Right to Know CLG (“RTK”) v Commissioner for Environmental Information
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 20 April 2021 |
| Neutral Citation | [2021] IEHC 353 |
| Court | High Court |
| Docket Number | [2020 No. 34 MCA] |
In the Matter of Order 84C of the Rules of the Superior Courts and Regulation 13 of the European Communities (Access to Information on the Environment) Regulations 2007–2018.
and
[2021] IEHC 353
[2020 No. 34 MCA]
THE HIGH COURT
JUDGMENT of Mr Justice Max Barrett delivered on 20th April, 2021.
Right to Know has been refused certain documents by RTÉ and is not taking ‘no’ for an answer. It contends that the Commissioner erred in the manner in which he decided the review of RTÉ's refusal of the documents. The court agrees.
The facts of the case are most clearly dealt with by way of summary chronology:
24.11.2018. RTK emails RTÉ requesting copies of any records held relating to (a) how RTÉ reports on climate change issues and (b) RTÉ's creation of policies/guidelines on climate change reporting. The request was made under the European Communities (Access to Information on the Environment) Regulations 2007 to 2018.
20.12.2018. RTÉ indicates that: there are no records relating to category (b); while it does possess documentation relating to category (a), this – apparently; the court has not seen the documentation – was in the form of public correspondence/feedback by way of email. RTÉ took the view that these emails could not be considered to be environmental information. It is not entirely clear what is contained in the substance of the emails. Mr Dowling, who swore an affidavit on 9th October last for RTÉ refers to them as “ records…in the form of email correspondence and feedback from members of the public” (para.9) and also as “constituting communications from members of the public in relation to RTÉ's coverage of environmental/climate change issues” (para.14). Though comprised within email correspondence it is not clear precisely what the word “ feedback” is intended to connote. However, it seems to be that the email correspondence refers to the quantity and quality of RTÉ's climate change broadcasting/reporting.
21.12.2018. RTK seeks an internal review of RTÉ's decision.
25.01.2019. The internal review proves unsuccessful from RTK's persepctive.
02.02.2019. RTK seeks a review of the unsuccessful review by the Commissioner.
06.12.2019. The Commissioner concludes that “[T]he information concerned is not environmental information within the meaning of the definition in article 3(1)(e) of the AIE Regulations” (Decision, p.1) and hence that “RTÉ was not obliged to process the appellant's request for access to the information and that he had no further jurisdiction in relation to the matter” (Decision, p.1).
The notice of motion seeks various reliefs. The principal remaining relief sought, apart from certain declaratory reliefs, is “[a]n Order pursuant to Article 13 of the [Regulations]…and Order 84 RSC setting aside the decision of the Commissioner for Environmental Information made on 6th December 2019”, as well as the standard application for costs.
The court gratefully adopts the below-quoted text, which appears in the written submissions of counsel for the respondent, as correctly stating various of the norms informing how the court should treat with a statutory appeal of the type here presenting:
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“a. This is not a full de novo appeal. Rather it is limited to points of law.1
1 [See, e.g., the summation of principle in Electricity Supply Board v. Commissioner for Environmental Information [2020] IEHC 190 at [10]–[13], Minister for Communications, Energy and Natural Resources v. The Information Commissioner [2020] IESC 57 at [112]. See also Deely v. Information Commissioner [2001] 3 I.R. 439, Killilea v. Information Commissioner [2003] 2 I.R. 402, Sheedy v. Information Commissioner [2005] 2 I.R. 272, Westwood Club v. Information Commissioner [2014] IEHC 375, and McKillen v. Information Commissioner [2016] IEHC 27; FP v. Information Commissioner [2019] IECA 19 at [26]; Coyle v. The Labour Court [2020] IEHC 111.]
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b. Whereas findings of fact are largely for the [decisionmaker]…a finding of fact cannot survive where there is no evidence at all for a factual conclusion.2 The same standard, of course, does not apply to purely legal issues of statutory interpretation, but it does apply to conclusions of mixed law and fact insofar as the facts conclusions are impugned.3
2, 3 [ Deely v. Information Commissioner [2001] 3 I.R. 439, Electricity Supply Board v. Commissioner for Environmental Information [2020] IEHC 190 at [10]–[13]; Minister for Communications, Energy and Natural Resources v. The Information Commissioner [2020] IESC 57 at [112]–[114]].
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c. An appeal cannot be successful simply because, as Peart J. said in FP v. Information Commissioner [2019] IECA 19 at [74] “…the court hearing an appeal might itself have reached a different decision. There must be a clear error of law established.”
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d. A party cannot put new evidence before the High Court [that was] not before the Commissioner4 and cannot make arguments not made to the Commissioner. This does not preclude arguments that only arise from the Commissioner's decision on which a party could not be expected to have made submission.5
4 [ Minister for Education v. Information Commissioner [2009] 1 I.R. 588, at 591–92 and South West Area Health Board v. Information Commissioner [2005] 2 I.R. 547, at 553 where (in the latter case) Smyth J. held: ‘It would be wholly unsatisfactory that a decision on appeal should be made without the matter having first been raised before the Commissioner.’ See also The Governors of the Hospital for the Relief of Poor Lying-In Women v. Information Commissioner [2013] 1 I.R. 1 at 29 per Fennelly J, ‘I think it is an integral part of any appeal process, other than possibly an appeal by complete re-hearing, that any point of law advanced on appeal shall have been advanced, argued and determined at first instance.’ This principle has been rigorously applied recently in McKillen v. Information Commissioner [2016] IEHC 27. Similarly, as Hyland J. held in Jackson Way Properties v. Information Commissioner [2020] IEHC 73 at para.48: “There are obvious reasons why a party cannot introduce an argument for the first time at the oral hearing.”
5 Minister for Communications, Energy and Natural Resources v. The Information Commissioner [2020] IESC 57]
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e. The well-known standard in Orange v. The Director of Telecommunications Regulations & Anor [2000] 4 I.R. 159 as applied in many cases such as Nowak v. Data Protection Commissioner [2016] 2 I.R. 585 is relevant. The appellant must show that as a matter of probability that, taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors. The notion that the error must be serious and significant is clearly important…[S]ignificance, in particular, requires to be gauged in the context of the decision as a whole.
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f. In this case, the Regulations must be interpreted having regard to the Directive and Aarhus Convention.6
6 [ Minch v. Commissioner for Environmental Information [2017] IECA 223; NAMA v. Commissioner for Environmental Information [2015] 4 I.R. 626.]”
Of note when it comes to the present application are recitals (1), (2) and (10) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (O.J. L 41, 14. 2.2003, p. 26) (the ‘AIE Directive’). They state as follows:
“(1) 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.
(2) Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment initiated a process of change in the manner in which public authorities approach the issue of openness and transparency, establishing measures for the exercise of the right of public access to environmental information which should be developed and continued. This Directive expands the existing access granted under Directive 90/313/EEC….
(10) The definition of environmental information should be clarified so as to encompass information in any form on the state of the environment, on factors, measures or activities affecting or likely to affect the environment or designed to protect it, on cost-benefit and economic analyses used within the framework of such measures or activities and also information on the state of human health and safety, including the contamination of the food chain, conditions of human life, cultural sites and built structures in as much as they are, or may be, affected by any of those matters.”
As regards recital (1), this case falls within that recital, both under the public access but also the information dissemination aspects of same. On the information dissemination point, the crux of what is at play in this regard is well caught in an email that was sent by RTK to the Commissioner's staff as part of the ‘to-ing and fro-ing’ by way of correspondence that was a feature of the review process:
“…Broadcasting, particularly by a public service broadcaster shapes public opinion by informing the public about the subject matter. The degree of awareness around climate change is almost certain to affect the way people adapt to and accept climate change issues. The Commissioner doesn't have to be satisfied that RTÉ's reporting of climate change issues and public knowledge and acceptance of climate change issues should be readily understood given the role of media in our society as a way for...
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