Right to Know Clg v an Taoiseach

JurisdictionIreland
JudgeMr. Justice Meenan
Judgment Date28 February 2020
Neutral Citation[2020] IEHC 228
Docket Number[2018 No. 855 JR]
CourtHigh Court
Date28 February 2020

IN THE MATTER OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGULATIONS, 2007 - 2018

BETWEEN
RIGHT TO KNOW CLG
APPLICANT
AND
AN TAOISEACH

AND

MINISTER FOR COMMUNICATIONS, CLIMATE ACTION AND THE ENVIRONMENT, IRELAND

AND

ATTORNEY GENERAL
RESPONDENTS

[2020] IEHC 228

Meenan J.

[2018 No. 855 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Environmental information – European Communities (Access to Information on the Environment) Regulations 2007–2018 – Applicant seeking judicial review – Whether there was a factual basis for the judicial review proceedings to be initiated

Facts: The applicant, Right to Know CLG, maintained that the requirement in the European Communities (Access to Information on the Environment) Regulations, 2007–2018 (the AIE Regulations) that a person seeking environmental information shall: “state that the request is made under these Regulations” (Regulation 6(1)(b)) was unlawful, unconstitutional and incompatible with the terms of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 (the Directive). The factual basis for the application was an exchange of emails between the applicant and the first respondent, An Taoiseach. The applicant maintained that this response from the first respondent amounted to a refusal to provide the environmental information sought. By order of the High Court of 22 October 2018, the applicant was given leave to seek the following reliefs, inter alia, by way of judicial review: (1) an order of certiorari quashing the implied decision of the first respondent made in or about 7 September 2018, (the internal review decision) to refuse to carry out an internal review of the decision of 8 August 2018 (the initial decision) refusing to provide the information sought by the applicant on 3 August 2018 pursuant to the AIE Regulations; (2) a declaration that Article 6(1)(b) of the AIE Regulations imposes an obligation on a party making a request that is not permitted and/or required by the AIE Directive and, therefore, is contrary to the AIE Directive and, in particular, Article 3 thereof; (3) a declaration that Article 6(1)(b) of the AIE Regulations, insofar as it purports to transpose the AIE Directive, is invalid as it amounts to an unconstitutional and unlawful exercise of legislative power in breach of Article 15.2.1 of Bunreacht na hÉireann; and (4) further or other orders including, if necessary, a preliminary reference to the Court of Justice of the European Union pursuant to Article 267 of the Treaty on the Functioning of the European Union with regard to the proper interpretation of the AIE Directive, and, in particular, Article 3 thereof.

Held by Meenan J that he did not believe that there was a factual basis for these judicial review proceedings to be initiated. In looking at the terms of the emails exchanged, Meenan J noted that there was not a refusal to provide the environmental information sought; rather, a request was made by the respondents that the applicant identify the statutory basis for the application, a request that was necessary so that the application could be properly processed. Even if there was such a refusal, Meenan J was fully satisfied that Regulation 6(1)(b) of the AIE Regulations represented a lawful transposition of the Directive.

Meenan J held that he found no merit or substance in the application and that he would therefore refuse the reliefs sought.

Reliefs refused.

JUDGMENT of Mr. Justice Meenan delivered on the 28th day of February, 2020
Introduction
1

The applicant is a non-governmental organisation which was established as a company limited by guarantee. Its object is to improve, promote and advocate for increased rights of public access to information. It was incorporated on 24 July 2015 and is funded through voluntary donations from members of the public.

2

Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 provides for public access to environmental information (the Directive). Recital (1) of the Directive states: -

“Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.”

The Directive was transposed into Irish law by the European Communities (Access to Information on the Environment) Regulations, 2007 – 2018” (“the AIE Regulations”).

3

The AIE Regulations were considered, in detail, in Right to Know CLG v. An Taoiseach & Anor. [2018] IEHC 372. In that case the trial judge, Faherty J., identified a number of issues for consideration: -

“(a) Whether the respondents are 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, …

(c) …

(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. If so, whether in this regard the said provisions are inconsistent with the Directive …”

4

In giving her judgment, Faherty J. stated: -

“The fact of the matter is that the Directive, and the AIE Regulations, provide for a fundamental right of access to environmental information. If it is to be refused on the grounds permitted in the Directive, it must be justified via the processes set out in the Directive, as replicated in the AIE Regulations….”

5

However, the issue in the application before this Court is a good deal less complex than the issues faced by Faherty J.

6

The applicant maintains that the requirement in the AIE Regulations that a person seeking environmental information shall: “state that the request is made under these Regulations” (Regulation 6(1)(b)) is unlawful, unconstitutional and incompatible with the terms of the Directive. This does not appear to have been an issue raised before Faherty J. in the earlier Right to Know CLG case.

7

The factual basis for the application, which I will set out in detail later, was an exchange of emails between the applicant and the first named respondent. The applicant maintains that this response from the first named respondent amounted to a refusal to provide the environmental information sought.

Application for judicial review
8

By order of the High Court of 22 October 2018, the applicant was given leave to seek the following reliefs, inter alia, by way of judicial review: -

1. An order of certiorari quashing the implied decision of the first named respondent made in or about 7 September 2018, (the “internal review decision”) to refuse to carry out an internal review of the decision of 8 August 2018 (the “initial decision”) refusing to provide the information sought by the applicant on 3 August 2018 pursuant to the AIE Regulations;

2. A declaration that Article 6(1)(b) of the AIE Regulations imposes an obligation on a party making a request that is not permitted and/or required by the AIE Directive and, therefore, is contrary to the AIE Directive and, in particular, Article 3 thereof;

3. A declaration that Article 6(1)(b) of the AIE Regulations, insofar as it purports to transpose the AIE Directive, is invalid as it amounts to an unconstitutional and unlawful exercise of legislative power in breach of Article 15.2.1 of Bunreacht na hÉireann; and

4. Further or other orders including, if necessary, a preliminary reference to the Court of Justice of the European Union (“ CJEU”) pursuant to Article 267 of the Treaty on the Functioning of the European Union with regard to the proper interpretation of the AIE Directive, and, in particular, Article 3 thereof.

9

The first issue which I wish to address is whether or not there was, in fact, a refusal to provide the environmental...

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