Right to Know Clg v an Taoiseach

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 23 April 2021
• Neutral Citation: [2021] IEHC 233
• Docket Number: 2018 No. 942 J.R.
• Court: High Court
• Date: 23 April 2021

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

[2021] IEHC 233

2018 No. 942 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Access to information – Directive 2003/4/EC on Public Access to Environmental Information – Applicant seeking judicial review – Whether the respondent’s procedural objections were well founded

Facts: The applicant, Right to Know CLG, on 8 March 2016, requested access to the following information on the environment: all documents which show cabinet discussions on Ireland’s greenhouse gas emissions from 2002 to 2016. This request was refused by an initial decision dated 5 May 2016. Following an internal review, the refusal was affirmed by a subsequent decision dated 10 June 2016. The applicant instituted judicial review proceedings seeking to challenge the decision of 10 June 2016. 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. A fresh decision was duly made on 16 August 2018 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. The applicant sought to challenge the decision on remittal in judicial review proceedings. The principal question for determination concerned the circumstances, if any, in which the constitutional imperative that discussions at meetings of the Government remain confidential must yield to the requirements of a European Directive which confers a right of access to information on the environment. The answer to this question turned, in large part, on how discussions at meetings of the Government are to be characterised for the purposes of the European Directive. The parties were 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. Two objections were raised by the respondent, An Taoiseach. First, it was said that the applicant should have exhausted its statutory right of appeal to the Commissioner for Environmental Information before having recourse to the High Court. Secondly, it was said that the question of the correct characterisation of meetings of the Government, for the purposes of the relevant European Directive, had already been conclusively determined by the High Court in two judgments, one of which involved the applicant itself. The issue was said, therefore, to be the subject of persuasive precedent. It was also said that the applicant was precluded by the doctrine of res judicata from reagitating the issue in these proceedings.

Held by Simons J that there was a strong argument that meetings of the Government should be characterised, for the purposes of Directive 2003/4/EC on Public Access to Environmental Information, as entailing the type of deliberative process captured by the term “proceedings” under Article 4(2)(e), the significance of this being that certain exceptions from the obligation to disclose information would not then apply to records of the meetings of the Government. He held that it would be mandatory to disclose records relating to information on emissions into the environment. He held that this interpretation of the Environmental Information Directive was consistent with the approach adopted by the two Advocates General in the two opinions cited on behalf of the applicant: that of Advocate General Sharpston in Case C‑204/09, Flachglas Torgau and that of Advocate General Szpunar in Case C-60/15 P, Saint-Gobain Glass Deutschland. Simons J could not, however, reach a final decision on this issue without the benefit of a preliminary ruling from the Court of Justice of the European Union.

Simons J proposed making a reference to the Court of Justice pursuant to Article 267 of the Treaty on the Functioning of the European Union (TFEU) for a preliminary ruling on the interpretation of the relevant provisions of Article 4 of the Environmental Information Directive. He also proposed referring a question as to the application, if any, of the principle of res judicata in the form of issue estoppel to the interpretation of the Environmental Information Directive.

Reference to Court of Justice pursuant to Article 267 TFEU.

Appearances

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

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

JUDGMENT of Mr. Justice Garrett Simons delivered on 23 April 2021

INTRODUCTION

1 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 a European Directive which confers a right of access to information on the environment. 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 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.

2 The route to the resolution of this principal question is, potentially at least, blocked by a number of procedural obstacles. Specifically, the following two objections have been raised on behalf of the respondent, An Taoiseach. First, it is said that the applicant should have exhausted its statutory right of appeal to the Commissioner for Environmental Information before having recourse to the High Court. Secondly, it is said that the question of the correct characterisation of meetings of the Government, for the purposes of the relevant European Directive, has already been conclusively determined by the High Court in two judgments, one of which involved the applicant itself. The issue is said, therefore, to be the subject of persuasive precedent. It is also said that the applicant is precluded by the doctrine of res judicata from reagitating the issue in these proceedings.

3 The applicant contends that these procedural objections are not well founded, and has invited this court to make a reference to the Court of Justice of the European Union (“ Court of Justice”) for a preliminary ruling on the interpretation of the relevant provisions of the European Directive.

STRUCTURE OF THIS JUDGMENT

4 It may be helpful to the reader to flag now that the discussion of the objection that the applicant should have exhausted its statutory right of appeal is to be found towards the end of this judgment (at paragraph 65 et seq.). Whereas it had been necessary for me to decide this objection as a threshold issue, it should, hopefully, assist the reader in a better understanding of the issue to leave the discussion of same over until after the detail of the case has been explained.

PROCEDURAL HISTORY

5 In circumstances where this judgment is confined to specific aspects of the applicant's judicial review proceedings, it is not necessary to set out the procedural history in full. The following summary is sufficient for the purposes of this judgment.

6 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 information which was 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.

7 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. 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.

8 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. The decision on remittal cites, seemingly in support of this position, passages from the judgment of the Supreme Court in Attorney General v. Hamilton [1993] 2 I.R. 250.

9 The applicant seeks to challenge the decision on remittal in these judicial review proceedings (“ the second judicial review proceedings”). The proceedings came on for hearing before me over three days commencing on 17 November 2020. During the course of the hearing, it was agreed that the issues arising in respect of cabinet confidentiality (including the procedural objections raised on behalf of the respondent) should be dealt with first, with the court delivering an initial judgment on these issues and on the question of a...