Raidió Teilifís Éireann v The Commissioner for Environmental Information

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 20 December 2024
• Neutral Citation: [2024] IEHC 729
• Docket Number: [H.MCA.2024.0000054]

In the Matter of An Appeal Pursuant to Article 13 of the European Communities (Access to Information on the Environment) Regulations 2007–2014

Between

Raidió Teilifís Éireann

Appellant

and

The Commissioner for Environmental Information

Respondent

and

Right to Know CLG

Notice Party

[2024] IEHC 729

[H.MCA.2024.0000054]

THE HIGH COURT

PLANNING & ENVIRONMENT

Planning and environment – Access to information – Public authority – Appellant seeking an order setting aside a decision of the respondent made under Article 12(5) of the European Communities (Access to Information on the Environment) Regulations 2007-2018 – Whether the respondent mis-interpreted the definition of a public authority

Facts: The appellant, Raidió Teilifís Éireann (RTÉ), appealed to the High Court seeking the following reliefs: (1) an order setting aside a decision of the respondent, the Commissioner for Environmental Information (the Commissioner), made under Article 12(5) of the European Communities (Access to Information on the Environment) Regulations 2007-2018; (2) such declarations of the legal rights and/or legal position of RTÉ and/or persons similarly situated and/or the legal duties and/or legal position of the Commissioner as the Court shall consider appropriate; (3) such further or other order as the Court may deem fit; (4) if necessary, a declaration that ss. 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011, and/or the interpretative obligation set out in Case C-470/16 North East Pylon Pressure Campaign Ltd v An Bord Pleanála whereby in proceedings where the application of national environmental law is at issue, it is for the national court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention, apply to these proceedings; (5) an order for the costs of and incidental to the appeal. There were four core grounds of appeal.

Held by Humphreys J that: (i) the issue in core ground 1, of the extent, if any, to which RTÉ is a public authority, should be referred to the Court of Justice of the European Union (the CJEU); (ii) the issue in core ground 2, the claim that the Commissioner applied the wrong test as to environmental information, or failed to specify which sub-paragraph applied, or failed to give sufficient detail in reasoning, had not been made out by the appellant; (iii) the issue in core ground 3 of the alleged duty to create a new record, should also be referred to the CJEU; (iv) the issue in core ground 4 regarding manifest unreasonableness had not been made out by the appellant - where such an issue arises, and subject to any further argument on remittal in this case, a requestee should explore reasonable options to respond to the request that can be carried out without excessive difficulty and/or revert to the requester under art. 3(3) 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 AIE directive); (v) the procedural question of whether the requirement of expedition or timeliness required the Commissioner and/or the court to engage in fact-finding and evaluation to finalise the request, rather than remit it, in order to avoid a breach of those EU law requirements of timeliness and expedition, should also be referred to the CJEU; (vi) a decision by the court was not precluded by the fact that the Commissioner did not decide all issues in that regard, because this was agreed by all parties not be a factor preventing that, on the basis that that was not pleaded as a bar to dealing with the matter (agreed to by all parties) and additionally because the case was said to be distinguishable from Right to Know CLG v Commissioner for Environmental Information & Raheenleagh Power DAC [2024] IESC 7 (agreed to by opposing parties).

Humphreys J ordered that the identified questions be in principle referred to the CJEU under Article 267 TFEU.

Questions referred to CJEU.

JUDGMENT of Humphreys J. delivered on Friday the 20th day of December 2024

1 . How should the law balance the right of access to environmental information, which is particularly important in relation to the problem of false balance in media coverage of the climate emergency, with the right of public broadcasters to exercise their press freedom? The context is a dispute as to whether Raidió Teilifís Éireann ( RTÉ) is a public authority for the purpose 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 AIE directive). After disposing of the domestic points, all the issues are going to come down to ones of EU law, specifically the interpretation of art. 2 of the directive, and typically in such a situation, all sides appear to claim that the answers are acte clair in their respective favour. But in contrast to many situations, we have massive evidence that the matter is not acte clair in anybody's favour, for the simple reason that RTÉ have been able to survey practice across the EEA which show substantial divergence in approach, and indeed shows a majority of countries not applying the directive to their public broadcasters.

Judgment history

2 . While there is no previous litigation history regarding the matter at hand, there was a previous action between the parties concerning a different request, Right to Know CLG v. Commissioner for Environmental Information and RTÉ [2021] IEHC 353, [2021] 4 JIC 2008 (Unreported, High Court, Barrett J., 20th April 2020). In that case RTÉ did not make an issue of whether it was a public authority. That doesn't prevent it from disputing that here, as it does. The court there concluded inter alia that broadcasting and reporting on the issue of climate change was a measure and activity within the meaning of paragraph (c) of the definition of environmental information. It was also determined that climate change is a factor affecting or likely to affect the elements of the environment within the meaning of paragraph (b) of the definition of environmental information. If RTÉ is ultimately held to be a public authority, RTÉ doesn't dispute these matters for the purposes of the present judgment, without prejudice to their right to do so at some future stage.

Facts in relation to the status of RTÉ

3 . RTÉ is Ireland's public service broadcaster and is one of the oldest continuously operating public service broadcasters in the world. What is now RTÉ radio service began testing on 14th November 1925 – just short of 100 years ago, and regularly broadcasting on 1st January 1926, as 2RN. As Radio Éireann it was statutorily established by the Broadcasting Authority Act 1960. The name of Radio Éireann was changed to Radio Teilifís Éireann by s. 3 of the Broadcasting Authority ( Amendment) Act 1966. In its current iteration, its name was changed to Raidió Teilifís Éireann by s. 113 of the Broadcasting Act 2009, under which it stands established as a statutory corporation. RTÉ is established as a public service broadcaster to work within the parameters of the statute. All members of the board of RTÉ are appointed by the Government. RTÉ is required to report to the Minister for the Environment, Climate and Communications, the Oireachtas and the public as to the performance of its functions. It must have a statutory code of conduct and is subject to statutory disclosure of interests. It reports to Oireachtas committees and has many of the indicia of public law bodies guided by public law constraints.

4 . The principal objects and associated powers of RTÉ are in s. 114 of the 2009 Act. They include inter alia the establishment, maintenance and operation of a national television and sound broadcasting service, which shall have the character of a public service, be a free-to-air service and be made available, as far as is practicable, to the whole community on the island of Ireland. In pursuance of this, RTÉ is obliged to provide community, local or regional broadcasting services. RTÉ's objects under s. 114(1) also include the maintenance of a website in connection with its services, the establishment and maintenance of an orchestra, archives and libraries and to assist public bodies to disseminate information in the event of a major emergency. The legislative framework includes an obligation to provide news and programming in both the Irish and English languages as well as specific statutory obligations regarding its broadcast of news and current affairs content. RTÉ currently provides television and radio services as well as a non-linear/simulcast and on-demand service such as the “RTÉ Player”.

5 . RTÉ is dual-funded. Pursuant to s. 123(1) of the 2009 Act, the relevant Minister may pay to RTÉ out of monies provided by the Oireachtas in respect of each financial year after the passing of the Act an amount equal to the total of receipts in that year in respect of television licence fees, less expenses and payments to the Broadcasting Fund. RTÉ is also obliged to earn commercial revenue. Pursuant to s. 114(1)(j) of the 2009 Act, RTÉ is obliged to exploit commercial opportunities as may arise in pursuit of its public service objects.

6 . Section 98 of the 2009 Act provides that, “[s]ubject to the requirements of this Act, [RTÉ] shall be independent in the pursuance of its objects”. Further, the duties of the board, defined by s. 87 of the 2009 Act, include an obligation, at subparagraph (d), to “safeguard the independence of the corporation, as regards, the conception, content and production of programmes, the editing and presentation of news and current affairs programmes and the definition of programme schedules from State, political and commercial influences.”

7 . I accept the...