Right to Know CLG v Commissioner for Environmental Information

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 21 September 2022
• Neutral Citation: [2022] IECA 210
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record Number: 2021/103

Between

Right to Know CLG

Applicant/Respondent

and

Commissioner for Environmental Information

Respondent

and

Raheenleagh Power DAC

Notice Party/Appellant

[2022] IECA 210

Costello J.

Noonan J.

Faherty J.

Court of Appeal Record Number: 2021/103

High Court Record Number: 2019/87 MCA

THE COURT OF APPEAL

CIVIL

Access to environmental information – Public authority – Article 2(2) of Council Directive 2003/4/EC on public access to environmental information – Respondent seeking access to environmental information held by the appellant – Whether the appellant was a public authority within the meaning of Council Directive 2003/4/EC on public access to environmental information

Facts: The applicant/respondent, Right to Know CLG (RTK), on 22 February 2017, sought access to environmental information held by Coillte Teoranta (Coillte) in relation to a wind farm located at Raheenleagh Forest in County Wicklow. Coillte granted part of the request and refused access to some of the environmental information sought on the basis that it was not held for or on behalf of Coillte. The information was held by the notice party/appellant, Raheenleagh Power DAC (RPD). RTK formed the view that RPD was a public authority within the meaning of the European Communities (Access to Information on the Environment) Regulations 2007-2008 (the AIE Regulations) and thus was required to furnish it with environmental information. On 19 May 2017, RTK requested the information from RPD. On 11 July 2017, RPD stated that it was not a public authority under the AIE Regulations. RTK appealed that decision to the respondent, the Commissioner for Environmental Information (the commissioner), on 14 July 2017. On 9 January 2018, the commissioner found that RPD was not a public authority for the purposes of the AIE Regulations. RTK appealed the decision to the High Court on a point of law pursuant to Article 13 of the AIE Regulations by a notice of motion dated 7 March 2019. The High Court held that RPD was a public authority within the meaning of Article 2(2) of Council Directive 2003/4/EC on public access to environmental information (the Directive). RPD appealed the decision of the High Court to the Court of Appeal. It was submitted that the appeal raised five issues for determining whether RPD was a public authority within the meaning of Article 2(2) of the Directive: (a) Was RPD entrusted with the provision of services of public interest? (b) Did RPD enjoy special powers? (c)Was RPD controlled by a public authority? (d) When is the question of control to be assessed? (e) Depending on the court’s conclusions on these issues, whether (i) it should remit any part of the case back to the commissioner for determination or (ii) refer any questions of law to the Court of Justice of the European Union.

Held by Costello J that RPD was not a public authority within the meaning of Art. 2(2)(b) of the Directive as it had not been entrusted with the provision of services of public interest by reason of the fact that it had an authorisation to construct a generator and was licensed to generate electricity in the State. Costello J held that RPD was vested with special powers under national law but that was not sufficient to bring it within the scope of Art. 2(2)(b) of the Directive. Costello J held that RPD was not controlled by a public authority within the meaning of Article 2(2)(a) or (b) as it had not been shown that it did not perform its function in a genuinely autonomous manner. Costello J held that it was therefore not a public authority within the meaning of Article 2(2)(c) of the Directive.

Costello J allowed the appeal and held that RPD was not a public authority within the meaning of the Directive and accordingly was not required to provide RTK with the information sought. Costello J held that it was not necessary to remit any part of the case back to the commissioner for determination or to refer any question of law to the Court of Justice of the European Union.

Appeal allowed.

No Redactions Needed

JUDGMENT of Ms. Justice Costello delivered on the 21st day of September 2022

1 . The issue for resolution in this appeal is a net one: whether Raheenleagh Power DAC (“RPD”) is a public authority within the meaning of the European Communities (Access to Information on the Environment) Regulations 2007–2008 (“the AIE Regulations”).

Background

2 . Right to Know CLG (“RTK”) is a company limited by guarantee whose objects are to improve, promote and advocate for increased rights of public access to information. It was incorporated on 24 July 2015. On 22 February 2017 RTK sought access to environmental information held by Coillte Teoranta (“Coillte”) in relation to a wind farm located at Raheenleagh Forest in County Wicklow. Coillte granted part of the request and refused access to some of the environmental information sought on the basis that it was not held for or on behalf of Coillte. The information was held by RPD.

3 . RPD is a private limited company which owns and operates the Raheenleagh Wind Farm at Raheenleagh Forest, Ballinvalley, County Wicklow. This wind farm consists of 11 turbines and associated development. RPD's business is to generate and sell electricity. RPD was originally established as a joint venture between ESB Wind Development Limited (“ESB Wind”), a subsidiary of the Electricity Supply Board and Coillte. RTK formed the view that RPD was a public authority within the meaning of the AIE Regulations and thus was required to furnish it with environmental information.

4 . On 19 May 2017 RTK requested the following information from RPD at its e-mail address Subcosecretarial@esb.ie:

• “1. All noise data and associated wind speed/direction data in Excel format to include all noise descriptors captured for the Coillte/ESB development at Raheenleagh Wind Farm. Specifically, the detailed data, graphs and analysis which was used as input into the very brief set of information contained within the EIS documentation submitted to Wicklow CC as part of the planning submission.

• 2. The full output from the Wind Pro S/W showing calculations for noise compliance.

This request covers inter alia Planning Permissions 10/2140, 12/6049 and any others associated with the site.”

5 . RPD did not reply to the e-mail. On 20 June 2017 RTK e-mailed RPD requesting an internal review of this “deemed refusal”. On 11 July 2017, RPD responded by an e-mail attaching a letter dated 7 July 2017 stating that it was not a public authority under the AIE Regulations.

6 . RTK appealed this decision to the Commissioner for Environmental Information (“the commissioner”) on 14 July 2017. The commissioner invited RTK to make a submission which it did on 4 August 2017. On 28 March 2018 the commissioner held that RPD was not a public authority within the meaning of the AIE Regulations. RTK instituted judicial review proceedings in the High Court on 24 May 2018 seeking various declaratory reliefs against the commissioner. The proceedings were ultimately settled and struck out on consent on 22 October 2018. The issues that were the subject of the initial request were remitted back to the commissioner to be determined de novo.

7 . On 26 October 2018 the commissioner e-mailed RTK and RPD and invited them to make submissions on the following issues in the context of RTK's appeal:

• 1. Case law regarding the definition of public authority,

• 2. Recent decisions by the commissioner relating to the definition of public authority,

• 3. Submissions in CEI/17/0030 (the original appeal by RTK to the commissioner),

• 4. Reports regarding the sale of RPD, and

• 5. The commissioner's understanding of RPD's licence to generate electricity.

8 . Point 4 arose because Coillte was proposing to sell its 50% shareholding in RPD to GR Wind Farms 1 Limited (“GR Wind”), a wholly owned subsidiary of Greencoat Renewables plc. Both GR Wind and Greencoat Renewables plc are private commercial companies incorporated under the Companies Act 2014. The sale of the 50% in the joint venture was completed on 21 December 2018. Thereafter the entire shareholding in RPD was held by ESB Wind and GR Wind as a joint venture.

9 . On 9 January 2018 the commissioner issued his decision. He found that RPD was not a public authority for the purposes of the AIE Regulations as it did not meet the definition of a public authority contained in the AIE Regulations and Council Directive 2003/4/EC on public access to environmental information (“the Directive”). He held that:

• (1) RPD, as a private company established under The Companies Act, 2014, was not a public authority within the meaning of Article 3(1)(a) of the AIE Regulations;

• (2) RPD had not been vested with special powers and, therefore, did not perform public administrative functions within the meaning of Article 3(1)(b) of the AIE Regulations; and

• (3) The generation of electricity is not a public service, nor does it involve the exercise of public responsibilities or functions and therefore RPD does not have responsibilities or functions or provide a public service within the meaning of Article 3(1)(c) of the AIE Regulations.

10 . RTK appealed the decision to the High Court on a point of law pursuant to Article 13 of the AIE Regulations by a Notice of Motion dated 7 March 2019.

The definition of a public authority

11 . In order to understand the arguments of the parties it is necessary to set out the definitions of a public authority in the Aarhus Convention, the Directive and the AIE Regulations.

12 . The EU and the State are both parties to the Aarhus Convention. Article 2(2) of the Convention defines a public authority as:

• “(a) Government at national, regional and other level;

• (b) Natural or legal persons performing public administrative functions under national law, including specific duties, activities or services in relation to the environment;

• (c) Any...