Friends of the Irish Environment Limited and The Courts Service

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0038
• Decision Date: 31 July 2017
• Issuer: The Courts Service
• Applied Rules: Art.3(1) Art.3(2), European Communities (Access to Information on the Environment) Regulations, 2007

Friends of the Irish Environment Limited and The Courts Service

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0038

Published on 31 July 2017

1. Background
2. Scope of Review
3. Decision
4. Appeal to the High Court

Background

On 9 July 2016 the appellant submitted an AIE request to the Courts Service seeking the following information:

a. The applicants', respondents' and notice parties' pleadings, affidavits/exhibits and written submissions as part of the proceedings before the High Court in Balz & Anor v An Bord Pleanála (High Court record no.2013/450 JR); and

b. The perfected orders (plain copy) arising from those proceedings.

The Courts Service replied on 13 July 2016 refusing the request on the ground that the scope of the AIE Regulations does not extend to cover court proceedings or legal documents filed in court proceedings.

On 18 July 2016 the appellant asked for an internal review of that decision.

The appellant appealed to my Office on 15 September 2016, saying that it had not received a response to its request for an internal review. The Courts Service said that "no internal review response issued ... due to an oversight".

Scope of Review

In most appeal cases, my role is to review the decision of a public authority on a request for access to environmental information. If I find that refusal was not justified for the reasons given, my role is to decide whether it would be appropriate for me to require the public authority to make environmental information available to the appellant.

In this case, a preliminary issue arises: whether the Courts Service is a 'public authority' within the meaning of article 3(1) of the AIE Regulations when it holds information of the type requested. Since my jurisdiction to review decisions extends only to the decisions of 'public authorities' within the meaning of article 3(1), I must determine this question as a preliminary issue.

In carrying out my task I took account of the submissions made by the appellant and 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; 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).

Preliminary Issue: Jurisdiction to review the Courts Service's decision.

The Courts Service submitted to my Office that it is "not a 'public authority' as defined under article 3(2) of the [AIE] Regulations".

Article 3(1) provides that:

'public authority' means, subject to sub-article (2) --

(a) government or other public administration, including public advisory bodies, at national, regional or local level,

(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment, and

(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b),

and includes --

(i) a Minister of the Government,

(ii) the Commissioners of Public Works in Ireland,

(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),

(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),

(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),

(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,

(vii) a company under the Companies Acts, in which all the shares are held --

(I) by or on behalf of a Minister of the Government,

(II) by directors appointed by a Minister of the Government,

(III) by a board or other body within the meaning of paragraph (vi), or

(IV) by a company to which subparagraphs (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information.

Article 3(2) provides that

"Notwithstanding anything in sub-article (1), "public authority" does not include any body when acting in a judicial or legislative capacity".

A reasonable approach therefore would be to first consider whether the Courts Service qualifies as a public authority under article 3(1) when article 3(2) does not apply and, if I find that it does, proceed to consider whether the effect of article 3(2) is that the Courts Service is not a public authority in the specific circumstance of this case.

In National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51 (NAMA) O'Donnell J. considered the significance of that part of the definition which follows the words "and includes", and concluded that "it was not here intended to operate as extending the meaning of the prior paragraphs", i.e. paragraphs (a), (b) and (c). I therefore began by considering whether the Courts Service is a public authority of type (a) when article 3(2) does not apply.

My predecessor found in case CEI/08/0005 that "there is no doubt that the Courts Service ... is a public authority when carrying out its administrative work". In considering the matter afresh, I took account of the following:

1. The definition provided in the AIE Regulations for this type of 'public authority' replicates the definition set out in article 2(2)(a) of the AIE Directive, which is: "government or other public administration, including public advisory bodies, at national, regional or local level".

2. In NAMA, O'Donnell J. relied, when interpreting the definition, on paragraph 51 of the judgment of the Court of Justice of the European Union in the case of Fish Legal and Emily Shirley v Information Commissioner and Others (C-279/12), which held:

"Entities which, organically, are administrative authorities, namely those which form part of the public administration or the executive of the State at whatever level, are public authorities for the purposes of article 2(2)(a) of Directive 2003/4. This first category includes all legal persons governed by public law which have been set up by the State and which it alone can decide to dissolve."

3. Applying this test, I am satisfied that the Courts Service is an administrative authority which forms part of the public administration of the State and that it is a legal person (set up by, and governed by, the Courts Service Act 1998) which only the State could dissolve.

I therefore find that the Courts Service...