Minch v Commissioner for Environmental Information

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 28 July 2017
• Neutral Citation: [2017] IECA 223
• Date: 28 July 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 223 Record No. 2016/255

BETWEEN/

STEPHEN MINCH

RESPONDENT / APPELLANT

- AND -

COMMISSIONER FOR ENVIRONMENTAL INFORMATION

APPELLANT / RESPONDENT

- AND -

MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES

APPELLANT / NOTICE PARTY

[2017] IECA 223

Hogan J.

Peart J.

Irvine J.

Hogan J.

Neutral Citation Number: [2017] IECA 223

Record No. 2016/255

THE COURT OF APPEAL

Access to information – Environmental information – European Communities (Access to Information on the Environment) Regulations 2007– Respondent seeking access to a report prepared by the appellant – Whether the report amounted to “environmental information” within the meaning of Article 3 of the European Communities (Access to Information on the Environment) Regulations 2007

Facts: The appellant/respondent, Mr Minch, first applied to the notice party/appellant, the Minister for Communications, Energy and Natural Resources, on the 18th May 2013 pursuant to the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007) for access to a report prepared by the Minister entitled “Analysis of Options for Potential State Intervention in the Role out of Next-Generation Broadband”. The request was rejected by the Minister on the 17th July 2013 on the grounds that the information sought was not “environmental information” within the meaning of the 2007 Regulations. Mr Minch appealed to the respondent/appellant, the Commissioner for Environmental Information, by letter dated the 24th July 2013 and by decision dated the 15th December 2014 the Commissioner subsequently rejected the appeal on the same preliminary ground. Mr Minch then appealed to the High Court on a point of law pursuant to Article 13(1) of the 2007 Regulations. On the 16th February 2016, Baker J set aside the decision of the Commissioner. The Commissioner appealed to the Court of Appeal against the judgment of the High Court. The fundamental question presented in both the High Court and on appeal to the Court of Appeal was whether the Broadband Report amounted to “environmental information” within the meaning of Article 3 of the 2007 Regulations.

Held by Hogan J that while he agreed that the Broadband Report does not come within Article 3(1)(c) of the 2007 Regulations, he would nonetheless affirm the decision of the High Court to the effect that the Broadband Report amounted to information “on” an economic analysis or analyses used in the framework of a measure which itself affected or was likely to affect the environment, namely, in this instance, the National Broadband Plan; it follows, therefore, that the Broadband Report constitutes “environmental information” within the meaning of Article 3(1)(e) of the 2007 Regulations.

Hogan J held that he would dismiss the appeals of the Commissioner and the Minister. He proposed discussing with counsel the precise form of order required in the light of the delivery of his judgment.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 28th day of July 2017

1 This is an appeal taken by the Commissioner of Environmental Information (‘the Commissioner’) against the judgment of the High Court (Baker J.) delivered on 16th February 2016. In that judgment Baker J. set aside a decision of the Commissioner insofar as he had refused to direct the disclosure of a report prepared by the Minister for Communications, Energy and Natural Resources entitled ‘Analysis of Options for Potential State Intervention in the Role out of Next-Generation Broadband’ (‘the Broadband Report’): see Minch v. Commissioner of Environmental Information [2016] IEHC 91.

2 The fundamental question presented in both the High Court and on appeal to this Court was whether the Broadband Report amounted to ‘environmental information’ within the meaning of Article 3 of the European Communities (Access to Information on the Environment) Regulations 2007 ( S.I. No. 133 of 2007) (‘the 2007 Regulations’). The Commissioner concluded that it was not and, accordingly, the request was rejected in limine without the necessity for any further discussion as to whether even if it did, access to the document might be denied on other grounds contained in the 2007 Regulations. The fundamental question which came before the High Court and this Court was whether the report does come within the definition of environmental information within the meaning of the 2007 Regulations. If the answer to that question is in the affirmative, then the matter will have to be remitted to the Commissioner who will then have to proceed to consider whether, in the light of that decision, he should order release of the Report under the 2007 Regulations. If, conversely, the answer were to be in the negative, then it would follow that the Commission's decision rejecting the application essentially for want of jurisdiction would have to be upheld.

3 It will, of course, be necessary for this Court to examine in the course of this judgment both the terms of the 2007 Regulations and the Broadband Report in some greater detail. It is, however, first necessary to explain how this present appeal came about in the first place.

4 The appellant first applied to the Minister on the 18th May 2013 pursuant to the 2007 Regulations for access to the Broadband Report. The request for access to the Report was rejected by the Minister on the 17th July 2013 on the grounds that the information sought was not ‘environmental information’ within the meaning of the 2007 Regulations. The appellant appealed to the Commissioner by letter dated the 24th July 2013 and by decision dated the 15th December 2014 the Commissioner subsequently rejected the appeal on the same preliminary ground. Mr. Minch then appealed to the High Court on a point of law pursuant to Article 13(1) of the 2007 Regulations.

The Broadband Report

5 The Broadband Report was prepared by consultants, Analysis Mason, and it is described as an economic analysis of the various options available to Government to achieve generalised rollout of high speed broadband services within the State. The affidavit of David Hanley, sworn on behalf of the Minister for Communications, Energy and Natural Resources on the 6th March 2015, described the Report as follows:

‘…a financial and technical analysis was options for potential State intervention in the roll out of next generation broadband. The purpose of the report was to develop a financial model to calculate the likely capital expenditure associated with deploying next generation broadband under a number of different scenarios. The report contains no environmental information.’

6 It seems that the Report considered two particular options which were available to achieve the objectives of the National Broadband Plan (‘N.B.P.’) namely, whether broadband would be made available by a wireless or wired mode. It should be noted that the N.B.P. is itself freely available.

The relevant legislative background

7 The 2007 Regulations transpose the provisions of Directive 2003/4/EC (‘the 2003 Directive’) on public access to environmental information. The 2003 Directive was itself promulgated by the Union legislator following the signing by the European Community of the UN sponsored Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters (1998) (‘the Aarhus Convention’). Both the 2003 Directive – and, by extension, the 2007 Regulations – seek to give effect in law to one of the underlying objectives of the Aarhus Convention, namely, ensuring that the members of the public can have access to all relevant information concerning the environment in a timely fashion.

8 Given that effect has been given to this aspect of the Aarhus Convention by the Union legislator via the 2003 Directive, the 2007 Regulations constitute an EU legal obligation which this Court must uphold. Of course, very different consideration apply in respect of those features of the Aarhus Convention which have not been incorporated into EU law and the extent to which those obligations have been made part of domestic law independently of EU law is governed principally by reference to Article 29.6 of the Constitution and the legislation (if any) enacted by the Oireachtas for this purpose: see, e.g., McCoy v. Shillelagh Quarries Ltd. [2015] IECA 28 and Conway v. Ireland [2017] IESC 13.

9 Article 6 of the 2007 Regulations envisages that a request for environmental information will be made in the first place to the relevant public authority. Provision is further made under Article 12 for an appeal to the Commissioner for Environmental Information. Article 13(1) then provides an appeal to the High Court on a point of law of any decision of the Commissioner:

‘A party to an appeal under article 12 or any other person affected by the decision of the Commissioner may appeal to the High Court on a point of law from the decision.’

10 So much for the right of appeal. What is critical, however, is the definition of environmental information which is found in Article 3 of the 2007 Regulations. Article 3(1) provides as follows:

‘In these Regulations environmental information’ means 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,...