Right to Know CLG v an Taoiseach

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 24 March 2023
• Neutral Citation: [2023] IECA 68
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2020/227

In the matter of the European Communities (Access to Information on the Environment) Regulations 2007–2018

Between/

Right to Know CLG

Applicant/Appellant

and

An Taoiseach and Minister for Communications, Climate Action and The Environment, Ireland and The Attorney General

Respondents

[2023] IECA 68

Noonan J.

Faherty J.

Binchy J.

Appeal Number: 2020/227

THE COURT OF APPEAL

Judicial review – Access to information on the environment – Alternative remedies – Appellant seeking judicial review – Whether the appellant failed to exhaust alternative remedies

Facts: The appellant, Right to Know CLG, appealed to the Court of Appeal against the decision of the High Court (Meenan J) of 28 February 2020 in which he refused an application for judicial review of two decisions said by the appellant to constitute a refusal by the first respondent, An Taoiseach, of a request made by the appellant pursuant to the European Communities (Access to Information on the Environment) Regulations 2007–2018 (the AIE Regulations). Further to the submissions of the parties in the appeal, Faherty J considered that the following issues arose for determination: (1) whether the appellant failed to exhaust alternative remedies provided for in the AIE Regulations such that their judicial review application was not justified in all the circumstances; (2) whether the judge was correct to find as he did, namely that the requirement under Article 6(1)(b) of the AIE Regulations to state that the request is made under the Regulations complied with the “practical arrangements” envisaged by Article 3(5) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information (the AIE Directive); and (3) whether the judge was correct to find that provisions of Article 6(1)(b) were permissible under the European Communities Act 1972 and thus did not infringe Article 15.2.1 of the Constitution.

Held by Faherty J that she did not see how the case could be treated (as the appellant urged the Court to do) as an exception to the general rule that an appellate mechanism should be availed of when same has been provided for. She found that there was an extensive statutory appellate mechanism prescribed for in the AIE Regulations available to the appellant, including an entitlement for it to appeal on a point of law to the High Court from the decision of the Commissioner for Environmental Information (had it appealed to the Commissioner), coupled with the power also given to the Commissioner to refer a point of law arising in an appeal to the High Court. Faherty J held that the appellant had not provided any rational explanation as to why a distinction could be drawn between Article 6(1)(b) and Article 6(1)(a) and (c). She found that the fact that the appellant took no issue with those latter requirements of Article 6(1) (which were not provided for in the AIE Directive) lent force both to the conclusion that Member States are entitled to introduce practical arrangements which are not listed in Article 3(5)(c) of the AIE Directive, and to the respondents’ contention that Article 1(b) is but a practical arrangement in the same vein as Article 6(1)(a) and (c). She held that the appellant understood precisely what was being requested by the first respondent in the email correspondence of 3 and 7 August 2018. Faherty found that the issue was that the appellant elected not to indicate to the first respondent that the request was being made under the AIE Regulations. In Faherty J’s view, that election could not be equated with a restriction imposed on the appellant in the exercise of the right of access to environmental information; if anything, it was the appellant’s own actions which prevented the request it made for information from being processed. She found that the appellant had not made out the case that Article 6(1)(b) is not permitted by the AIE Directive. Accordingly, she upheld the finding made by the judge at para. 23 of the judgment. Faherty J held that Article 6(1)(b) is a practical step in accordance with the Directive; it is thus an incidental provision within the meaning of s. 3 of the 1972 Act and, as such, is entirely consistent with Article 15.2.1 of the Constitution.

Faherty J dismissed the appeal.

Appeal dismissed.

UNAPPROVED

JUDGMENT of Ms. Justice Faherty delivered on the 24 ^th day of March 2023

1 . This is an appeal by Right to Know CLG (“Right to Know”) against the decision of the High Court (Meenan J.) of 28 February 2020 in which he refused an application for judicial review of two decisions said by Right to Know to constitute a refusal by the first respondent of a request made by Right to Know pursuant to the European Communities (Access to Information on the Environment) Regulations 2007 – 2018 (“the AIE Regulations”).

2 . The AIE Regulations transposed into law the provisions of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information (“the AIE Directive”).

3 . The fundamental question presented in the High Court and on appeal to this Court is whether the requirement set out in Article 6(1)(b) of the AIE Regulations that an applicant for information on the environment state that the request is made pursuant to the AIE Regulations accords with the object and purpose of the AIE Directive.

The legislative background

4 . To best understand the issues arising in the appeal, it is apposite, at this juncture, to set out the salient provisions of both the AIE Directive and the AIE Regulations.

5 . The broad purpose of the AIE Directive is well-settled. In summary, it provides for a general right under EU law for the public to access environmental information held by public authorities, subject to certain limited exceptions which must be construed narrowly.

6 . The objectives of the AIE Directive are evident in the Recitals to the Directive. Recital 1 recognises that 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”. Recital 8 refers to it being “necessary to ensure that any natural and legal person has a right of access to environmental information held by or for public authorities without his having to state an interest”. Recital 9 refers to the necessity “that public authorities make available and disseminate environmental information to the general public to the widest extent possible…”.

7 . Pursuant to Recital 13, information pertaining to the environment is to be made available to applicants as soon as possible and within a reasonable time and having regard to any time scale specified by the applicant. Recital 14 states that public authorities should make environmental information available in the form or format requested by the applicant unless it is already publicly available in another form or format or it is reasonable to make it available in another form or format.

8 . Recital 15 provides:

“Member States should determine the practical arrangements under which such information is effectively made available. These arrangements shall guarantee that the information is effectively and easily accessible and progressively becomes available to the public through public telecommunications networks, including publicly accessible lists of public authorities and registers or lists of environmental information held by or for public authorities.”

9 . Pursuant to Recital 24, the provisions of the AIE Directive shall not affect the right of a Member State to maintain or introduce measures providing for broader access to information than required by the AIE Directive.

10 . Article 1 of the AIE Directive provides:

“The objectives of this Directive are: (a) to guarantee the right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of, and practical arrangements for, its exercise; and (b) to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information. To this end the use, in particular, of computer telecommunication and/or electronic technology, where available, shall be promoted.”

11 . Article 3 sets out the obligations on Member States, as follows:

“Access to environmental information upon request

• 1. Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest.

• 2. Subject to Article 4 and having regard to any timescale specified by the applicant, environmental information shall be made available to an applicant:

  (a) as soon as possible or, at the latest, within one month after the receipt by the public authority referred to in paragraph 1 of the applicant's request; or

  (b) within two months after the receipt of the request by the public authority if the volume and the complexity of the information is such that the one-month period referred to in (a) cannot be complied with. In such cases, the applicant shall be informed as soon as possible, and in any case before the end of that one-month period, of any such extension and of the reasons for it.

• 3. If a request is formulated in too general a manner, the public authority shall as soon as possible, and at the latest within the timeframe laid down in paragraph 2(a), ask the applicant to specify the request and shall assist the applicant in doing so, e.g. by providing information on...