The Commissioner for Environmental Information v Coillte Teoranta and Another
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 28 April 2023 |
| Neutral Citation | [2023] IEHC 227 |
| Docket Number | Record No. 2021/242MCA |
| Court | High Court |
In the Matter of Article 12(9)(A) of the Access to the Information on the Environment Regulations 2007–2019
and
and
[2023] IEHC 227
Record No. 2021/242MCA
THE HIGH COURT
JUDGMENT of Ms. Justice Niamh Hyland delivered on 28 April 2023
This is an application under Regulation 12(9)(a) of the European Communities (Access to Information on the Environment) Regulations 2007–2018 1 (the “AIE Regulations” or the “Regulations”) in respect of questions put to the Court by the Commissioner for Environmental Information (“the Commissioner”). Regulation 12(9)(a) permits the Commissioner to refer any question of law arising in an appeal under Regulation 12 to the High Court for determination and to postpone the making of a decision until after the determination of the court proceedings.
The two principal issues identified were whether the scheme of the Freedom of Information Act 2014 (the “FOI Act”), which permits a refusal to disclose records otherwise disclosable under the Act, represents a law which provides for the “confidentiality of public authorities” and whether, even if that is so, Coillte can rely on that FOI Act to resist
disclosure of environmental information under the AIE Regulations. Coillte is in an unusual position in that, although it is a public body within the definition of s.6(1) of the 2014 Act, it is listed in Part 2 of Schedule 1 as an exempt agency and as such is not subject to the FOI ActAt the hearing, the Commissioner made it clear he was no longer seeking answers to Questions C(4) or D(2). I have reformulated certain of the questions, and I set out below the reformulated questions and answers to Question A, Question C(1), (2) and (3) and Question D(1). Question B does not require a response because of the answers to those questions.
Question A: Do the exemptions in the FOI Act create protection for the confidentiality of proceedings of public bodies such that the FOI Act provides for legal protection of confidentiality for the purposes of Regulation 8(a)(iv) of the AIE Regulations?
Answer: The exemptions in the FOI Act create protection for the confidentiality of proceedings of public bodies where records sought to be disclosed are found to be exempt within the meaning of the FOI Act, such that the FOI Act protects the confidentiality of the proceedings of public authorities for the purposes of Regulation 8(a)(iv) of the AIE Regulations, (public authorities being defined in those Regulations).
Question C(1) and (2): Having regard to the response to Question A, is the confidentiality protection under the FOI Act identified in Regulation 8(a)(iv) available to Coillte, given its status as an exempt agency under the FOI?
Answer: The FOI Act only protects the confidentiality of proceedings of public bodies where records sought to be disclosed are found to be exempt within the meaning of the FOI Act. Records are only exempt where the public body seeking to withhold access is a body subject to the FOI Act, as defined by section 6 of the FOI Act, and where (if applicable), both limbs of the test for exemption are met: the records come within an exemption protecting the confidentiality of proceedings of public bodies and the public interest does not warrant disclosure. As Coillte is an “exempt agency” under the Act, the confidentiality protection under the FOI Act identified in Regulation 8(a)(iv) is not available to Coillte.
Question C(3): If “public bodies” does not include exempt agencies, to what extent does the fact of the exclusion of those bodies from the FOI Act indicate that the confidentiality of their proceedings is otherwise protected?
Answer: The exclusion of Coillte from the definition of public body and accordingly from the FOI Act has no implications for the confidentiality of their proceedings in any other context.
Question D(1): If the FOI Act does not protect such confidentiality, does Regulation 8(a)(iv) of the AIE Regulations create a new species of confidentiality of proceedings, by reference to the FOI Act, for the purpose of refusal of access to environmental information?
Answer: The reference to the FOI Act in Regulation 8(a)(iv) is for the purpose of identifying one instance in domestic law where the confidentiality of the proceedings of public authorities is otherwise protected by law. It does not create law; it simply recognises existing law. As such it does not create a new species of confidentiality of proceedings for the purpose of refusal of access to environmental information.
The questions arise in the context of an appeal brought by People Over Wind against a decision by Coillte of 20 February 2020. The Commissioner, having considered the arguments of the parties, decided that he required the assistance of the Court to further progress the appeal and made this application.
The questions concern two provisions of the AIE Regulations, Regulation 8(a)(iv), and Regulation 9, both of which implement Article 4 of the Directive 2003/4 on public access to environmental information (“ Directive 2003/4” or the “AIE Directive). Article 4 provides various grounds upon which a public authority may refuse to disclose environmental information where disclosure would adversely affect certain interests, including confidentiality. Regulation 8(a)(iv) implements Article 4(2)(a), referring to confidentiality being protected by law, inter alia, by the FOI Acts 1997–2003. The FOI Act 2014 has repealed and replaced those Acts. I am therefore construing the reference to the previous FOI Acts as a reference to the FOI Act 2014 as provided for by s.26 of the Interpretation Act 2005. It is the meaning and implication of that reference insofar as Coillte is concerned that forms the subject matter of the questions referred. Before setting out the circumstances in which the questions arose, it is helpful to establish the legal context in which the reference to the FOI Act arises by describing the relevant provisions of the AIE Directive, the AIE Regulations and the FOI Act.
Directive 90/313/EC on freedom of access to information on the environment was the first legislative measure adopted at EU level to address access to environmental information. The object of that Directive was to ensure freedom of access to information on the environment held by public authorities. Following the signature by the European Community (as it then was) of the Aarhus Convention, it was necessary to ensure that provisions of Community law be consistent with the Convention. A new legal instrument in respect of access to information on the environment was required. Accordingly, the AIE Directive was adopted on 28 January 2003. It was implemented in Irish law by the AIE Regulations.
The aim and purpose of the AIE Directive is not hard to discern. Many judgments of the CJEU and the Irish courts have considered this issue. The objectives of Directive 2003/4, identified at Article 1, are to guarantee the right of access to environmental information held by or for public authorities and to ensure that environmental information is progressively made available and disseminated to the public to achieve the widest possible systemic availability (see also Recital 9 to similar effect). Recital 16 of the Preamble is particularly important in the context of these proceedings. It provides as follows:
16. The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal. The reasons for a refusal should be provided to the applicant within the time limit laid down in this Directive.”
The CJEU has referred to those objectives of the AIE Directive as being directed towards ensuring a general principle of access to environmental information held by or for public authorities and to ensure the widest dissemination of same (see Case C-442/14 Bayer Crop Science v Stichting De Bijenstichting (ECLI:EU:C:2016:890) and Case C-279/12 Fish Legal v Information Commissioner (ECLI:EU:C:2013:853)). In Bayer Crop Science, a suggested interpretation of the term “emissions into the environment” that would have been contrary to the Directive's objective of the widest possible disclosure of environmental information was rejected, inter alia, having regard to the purpose of the Directive. There is simply no dispute about the fact that the AIE Directive should be interpreted in the widest fashion possible to promote maximum access to environmental information. I have approached the question of the correct interpretation of the AIE Regulations bearing this principle in mind.
Turning now to the provisions of the Directive, Article 1 identifies that its objective is:
“(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.”
Article 2 defines a “public authority”. This definition was considered by the CJEU in Fish Legal, which was in turn considered by...
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