Friends of the Irish Environment v Commissioner for Environmental Information

JurisdictionIreland
Judgment Date21 May 2019
Neutral Citation[2019] IEHC 597
Date21 May 2019
Docket NumberRecord No 2017/298 MCA
CourtHigh Court

[2019] IEHC 597

THE HIGH COURT

Record No 2017/298 MCA

IN THE MATTER OF ORDER 84C OF THE RULES OF THE SUPERIOR COURTS AND REGULATION 13 OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGULATIONS 2007—2014

Between:
FRIENDS OF THE IRISH ENVIRONMENT
Appellant
-and-
COMMISSIONER FOR ENVIRONMENTAL INFORMATION
Respondent
-and-
THE COURTS SERVICE OF IRELAND
First Notice Party
-and-
KLAUS BALZ

AND

HANNA HEUBACH
Second Notice Party
-and-
AN BORD PLEANÁLA
Third Notice Party

Request for preliminary ruling – Judicial capacity – Court records – High Court requesting preliminary ruling – Whether court records are held by the first notice party in a “judicial capacity” after the making of final orders and exhaustion of any appeals in proceedings

Facts: The appellant, Friends of the Irish Environment, sought access to the records held by the first notice party, the Courts Service of Ireland, in relation to legal proceedings entitled Balz & Heubach v An Bord Pleanála 2013 450 JR ([2016] IEHC 134) in which judgment had been delivered by the High Court on 25 February 2016 and which had not been appealed. It was agreed by all parties to the main proceedings that control over the court file during the pendency of proceedings involved the exercise of “judicial capacity”. The only issue in dispute therefore was as to whether court records are held by the first notice party in a “judicial capacity” after the making of final orders and exhaustion of any appeals in proceedings.

Held by the High Court (O’Regan J) that, as far as could be established the question of the extent of the judicial capacity exemption provided for in Article 2(2) of the Directive had never been considered by the Court of Justice of the European Union (CJEU) or by the courts in any of the Member States. O’Regan J held that, in Case 283/81 CILFIT ECLI:EU:C:1982:335 terms, the correct application of EU law in this regard was not so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised was to be resolved. O’Regan J held that it was appropriate and necessary for the consistent interpretation of EU law, and in order to determine the main proceedings, that the input of the Court of Justice be sought in order to identify the scope of the “judicial capacity” exemption.

O’Regan J requested the CJEU to consider the following question by way of preliminary ruling in accordance with Article 267 of the Treaty on the Functioning of the European Union: is control of access to court records relating to proceedings in which final judgment has been delivered, the period for an appeal has expired and no appeal or further application is pending, but further applications in particular circumstances are possible, an exercise of “judicial capacity” within the meaning of Article 2(2) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC?

Question referred to the CJEU.

REQUEST FOR A PRELIMINARY RULING ARTICLE 267 TFEU

Decision of the High Court of Ireland to Request a Preliminary Ruling under Article 267 of the Treaty on the Functioning of the European Union, delivered on the 21st day of May, 2019

Request of the Hight Court for Preliminary Ruling Pursuant to Article 267 TFEU dated the 21st day of May, 2019

The following is the substantive text of the Request for Preliminary Ruling pursuant to Article 267 TFEU made by the High Court (O'Regan J.) on 21st May, 2019:

THE QUESTION REFERRED
1

The High Court of Ireland (Ms Justice O'Regan) hereby requests the Court of Justice of the European Union (‘the CJEU’) to consider the following question by way of preliminary ruling in accordance with Article 267 of the Treaty on the Functioning of the European Union (‘TFEU’):

Is control of access to court records relating to proceedings in which final judgment has been delivered, the period for an appeal has expired and no appeal or further application is pending, but further applications in particular circumstances are possible, an exercise of ‘ judicial capacity’ within the meaning of Article 2(2) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC?

THE SUBJECT MATTER OF THE DISPUTE AND THE RELEVANT
BACKGROUND FACTS
2

The proceedings concerned a request by the Appellant for access to the records held by the First Notice Party in relation to legal proceedings entitled ( 2013 450 JR Balz & Heubach v An Bord Pleanála [2016] IEHC 134) in which judgment had been delivered by the Irish High Court on 25 February 2016 and which has not been appealed.

3

On 9 July 2016, the Appellant wrote to the Central Office of the High Court and requested copies of the pleadings, affidavits/exhibits and written submissions as part of the proceedings before the High Court in the case, plus the perfected orders arising from the case. The request was made pursuant to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘ Aarhus Convention’), Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information (‘ the Directive’) and the European Communities (Access to Information on the Environment) Regulations 2007—2018 (the national Regulations implementing the Directive) (‘ the Regulations’).

4

On 13 July 2016, the Appellant received a reply to its request from the First Notice Party. The reply stated that having reviewed the Regulations, the First Notice Party was of the view that the Regulations did not extend to cover ‘ court proceedings or legal documents filed in Court proceedings’ and that ‘[d]ocuments filed in court proceedings are only accessible to the parties of the proceedings and their legal representatives’.

5

On 18 July 2016, the Appellant indicated to the First Notice Party that it wished to avail of its right to an internal review. The Appellant received no reply within one month as required by the Regulations. This was a deemed refusal for the purposes of the Regulations which entitled the Appellant to appeal to the Respondent.

6

The Appellant appealed to the Respondent by notice of appeal dated 15 September 2016. This notice of appeal was acknowledged by the Respondent on 16 September 2016.

7

The Respondent subsequently wrote to the Appellant on 19 June 2017, and indicated that a decision had been made by the Respondent in a similar case (Case CEI/15/0008 An Taisce & The Courts Service) (‘ An Taisce’). The Respondent, while emphasising that each case would be considered on its merits, requested that the Appellant identify any reason why the Respondent should arrive at a different decision in respect of the instant case.

8

The Appellant indicated in its reply of 26 July 2017 that it wished to adopt the reasons advanced in its notice of appeal and those made by An Taisce in the earlier case.

9

The Respondent made its decision on 31 July 2017.

10

The Respondent held that the First Notice Party holds the records requested, of concluded proceedings, while acting in a judicial capacity on behalf of the judiciary. The Respondent also stated that when acting in such a capacity, the First Notice Party was not a public authority within the meaning of Regulation 3(1) of the Regulations and that: ‘ Accordingly, the Commissioner found that he has no jurisdiction to review the Courts Service's decision on this AIE request’.

RELEVANT PROVISIONS OF NATIONAL LAW
I. Case law
11

In Minister for Justice v Information Commissioner [2001] 3 IR 43, in refusing access to documents under freedom of information legislation, Finnegan J. in the High Court held that the shorthand notes and transcript were records the disclosure of which to the general public was prohibited subject to an order of the Court and that the Court enjoyed a ‘ discretion … where appropriate to relieve from that prohibition’ (p 49).

12

In BPSG Limited t/a Stubbs Gazette v The Courts Service [2017] 2 IR 343, the High Court held (paragraph 67): ‘ That a judge must be independent in the exercise of judicial function has as a corollary an entitlement of an individual court to control its own procedures and processes’.

13

The Court in that case added that this principle was ‘ reflected’ in Section 65 of the Court Officers Act 1926 (‘ the 1926 Act’), which provides in relevant part as follows:

‘(1) Nothing in this Act shall prejudice or affect the control of any judge or justice over the conduct of the business of his court.

(3) All proofs and all other documents and papers lodged in or handed into any court in relation to or in the course of the hearing of any suit or matter shall be held by or at the order and disposal of the judge or the senior judge by or before whom such suit or matter is heard.’

14

The Court therefore concluded (paragraph 71) that a court officer could not release court records without an express order of the judge permitting such disclosure.

15

In Minister for Health v The Information Commissioner [2014] 2 IR 673, at issue were transcripts of interviews deposited with the Minister for Health by a retired judge arising from a non-statutory inquiry (not court proceedings) the judge had conducted into certain practices at a hospital (see paragraphs 3—4). The records had been deposited with the Minister for safekeeping, accompanied by a letter from the judge purporting to prohibiting their disclosure without the judge's consent.

16

It was observed by the High Court that the ‘ primary and essential characteristic of the review’ was that ‘ it was to be an exercise conducted in an entirely independent and impartial way’. It was added that ‘[i]ndependent in this context means independent of all...

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