue would be required in order to tip the balance in favour of disclosure under the AIE regime.
46. I have carefully considered the appellant’s submissions as to the specific information in this case. I note particularly that the information relates to proposals for large scale developments and the appellant’s submission that the release of this information would advance the aims and objectives of the Aarhus Convention as it would enable more effective participation in environmental decision-making by members of the public. I note the appellant’s submission, in which he states that in “relation to ICAVs that are involved in the development of land, access to beneficial ownership information equally ensures transparency around the identities of persons involved in or with an interest in the development of land and who have a beneficial ownership in a legal person that may cause significant environmental effects from that development .” I accept that there is a general public interest in the disclosure of information regarding persons who are involved in seeking planning permission for large scale developments, consistent with the objectives of the AIE regime, as set out in recital 1 to the AIE Directive. While this remains of importance, I do not consider that a general public interest in the transparency of this kind of information is sufficiently strong to tip the balance in favour of the disclosure of this information outside the context of the specific access regime established under the anti-money laundering legislation.
47. The appellant further submits that “there has been historic corruption in the Irish planning system and even today [at the date of his submissions in July 2022] there are ongoing investigations into conflicts of interest of at least one member of An Bord Pleanála. To ensure transparency in the planning system it is important that the public have access to beneficial ownership information of developers so that any potential conflicts can be checked .” It is important to note that my consideration relates only to access to this information through the AIE regime. The EU has recognised, through the recitals to the AIE Directive, that increased public access to environmental information contributes 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. It is not a specific aim of the AIE regime to identify potential criminality in an environmental context (albeit of course the detection of crime in the environmental context is in the public interest). By contrast, the regime for access to information on beneficial ownership under the anti-money laundering directives is specifically directed at the identification of potential criminality, which could include in the environmental context. Both the recitals to the relevant Directives, and the judgment of the CJEU in the Luxembourg Business Registers case, recognise the contribution of members of the public to identifying criminality, but such persons are not the only source. I note in particular that investigatory authorities such as An Garda Siochána, FIU Ireland, the Revenue Commissioners and the Criminal Assets Bureau have unrestricted access to the full contents of the BOR (see regulation 24 of the 2019 Regulations). Taking this into account, I am not satisfied that disclosure of the information under the AIE regime would accrue such a benefit to the general public interest through the exposure of corruption that it would outweigh the interest in maintaining the exemption.
48. Finally, the Central Bank has provided me with access to the information requested and I have considered its contents. I am limited in what I can say about the content of the requested information, but I do not consider that the information gives rise to a strong public interest in its disclosure.
49. Accordingly, I consider that the interest in refusal outweighs the public interest in disclosure, in respect of the information at issue in this case.
50. Having carried out a review under article 12(5) of the AIE Regulations, I find that the information sought is exempt from release under article 8(a)(i) of the AIE Regulations and I affirm the Central Bank’s decision to refuse access to the information sought. As I have found that the information sought is exempt from release under article 8(a)(i) of the AIE Regulations, I do not consider it necessary to consider the application of article 9(1)(c).
51. 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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Ger Deering
Commissioner for Environmental Information