Right to Know CLG v an Taoiseach

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 01 June 2018
• Neutral Citation: [2018] IEHC 372
• Docket Number: [2016 No. 697 J.R.],[2016 No. 697 JR]
• Court: High Court
• Date: 01 June 2018

BETWEEN

RIGHT TO KNOW CLG

APPLICANT

AND

AN TAOISEACH

AND

MINISTER FOR COMMUNICATIONS, CLIMATE ACTION AND ENVIRONMENT

RESPONDENTS

[2018] IEHC 372

[2016 No. 697 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Access to information on the environment – Certiorari – EU law – Applicant seeking certiorari of the first respondent's review decision – Whether the challenge to the review decision had been made out

Facts: The first respondent, An Taoiseach, refused the application of the applicant, Right to Know CLG, for access to "all documents which show cabinet discussions on Ireland's greenhouse gas emissions from 2002 to 2016". The request was made under the European Communities (Access to Information on the Environment) Regulations 2007–2014 and Directive 2003/4/EC on Public Access to Environmental Information. Pursuant to Article 11 of the AIE Regulations, the applicant sought an internal review of that decision, which was undertaken by Mr Shaw, Assistant Secretary in the first respondent's department. His decision, issued on 27th June, 2016, affirmed the original decision. By order of Fulham J dated 7th October, 2016, leave was granted to the applicant to seek relief by way of certiorari of the review decision together with a number of declaratory reliefs, including a declaration that the second respondent, the Minister for Communications, Climate Action and Environment, in transposing the Directive, was not permitted under EU law to exclude an entire class of documents from disclosure, and that the second respondent was not permitted under EU law to narrow the broad right to access documents relating to emissions into the environment contained in the last sentence of the second paragraph of Article 4(2) of the Directive. The following issues arose in the proceedings before the High Court: a. whether the respondents were seeking to rely on new legal grounds to justify the review decision-maker's refusal to disclose, which were not set out in the review decision or in the original decision; b. whether Government discussions are "internal communications" under Article 4(1)(e) of the Directive, as found by O'Neill J in An Taoiseach v Commissioner for Environmental Information and Gary Fitzgerald (High Court, June, 2010); c. whether An Taoiseach v Commissioner for Environmental Information was otherwise wrongly decided; d. whether the exemptions provided under the Articles 8(b) and 10(2) of the AIE Regulations impose a class based exemption to the right of access to environmental information, derived not from the Directive but from the constitutional protection for the confidentiality of discussions at Government meetings and, if so, whether in this regard the said provisions are inconsistent with the Directive; e. whether the review decision-maker acted in breach of the Directive and/or the AIE Regulations in failing to interpret any relevant exemption under the AIE Regulations in a restrictive way, taking into account the public interest served by the disclosure; f. whether the review decision-maker acted in breach of the Directive and/or the AIE Regulations in failing to weigh the public interest served by disclosure against the interest served by refusal on a case by case basis; g. whether the review decision-maker acted in breach of the Directive and/or the AIE Regulations in failing to consider granting partial access to the requested information; and h. whether the review decision-maker acted in breach of national and/or EU law in failing to give reasons or adequate reasons for his decision.

Held by Faherty J that, insofar as the review decision-maker relied on Article 8(b) of the AIE Regulations to refuse the requested information, that refusal was not in accordance with the letter or spirit of the Directive or indeed the AIE Regulations and the review decision could not thus be upheld. Faherty J held that, in all the circumstances, the applicant's challenge to the review decision on the grounds that it was not made in accordance with the State's EU law obligations was made out. Faherty J was also satisfied that the reasons ground had been made out.

Faherty J held that she would grant certiorari of the first respondent's review decision of 27th June, 2016, with the matter to be remitted for consideration in accordance with the State's EU obligations.

Certiorari granted.

JUDGMENT of Ms. Justice Faherty delivered on the 1st day of June, 2018

1 This matter comes before the Court arising from the first respondent's refusal of the applicant's application for access to 'all documents which show cabinet discussions on Ireland's greenhouse gas emissions from 2002 to 2016'.

2 The request was made under the European Communities (Access to Information on the Environment) Regulations, 2007 – 2014 ('the AIE Regulations') and Directive 2003/4/EC on Public Access to Environmental Information ('the Directive').

3 This request was replied to by letter of 5th May, 2016 from Ms. Maura Duffy on behalf of the first respondent, wherein the applicant was advised as follows:

'Following a search of Departmental files 31 records have been identified as being relevant to your request. The attached schedule provides a list of these records, however, having regard to the provisions of Articles 8(b) and 10(2) of the 2007 AIE Regulations which give effect to Cabinet confidentiality, I have decided to decline access to such documents. The decision of Mr. Justice O'Neill given in the High Court in June, 2010 ( An Taoiseach v. Commissioner for Environmental Information and Gary Fitzgerald) is also relevant to this request.'

4 Attached to the decision was a 'schedule of documents for AIE 2016/0001', which listed the 31 documents together with a brief description of same. All were 'withheld'. The basis for the refusal in respect of each document was 'AIE Regulation 8(b) and 10(2)'.

5 Pursuant to Article 11 of the AIE Regulations, the applicant sought an internal review of the decision on the following grounds:

1. That the decision was wrong in law in that it did not comply with the obligation under EU law to give primacy to EU law over national law.

2. That the Directive was directly effective in that it gave the applicant a right of access to the documents requested and no exemptions under the Directive applied or had been cited in the original decision.

3. The AIE Regulations clearly required a balancing exercise to be carried out in all circumstances which was not done.

4. That the High Court was wrong in An Taoiseach v. Commissioner for Environmental Information and the case must be disapplied.

5. No balancing test was carried out and such a test was required to be conducted by the review-decision-maker.

6 The internal review was undertaken by Mr. John Shaw, Assistant Secretary in the first respondent's department. His decision ('the review decision') issued on 27th June, 2016. In relevant part, it reads as follows:

'I refer to your request under the Access to Information on the Environment Regulations 2007 – 2014 for an Internal Review in relation to the decision sent to you on 5 May 2016. I confirm that I have reviewed [the] decision in this case and have affirmed the original decision not to release the records under the provisions of Articles 8(b) and 10(2) of the AIE Regulations which relate to the Constitutional protection for the confidentiality of discussions at meetings of the Government.'

7 The applicant was advised that it could appeal to the Commissioner for Environmental Information. The applicant did not appeal. Rather, the within proceedings issued on 7th September, 2016. By Order of Fulham J. dated 7th October, 2016, leave was granted to the applicant to seek relief by way of certiorari of the review decision together with a number of declaratory reliefs, including a declaration that the second respondent, in transposing the Directive, was not permitted under EU law to exclude an entire class of documents from disclosure, and that the second respondent was not permitted under EU law to narrow the broad right to access documents relating to emissions into the environment contained in the last sentence of the second paragraph of Article 4(2) of the Directive.

8 The grounds upon which the applicants rely are as follows:

• The review decision was made without lawful jurisdiction, is incompatible with EU law and should be quashed and remitted for the internal review requested by the applicant to be conducted in accordance with the State's EU law obligations.

• In relying on the constitutional protection of Cabinet confidentiality to overrule a right contained in directly effective provisions of the Directive, the first respondent is giving primacy to national law over EU law, in clear breach of the case law of the European Court of Justice (ECJ).

• The reasons given in the review decision, such as they are, merely state the conclusion of the review decision-maker, namely that the original decision has been upheld. The review decision fails to set out reasons for the decision, contrary to established principles of national and EU law. The dearth of reasons makes an effective review of the substance of the review decision, either by the court or the Commissioner for Environmental Information impossible. Furthermore, the review decision maker failed to engage with the applicant's detailed submissions. In the absence of any or any adequate reasons, it is not possible effectively to exercise the right of appeal to the Commissioner for Environmental Information as provided for in the AIE Regulations.

• The review decision is based on a fundamental error, namely that it was not open to the review decision-maker to disapply national law, which the first respondent appears to source in An Taoiseach v. Commissioner for Environmental Information [2013] 2 I.R. 510.

• The rights asserted by the applicant derive from EU law. The provisions of the Directive allow for refusal...