Right to Know CLG v Commissioner for Environmental Information
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 31 July 2020 |
| Neutral Citation | [2020] IEHC 392 |
| Docket Number | RECORD NO: 2018/119 MCA |
| Date | 31 July 2020 |
IN THE MATTER OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGULATIONS 2007-2014
AND IN THE MATTER OF AN APPEAL, PURSUANT TO ARTICLE 13 OF THOSE REGULATIONS
[2020] IEHC 392
Niamh Hyland
RECORD NO: 2018/119 MCA
THE HIGH COURT
In these proceedings Right to Know CLG (“the appellant”) seeks to appeal and set aside the decision of the Commissioner for Environmental Information (“the respondent”) of 13 February 2018 which affirmed the earlier decision of the Minister for Transport, Tourism and Sport (“the notice party”) to refuse access to certain information sought by it under the European Communities (Access to Information on the Environment) Regulations 2007 to 2018 (“the AIE Regulations”). By decision of 13 February 2018 (the “Decision”), the respondent determined that the information sought by the appellant (a submission from IBEC to the respondent and two associated documents) held by the notice party was not environmental information within the meaning of Article 3(1) of the AIE Regulations.
The AIE Regulations provide for the right to request access to environmental information, such right arising originally under Directive 90/313/EEC and now under Directive 2003/4/EC (“the 2003 Directive”). This appeal proceeds under Article 13 of the AIE Regulations which states:
“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”.
Environmental information is defined at regulation 3(l)(c) of the AIE Regulations as “any information in written, visual, aural, electronic or any other material form on …measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements”.
There are two broad issues in this case. First, a question arises as to whether the proceedings are moot as the appellant has since been provided with the documentation it originally sought by both the notice party and by a third party. Second, if they are not moot, then it is necessary to decide whether the information sought is environmental information within the meaning of Article 3(l)(c) of the AIE Regulations.
The appellant in its Notice of Motion of 10 April 2018 seeks an Order setting aside the respondent's Decision upholding the decision to refuse access, a Declaration that IBEC's submission is environmental information, an Order compelling the respondent to provide the appellant with reasons for refusal, an Order remitting the matter back to the respondent for consideration of exemptions to the right of access to environmental information (if necessary), a Declaration that the respondent order the notice party to release the IBEC submission (if necessary) as well as ancillary orders. Significantly, at the hearing of the action, counsel for the appellant accepted that the remittal order was no longer necessary given that the documents had now been provided.
By way of background, on 15 March 2017 the appellant made a request to the notice party seeking access to a submission made by the business and employer lobbying group IBEC under the AIE Regulations. In its request for information, the appellant referred to a specific entry on the Register of Lobbying maintained by the Standards in Public Office Commission and sought “the submission and minutes of the meeting” referred to in that entry. This request was refused by the notice party on 13 April 2017. The reasons given for this refusal were that the records held by the notice party were not “environmental information” within the meaning of the AIE Regulations, and that there were no minutes of a meeting between IBEC and the notice party. The appellant sought an internal review of this decision on 13 April 2017. No decision was made by the notice party within the statutory timeframe, resulting in a deemed refusal. The appellant appealed this refusal to the respondent on 22 May 2017. In its Decision of 13 February 2018, the respondent concluded that the information sought was not environmental information within the meaning of the Regulations.
By Notice of Motion of 10 April 2018, the appellant lodged an appeal to this Court against the Decision.
The documents, having been obtained in the circumstances set out below, are exhibits in this appeal and consist of three documents in total. The first, and most significant, is a single page submission made by IBEC comprising a bullet points entitled “Business priorities for ministerial handover brief”, described by the respondent as “akin to an agenda”. The second is a cover letter accompanying the one-page submission from Danny McCoy CEO of IBEC to Graham Doyle, Secretary General of the Department of Transport, Tourism and Sport dated 2 March 2016 (incorrectly describing the Department as the Department of Environment, Community and Local Government). These two documents are referred to as “the submission”. The third document is a subsequent letter of 9 March 2016 that corrects the description of the Department (“the letter”) and seeks to arrange a meeting between the respondent and IBEC.
On 24 April 2018, following correspondence, the appellant received the first of those documents from a journalist entitled “Business priorities for Ministerial handover brief”.
On 1 May 2018, the respondent contacted the appellant and indicated that in the interests of avoiding the incurring of legal time and costs, it had suggested to the notice party that it might consider releasing the records on what is described as a without prejudice basis. The notice party, having consulted with IBEC, provided the records to the appellant outside the scope of the AIE Regulations by letter of 15 May 2018. That exchange of correspondence is described in greater detail below.
Although it now has possession of the entirety of the documents covered by its request for access, the appellant wishes to maintain its appeal and indicates it will only withdraw the appeal if the decision of the respondent is set aside. The respondent stands over its Decision.
By its Decision, the respondent identified that the issue to be resolved was the connection of the requested information to the measures referenced in the requested information. Those measures included matters such as investment in transport infrastructure, upgrades to the Atlantic corridor, decarbonising transport, alternative fuel infrastructure, public transport, access to Dublin airport including Metro North. It concluded that the letter did not have a sufficient connection with the measures, and therefore was not satisfied that the letter was information on a measure or activity and was therefore not environmental information within the definition of regulation 3(l)(c). In respect of the submission, the respondent found in general that it was not the case that such information could not be capable of being environmental information; but in this case the submission did not contain or provide any substantive information on the measures referenced within.
In respect of mootness, the appellant disputes that the issues raised in these proceedings are moot, arguing there remains a live controversy between the parties as the respondent stands over its decision. Citing Murphy v. Roche [1987] I.R 106 and Goold v. Collins [2004] IEHC 38, the appellant accepts the principle to the effect that proceedings are moot when there is no longer any legal dispute between the parties and that the existence of a live controversy is required to be present to avoid parties seeking advisory opinions on abstract, hypothetical or academic questions of the law by requiring the existence of a live controversy to be present in order for the issue to be justiciable. It identifies the six-part test formulated by McKechnie J. in Lofinmakin v. Minister for Justice [2013] 4 I.R. 274 at paragraph 82 for identifying whether a case is moot (later applied in Godsil v. Ireland [2015] 4 I.R. 535).
The appellant contended in oral submissions that the appeal is not moot as the principle issue between the parties remains in dispute i.e. the characterisation of the documents as not containing environmental information, since this issue has not been conceded by the respondent. The appellant is concerned that this decision will be relied upon by the respondent in future appeals under Article 12 of the AIE Regulations and that, unless quashed, the Decision has precedential significance. Accordingly, the requirement of exceptional circumstances identified in the case law is met.
The appellant also submits that this appeal raises issues of a more general application having implications for requests pursuant to the AIE Regulations concerning information relating to lobbying on environmental matters. The appellant argues for a general public interest in the nature and objective of lobbying activities and for determining the scope of what might constitute a lobbying activity within the context of the AIE Regulations and/or the Directive.
Having regard to the fact that AIE Regulations implement the 2003 Directive, the appellant places heavy reliance upon the case law of the General Court and the CJEU in access to documents cases where the documents have been received in whole or part prior to the hearing.
Turning to the substantive issues in the case, the appellant argues that the...
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...Convention. Further, I refer to the following passage of Hyland J. in Right to Know CLG v. Commissioner for Environmental Information [2020] IEHC 392, in a similar context concerning the principle of effectiveness and EU law:- “78. I am not persuaded that the mere fact that a national proce......