An Taisce and the National Trust for Ireland and the Courts Service

• Case Number: CEI/15/0008
• Decision Date: 07 April 2016
• Issuer: The Courts Service
• Applied Rules: , European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

An Taisce and the National Trust for Ireland and the Courts Service

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0008

Published on 7 April 2016

Decision of the Commissioner for Environmental Information on an appeal made under article 12(5) of the European Communities (Access to Information on the Environment) Regulations 2007 to 2014 (the AIE Regulations)

Date of Decision: 7 April 2016

Appellant: An Taisce - the National Trust for Ireland

Public Authority: The Courts Service

Issue: Whether the Courts Service was justified in refusing an AIE request for information contained in the papers of a completed court case

Summary of Commissioner's Decision: The Commissioner found that refusal was justified because the Courts Service holds such information on behalf of the Courts in a judicial capacity while acting (in effect) as a servant of the Judiciary. When acting in that capacity the Courts Service is not a public authority within the meaning of article 3(1) the AIE Regulations. Accordingly, the Commissioner affirmed the Courts Service's decision.

Right of Appeal: A party to this appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision, as set out in article 13 of the AIE Regulations. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.

Background

On 24 February 2015, An Taisce - the National Trust for Ireland (an unincorporated association working to preserve and protect Ireland's natural and built heritage) submitted an AIE request to the Courts Service. The Courts Service was established by the Courts Service Act 1998. Section 5(b) of the 1998 Act establishes that it is a function of the Courts Service to provide support services for judges.

The request was for the following information:

A copy of the applicant's and respondent's papers in (the case of Kelly v An Bord Pleanála [2014] IEHC 400), to include the applicant's statement of grounds /affidavit/exhibits; the respondent's opposition papers/affidavits/exhibits; and the applicant's and respondent's written submissions.

As this was an AIE request, it ought to be understood as a request for any environmental information contained in those papers. The appellant was not a party to the proceedings.

The Courts Service replied on 27 February 2015, refusing the request on the basis that the Courts Service acts in a judicial capacity in holding such records on behalf of the High Court. For that reason, the Courts Service said that it is not, in this context, a public authority for the purposes of the AIE Regulations. The Courts Service suggested that it might be helpful for the appellant to read my predecessor's decision in the earlier AIE appeal case of Peter Sweetman and the Courts Service (case reference CEI/08/0005).

The appellant requested an internal review of the Courts Service's decision, arguing that the decision in CEI/08/0005 had "been overtaken by developments before the Court of Justice of the European Union" (CJEU), i.e. by the ruling in the case of Flachglas TorGau GmbH v Federal Republic of Germany (case C-204/09).

The Courts Service conducted an internal review, which affirmed the original decision. The appellant appealed to my Office on 27 March 2015, seeking a review.

Scope of Review

The issue in this review was whether the Courts Service was justified in refusing an AIE request for information contained in the papers of a completed court case because it holds such papers in a judicial capacity on behalf of the Courts, and it is not in that context a public authority within the meaning of the AIE Regulations.

As set out in my Office's "Procedures Manual" (available at www.ocei.ie), my practice in these circumstances is to seek to definitively resolve questions of this nature before addressing (if appropriate) the substantive issue of whether refusal might otherwise be justified under the terms of the AIE Regulations. Because the scope of review is limited, as described, I did not examine the requested records to see if they contain environmental information or consider whether refusal might be justified by any of the grounds provided in articles 8 or 9 of the AIE Regulations.

In conducting my review I took account of the submissions made by the appellant and by the Courts Service. I 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).

Relevant AIE Provisions

Article 2(2) of the AIE Directive provides that "Member States may provide that this definition [of 'public authority'] shall not include bodies or institutions when acting in a judicial or legislative capacity". I will refer to this as "the permitted exemption in the AIE Directive".

Article 3(2) of the AIE Regulations provides that: "notwithstanding anything in sub-article 3(1), 'public authority' does not include any body when acting in a judicial or legislative capacity". I will refer to this as "the exemption in the AIE Regulations".

The Appellant's Position

The appellant's position is that "this appeal raises a neat legal point, namely: whether the Courts Service can lawfully rely on article 2(2) of the AIE Directive and article 3(2) of the AIE Regulations to refuse an information request on the basis that it is not a public authority because it is acting on behalf of the Courts, which are acting in a judicial capacity, in circumstances where the legal proceedings to which the information relates have ended".

The appellant argued that the judgment of the CJEU in Flachglas TorGau GmbH v Federal Republic of Germany (C-204/09) (Flachglas) has "overtaken" the decision in CEI/08/0005 because "there is a direct read across" from the Flachglas judgment to the current request for access to court records where legal proceedings have ended. It submitted that it "can see no basis to distinguish the legislative exemption from the judicial exemption".

The Public Authority's Position

The Courts Service's position is that the decision in CEI/08/0003 properly reflects the legal position post-Flachglas. It denies that there is "a direct read across" from "the legislative process" considered in Flachglas to the circumstances of the court records in the current case. The Courts Service maintains that the judgment in Flachglas is "very strictly limited to the very particular circumstances and attributes of the legislative process", which (it says) are apparent from the wording of the judgment. It pointed to "the particular nature of the judicial process as distinct from the legislative process and the particular circumstances and requirements pertaining to documents lodged with a court in proceedings before it".

The Courts Service denied that it is within its power to make court papers available to persons other than the parties to proceedings, unless by permission of a court. It maintains that court records are held subject to section 65(3) of the Court Officers Act 1926, which provides that "all ... papers lodged in ... any court ... shall be held by or at the order and disposal of the judge or the senior of the judges by or before whom such suit or matter is heard". It cited the judgment by Finnegan J. in Minister for Justice v Information Commissioner [2001] IEHC 35, in which it was held that this provision created a "general prohibition on the disposal of documents but from which a judge can dispense: until there is such a dispensation there is a prohibition in place within the meaning of section 46(1)(a)(i)" [of the Freedom of Information Act 1997].

The Courts...