Right to Know CLG v Commissioner for Environmental Information; Minister for Communications, Climate Action and The Environment; Ireland and The Attorney General

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Barr
Judgment Date22 April 2021
Neutral Citation[2021] IEHC 273
Date22 April 2021
Docket Number[Record No. 2019/249 MCA]
Between
Right to Know CLG
Appellant
and
Commissioner for Environmental Information; Minister for Communications, Climate Action and The Environment; Ireland and The Attorney General
Respondents

and

Office of the Secretary General to the President of Ireland
Notice Party

[2021] IEHC 273

[Record No. 2019/249 MCA]

[Record No. 2019/250 MCA]

THE HIGH COURT

Access to information – Environmental information – Public authority – Appellant seeking production to it of documentation concerning environmental information – Whether the notice party was excluded from the definition of a public authority

Facts: The appellant, Right To Know CLG, on 9th February, 2017 and 21st June, 2017, made requests of the notice party, the Office of the Secretary General to the President of Ireland, pursuant to the European Communities (Access to Information on the Environment) Regulations 2007, for production to it of documentation concerning environmental information in relation to two speeches that had been made by the President of Ireland and certain documentation that was before the Council of State, when it advised the President in relation to two particular Bills on which he had consulted them, for the purpose of enabling him to decide whether he would refer the Bills to the Supreme Court for their opinion thereon pursuant Art. 26 of the Constitution. By decisions dated 29th May, 2019 and 17th June, 2019, the first respondent, the Commissioner for Environmental Information, refused to direct the notice party to produce such documentation to the appellant on the basis that the notice party was included within the immunity given to the President under Art. 13.8.1 of the Constitution. The appellant appealed to the High Court pursuant to Art. 13 of the 2007 Regulations. The central issue in the appeal was whether the Commissioner was correct in holding that the notice party was excluded from the definition of a public authority provided for in Directive 2003/4/EC of the European Parliament and of the Council of 28th January, 2003 on public access to environmental information, pursuant to the third sentence in Art. 2.2 of the Directive.

Held by Barr J that a correct interpretation of the third sentence of Art. 2.2 provides that the Member States were given the option of excluding people and bodies within their legal system, whose decisions were immune from review at the date of enactment of the Directive. Barr J noted that Ireland did not avail of that option; therefore, the President, the notice party and the Council of State were “public authorities” within the meaning of the Directive. Barr J held that the first respondent was wrong to hold that the notice party was not a public authority in relation to the request for access to the background material to the two speeches made by the President, which was the subject matter of the appellant’s request dated 9th February, 2017. Barr J found that the first respondent was correct to reach the decision that the appellant was not entitled to the documentation held by the Council of State, as both the Council of State and the President were clearly acting as part of the legislative process when considering the possible reference of the Bills in question to the Supreme Court pursuant to Art. 26 of the Constitution; they came within the exception provided for in Art. 3(2) of the 2007 Regulations.

Barr J proposed making an order in the following terms: (a) allowing the appeal insofar as it related to the request for documentation concerning the speeches made by the President and setting aside the finding of the first respondent that the notice party was not a public authority at the time of that request; (b) remitting the matter to the first respondent for him to consider the request in light of this judgment; (c) dismissing the appeal brought by the appellant in respect of the decision of the first respondent to refuse the appellant access to the material sought concerning the Council of State, as contained in their request dated 21st June, 2017; (d) affirming the decision of the Commissioner dated 17th June, 2019 that the notice party and the Council of State were acting in a legislative capacity and were therefore not public authorities within the meaning of the Directive; (e) staying this judgment for 28 days from perfection of the final order and if a notice of appeal was lodged by any party within that period, the stay would continue until the final determination of the matter by the Court of Appeal; (f) costs would be determined after receipt of submissions thereon from the parties.

Appeal allowed in part.

JUDGMENT of Mr. Justice Barr delivered electronically on the 22nd day of April, 2021

Introduction
1

On 9th February, 2017 and 21st June, 2017, the appellant made requests of the notice party pursuant to the European Communities (Access to Information on the Environment) Regulations 2007 (hereinafter referred to as ‘the 2007 Regulations’), for production to it of documentation concerning environmental information in relation to two speeches that had been made by the President of Ireland and certain documentation that was before the Council of State, when it advised the President in relation to two particular Bills on which he had consulted them, for the purpose of enabling him to decide whether he would refer the Bills to the Supreme Court for their opinion thereon pursuant Art. 26 of the Constitution.

2

By decisions dated 29th May, 2019 and 17th June, 2019, the first named respondent refused to direct the notice party to produce such documentation to the appellant on the basis that the notice party was included within the immunity given to the President under Art. 13.8.1 of the Constitution.

3

This is an appeal by the appellant pursuant to Art. 13 of the 2007 Regulations (as amended). This provides that a party who has appealed an initial decision to refuse release of documentation, to the Commissioner for Environmental Information (the first respondent), may appeal the Commissioner's decision to the High Court on a point of law.

4

While a number of grounds of appeal where canvassed before the court at the hearing of this appeal, the central issue in the appeal boiled down to the following question: whether the Commissioner was correct in holding that the notice party was excluded from the definition of a public authority provided for in Directive 2003/4/EC of the European Parliament and of the Council of 28th January, 2003 on public access to environmental information (hereinafter ‘the Directive’), pursuant to the third sentence in Art. 2.2 of the Directive, which was in the following terms:-

“If their constitutional provisions at the date of adoption of this Directive makes no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition.”

5

While that particular provision was not transposed into the 2007 Regulations, which implemented the 2003 Directive, the respondents argued that it was not necessary so to do. They submitted that the Directive was clear in its terms that once a person or body enjoyed immunity from review of its decisions under the constitutional provisions of the law of the Member State at the date of entry into force of the Directive, they were automatically excluded from the definition of public authority contained therein.

6

The appellant argued that the Commissioner had been incorrect in law when acceding to that argument. It was submitted that the true interpretation of that sentence in Art. 2.2. of the Directive, meant that Member States had to take a step when transposing the Directive into domestic law to avail of the option that was given to them to exclude such persons or bodies from the definition of public authority. As that had not been done by the Irish Government when transposing the Directive into Irish law, it was submitted that the notice party was therefore within the definition of public authority in the Directive and in the 2007 Regulations and was therefore obliged to furnish the documentation requested by the appellant.

7

The central issue in the case is whether the words “may exclude” in the third sentence of Art. 2.2 of the Directive, required the government to take a step to formally exclude the President and his staff from the ambit of the Directive; or, as submitted by the respondents, the fact that they were immune from being made answerable by a court under the provisions of the Constitution, meant that they were automatically excluded from the ambit of the Directive.

Background
8

By email sent on 9th February, 2017, the appellant requested the notice party to provide the following documentation: a copy of all records, to include emails, memos, letters, briefing notes, draft speeches and so on, relating to a speech given by President Higgins in Paris in July 2015 at the Summit of Consciences of the Climate and a copy of all records, to include emails, memos, letters, briefing notes, draft speeches and so on, relating to an address given by President Higgins at the New Year's Greeting Ceremony in January 2016.

9

When the appellant received no response from the notice party to that request, it deemed such lack of response to be a refusal and appealed such refusal to the first respondent, who is the Commissioner for Environmental Information. Such appeal is provided for under Art. 12 of the 2007 Regulations.

10

By email dated 21st June, 2017, the appellant sent a further request to the notice party seeking the following records held by the Council of State: copies of any submissions, memoranda, briefing notes prepared with regard to the following pieces of legislation, which were considered by the Council of State: the Planning and Development Bill 1999; s.24 of the Housing ( Miscellaneous Provisions) (No. 2) Bill 2001; copies of the minutes of the Council meetings held with...

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1 cases
  • Right to Know CLG v Commissioner for Environmental Information
    • Ireland
    • Supreme Court
    • 29 April 2022
    ...to Article 13 of the AIE Regulations, Barr J delivered one judgment governing both appeals by which he allowed the appeal in part: [2021] IEHC 273. The respondents/appellants, the Minister for Communications, Climate Action and the Environment, Ireland and the Attorney General (the State pa......

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