Right to Know CLG v an Taoiseach

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 20 December 2024
• Neutral Citation: [2024] IEHC 713
• Docket Number: 2018 942 JR

In the Matter of the European Communities (Access to Information on the Environment) Regulations 2007 – 2018

And in the Matter of Directive 2003/4/EC on Public Access to Environmental Information

Between

Right to Know CLG

Applicant

and

An Taoiseach

Respondent

[2024] IEHC 713

2018 942 JR

THE HIGH COURT

JUDICIAL REVIEW

Request for access for records - questions arising from judicial review proceedings - whether a party is estopped from pursuing an issue previously determined - case remitted

Facts: The High Court refered this case to the Court of Justice to answer a number of questions. The Court of Justice delivered its ruling, and this judgment sought to apply that ruling to the circumstances of the case. The history of these proceedings started with a request for access to the relevant records pursuant to the EC (Access to Information on the Environment) Regulations 2007. The information requested was all documents showing cabinet discussions on Ireland's greenhouse gas emissions from 2002 to 2016. The application was refused on 10 June 2016, and Right to Know began judicial review proceedings to challenge that decsion. The applicant was partially successful in the first judicial review proceedings. A fresh decision on the 16 August 2018 granted partial access of seventeen records and withheld access to the remaining thirteen records. The applicant sought to challenge this decision.

There was a number of questions that arose from the judicial review proceedings. The principal question concerns the circumstances, if any, in which the constitutional imperative that discussions at Governmental meetings remain confidential must yield to the requirements of the Environmental Information Directive? The answer to this question relied heavily on how discussions at meeetings of the Government are characterised for the purposes of the European Directive. The parties were in disagreement as to whether the correct characterisation is "internal communications" of a public authority, or, alternatively, as the "proceedings" of a public authority. The anterior question which arose was whether the principle that a party is estopped from pursuing an issue previously determined against it is absolute, or whether, alternatively, the court retains discretion to allow an issue to be reagitated where it is in the interest of justice.

After considering the answer since provided by the Court of Justice, the Court found it was necessary to reach a conclusion on the question of whether the applicant was precluded by res judicata from regaitating the characterisation issue. The parties cited multiple casses inclduing Small v Governor of Bank of Ireland [2018] IECA 393 and Moffitt v Agricultural Credit Corporation [2007] IEHC 245. The Judge held for the following reasons; (i) a party seeking access to environmental information will generally be expected to exhaust the appeal process. (ii) the application of the0 correct legal test, as clarified by the Court of Justice; (iii) it would be premature for High Court to embark upon a consideration of these issues in the context of these judicial review proceedings.

Court held that an order of certiorari was to be made setting aside the decision of 16 August 2018. An ancillary order was to be made, pursuant to Order 84, rule 27, remitting the application for access to the records to the respondent for reconsideration.

Appearances

Noel Travers SC and David Browne SC for the applicant instructed by FP Logue LLP

Brian Kennedy SC and Aoife Carroll SC for the respondent instructed by the Chief State Solicitor

JUDGMENT of Mr. Justice Garrett Simons delivered on 20 December 2024

INTRODUCTION

1 For the reasons explained in an earlier judgment in these proceedings, the High Court referred a number of questions to the Court of Justice pursuant to Article 267 TFEU. The Court of Justice has since delivered its ruling. The present judgment seeks to apply that ruling to the circumstances of the case.

PROCEDURAL HISTORY

2 These proceedings have their genesis in a request for access to information on the environment made on behalf of the applicant on 8 March 2016. The request for access to the relevant records had been made pursuant to the EC (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007) (“ the domestic implementing regulations”). These regulations transpose the provisions of the Directive on Public Access to Environmental Information (Directive 2003/4/EC) (“ the Environmental Information Directive”).

3 The information which had been requested is as follows: all documents which show cabinet discussions on Ireland's greenhouse gas emissions from 2002 to 2016. This request had been refused, by an initial decision dated 5 May 2016; and, following an internal review, the refusal had been affirmed by a subsequent decision dated 10 June 2016.

4 The applicant instituted judicial review proceedings seeking to challenge the decision of 10 June 2016 (“ the first judicial review proceedings”). The applicant had been partially successful in the first judicial review proceedings. In a reserved judgment dated 1 June 2018, the High Court (Faherty J.) set aside the decision of 10 June 2016 and remitted the request for access to the respondent for reconsideration: Right to Know clg v. An Taoiseach [2018] IEHC 372, [2019] 3 I.R. 22.

5 A fresh decision was duly made on 16 August 2018 (“ the decision on remittal”). The decision on remittal was to the effect that access would be granted in respect of one record; partial access would be granted in respect of seventeen records; and access would be withheld in respect of the remaining thirteen records. Relevantly, part of the stated reasons for the decision on remittal included reference to cabinet discussions comprising the “ internal communications” of a public authority, and more generally, to the principle of cabinet confidentiality under domestic constitutional law.

6 The applicant seeks to challenge the decision on remittal in these judicial review proceedings (“ the second judicial review proceedings”). For the reasons explained in a reserved judgment, this court made a reference to the Court of Justice for a preliminary ruling: Right to Know CLG v. An Taoiseach [2021] IEHC 233 (“ the first judgment”). The Court of Justice has since delivered its ruling: Right to Know, Case C-84/22, EU:C:2023:910.

7 The parties were invited to make submissions on the implications of the Court of Justice's ruling for the outcome of these judicial review proceedings. The parties were both agreed that this should be dealt with by way of the exchange of written submissions and that an oral hearing was not necessary. In the event, a total of five sets of written submissions were filed. The last set was filed on 6 December 2024.

ENVIRONMENTAL INFORMATION DIRECTIVE

8 These judicial review proceedings give rise to significant questions of law in respect of the limits of cabinet confidentiality. The principal question for determination concerns the circumstances, if any, in which the constitutional imperative that discussions at meetings of the Government remain confidential must yield to the requirements of the Environmental Information Directive. The answer to this question turns, in large part, on how discussions at meetings of the Government are to be characterised for the purposes of the European Directive. Where convenient, I will refer to this principal question as the “ characterisation issue”. The rival positions of the parties have been summarised in the first judgment. In brief, the parties are in disagreement as to whether the correct characterisation is as “ internal communications” of a public authority, or, alternatively, as the “ proceedings” of a public authority. The significance of this distinction is as follows.

9 The Environmental Information Directive attaches a special status to information relating to emissions into the environment. The grounds upon which access to such information can be refused are narrower than those in respect of other types of information on the environment. This result is achieved by providing that certain exceptions to disclosure, which are otherwise available under the Environmental Information Directive, do not apply in the case of information relating to emissions into the environment. The applicant, in its written legal submissions, has used the shorthand “ the emissions override” to describe these provisions.

10 Relevantly, the emissions override operates to oust the exception otherwise applicable to the confidential “ proceedings” of a public authority. It follows, therefore, that were the applicant to be correct in its characterisation of meetings of the Government as the confidential “ proceedings” of a public authority, then disclosure would be mandatory insofar as the information relates to emissions into the environment, and the Government could not rely on the principle of cabinet confidentiality to refuse access to such information. Conversely, if the respondent is correct in characterising the meetings of the Government as the “ internal communications” of a public authority, then the emissions override would not apply.

11 The Court of Justice has explained, in its ruling on the preliminary reference, that a “ cumulative application” of the two exceptions is not possible. Rather, if the conditions for applying the more specific exception laid down in respect of the “ proceedings of public authorities” are in fact satisfied, then the application of that exception takes precedence over that of the exception relating to “ internal communications”, which is more general in scope.

12 The Court of Justice elaborated upon the distinction between the two categories as follows:

“Having regard to all the foregoing considerations, the answer to the first question is that Article 4 of Directive 2003/4 must be interpreted...