Electricity Supply Board v Commissioner for Environmental Information

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Regan
• Judgment Date: 03 April 2020
• Neutral Citation: [2020] IEHC 190
• Docket Number: [No. 2019/47 M.C.A.]
• Court: High Court
• Date: 03 April 2020

IN THE MATTER OF AN APPEAL PURSUANT TO ARTICLE 13 OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGULATIONS, 2007-2018

BETWEEN

ELECTRICITY SUPPLY BOARD

APPELLANT

AND

COMMISSIONER FOR ENVIRONMENTAL INFORMATION

RESPONDENT

AND

LAR MCKENNA

NOTICE PARTY

[2020] IEHC 190

O'Regan J.

[No. 2019/47 M.C.A.]

THE HIGH COURT

Access to information – Categories of documents – Environmental information – Appellant seeking to appeal from a decision of the respondent – Whether the manner in which the respondent determined that the transcript comprised environmental information was unlawful

Facts: The notice party, Mr McKenna, requested of the appellant, Electricity Supply Board, three categories of documents including the transcript of a hearing which took place on the 19th and 20th June, 2017, before Mr Good, property arbitrator, wherein there was an assessment of the compensation due and owing to relevant land owners under s. 53(3) of the Electricity Supply Act 1927, as amended. The relevant assessment of compensation was carried out pursuant to the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919. The transcript ran to 488 pages and was prepared by Gwen Malone Stenography Services for the appellant. The notice party’s request was dealt with in the first instance by Mr Smyth on behalf of the appellant, and by a decision of the 17th November, 2017, the request was refused. Following an internal review, by decision of the 11th January, 2018, Ms Sinnott on behalf of the appellant upheld the refusal on the basis that, although the transcript may contain some environmental information, same was captured by the exclusions within the European Communities (Access to Information on the Environment) Regulations 2007-2018. By appeal of the 20th January, 2018, the notice party appealed to the respondent, Commissioner for Environmental Information, under Article 12(3) of the Regulations. Although the appellant’s notice of motion comprised several grounds of appeal, in effect, there were three grounds, the first of which was subdivided into two categories, all of which were summarised as follows: (1) reference was made in the body of the decision of the respondent to acquisition of lands and the Compulsory Purchase Order (CPO) process and the appellant suggested that this was an incorrect description of the process undertaken by the respondent; (2) the notice party’s submissions were not furnished to the appellant in advance of the decision of the respondent, which submissions made reference to UK jurisprudence, which it was said the respondent relied on, the appellant was not notified that Article 7 of the Regulations would be deployed in the manner provided for in the decision, and it was suggested that reference to a possible inspection as being a solution to the opposing positions of the parties was only vaguely mentioned in an email of June, 2018 to the appellant, and the appellant suggested that this was insufficient advance notice of engagement with the possibility of inspection in the circumstances; (3) the finding of the respondent that the transcript contained environmental information was irrational and not supported by reasons or otherwise within the decision; and (4) it was suggested that the findings from pp. 12-14 of the decision were irrational in that there was a clear finding at p. 12 of the decision to the effect that the transcript was covered by copyright, that notwithstanding the public interest in disclosure, nevertheless, on a weighing exercise, the protection of the copyright outweighed the public interest element. Following such findings, the respondent then went on to direct access by means of making the transcript available for in situ viewing by the notice party. In the cover letter accompanying the decision it was indicated that the appellant was not obliged to make a copy of the transcript, and the notice party was not permitted to transcribe it.

Held by the High Court (O’Regan J) that the manner in which the respondent determined that the transcript comprised environmental information under Article 3(1)(c) of the Regulations was unlawful and, separately, decisions made at paras. 12-14 were irrational.

O’Regan J held that the appeal was successful.

Appeal allowed.

JUDGMENT of Ms. Justice O'Regan delivered on the 3rd day of April, 2020

1 The within matter comes before the Court on foot of a notice of motion of the 11th February, 2019, pursuant to O. 84 of the Rules of the Superior Courts and Article 13 of the Regulations mentioned in the title hereof (the Regulations). Article 13 aforesaid provides for an appeal on a point of law to the High Court from the decision of the respondent and in the instant matter the relevant decision is dated 13th December, 2018.

2 By a request of the 18th October, 2017, the within notice party requested of the applicant three categories of documents including the transcript of a hearing which took place on the 19th and 20th June, 2017, before Paul Good, property arbitrator, wherein there was an assessment of the compensation due and owing to relevant land owners under s. 53(3) of the Electricity Supply Act, 1927, as amended (the 1927 Act). The relevant assessment of compensation was carried out pursuant to the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919 (the 1919 Act). The transcript runs to 488 pages and was prepared by Gwen Malone Stenography Services (GMSS) for the appellant.

3 The notice party's request was dealt with in the first instance by Colm Smyth on behalf of the appellant, and by a decision of the 17th November, 2017, the request was refused. Following an internal review, by decision of the 11th January, 2018, Marie Sinnott on behalf of the appellant upheld the refusal on the basis that, although the transcript may contain some environmental information, same was captured by the exclusions within the Regulations. By appeal of the 20th January, 2018, the notice party appealed to the respondent under Article 12(3) of the Regulations.

4 The Regulations were brought into force in this jurisdiction to give effect to Directive 2003/4/EC of the 28th January, 2003, on Public Access to Environmental Information (the Directive).

5 Generally, by virtue of the Regulations and the Directive, public access to environmental information is to be construed broadly and should be considered the norm, with the exceptions applying to circumstances where those exceptions are construed narrowly. Recital 1 of the Directive makes reference to “access” and “dissemination” of information.

6 Although the notice of motion comprises several grounds of appeal, in effect, there are three grounds, the first of which is subdivided into two categories, all of which are summarised as follows:

(1) Reference is made in the body of the decision of the respondent to acquisition of lands and the Compulsory Purchase Order (CPO) process. The appellant suggests that this is an incorrect description of the process undertaken by the respondent;

(2) The notice party's submissions were not furnished to the appellant in advance of the decision of the respondent, which submissions made reference to UK jurisprudence, which it is said the respondent relied on. Furthermore, the appellant was not notified that Article 7 of the Regulations would be deployed in the manner provided for in the decision. Finally, under this heading, it is suggested that reference to a possible inspection as being a solution to the opposing positions of the parties was only vaguely mentioned in an email of June, 2018 to the appellant, and the appellant suggests that this was insufficient advance notice of engagement with the possibility of inspection in the circumstances;

(3) The finding of the respondent that the transcript contained environmental information is irrational and not supported by reasons or otherwise within the decision; and,

(4) Finally, it is suggested that the findings from pp. 12-14 of the decision are irrational in that there was a clear finding at p. 12 of the decision to the effect that the transcript was covered by copyright, that notwithstanding the public interest in disclosure, nevertheless, on a weighing exercise, the protection of the copyright outweighed the public interest element. Following such findings, the respondent then went on to direct access by means of making the transcript available for in situ viewing by the notice party. In the cover letter accompanying the decision it was indicated that the appellant was not obliged to make a copy of the transcript, and the notice party was not permitted to transcribe it.

7 In the respondent's points of objection of the 13th June, 2019, the respondent raises a robust defence to each and all of the grounds of appeal.

8 Insofar as the relevant applicable jurisprudence is concerned, the parties agree on the jurisprudence and indeed the applicable principles, however, disagree on the application thereof.

9 The only category surviving in respect of the three categories sought by the notice party in the initial request of the 18th October, 2007, relates to the disclosure of the transcript aforesaid.

10 Insofar as the Court's jurisdiction in respect of the within appeal is concerned, the parties agree that this is an appeal on a point of law. Following a decision of McKechnie J. in Deely v. Information Commissioner [2001] IEHC 91, the remit of the court is confined to setting aside findings of primary fact only if there is no evidence to support such findings, setting aside inferences from such findings of primary fact only if no reasonable decision-making body could draw the same inference, provided however, if such inferences are based on the interpretation of documents, these inferences can be reversed if incorrect, and conclusions reached based on an erroneous view of the law can be set aside,

11 The above...