This document discusses access to environmental information in Ireland based on EU directives and court judgments. It summarizes that public authorities broadly defined must provide access to environmental information, with exceptions construed narrowly and a public interest balance. Key court cases have established that EU law can override national rules and must be interpreted purposively to ensure transparency. However, implementation challenges remain, as public authorities often deny requests are environmental, rely on improper exemptions, and reviews can be delayed. Courts also apply a deferential standard of review rather than fully considering requested information. Overall access has expanded but further reforms are still needed.
8. Summary โ basic principles
โข Public authority โ broad definition, including
quangos and privatised/regulated entities
โข Environmental Information โ Right of access
โข Exceptions โ construed narrowly โ burden on
public authority to demonstrate
โข Public interest balance in all cases
โข Partial release
โข Emissions override
9. Main Irish court judgments
โข NAMA v Commissioner for Environmental
Information [2013] IEHC 166 and [2015] IESC 51
โข Limits to transposition by secondary legislation โ cannot
go beyond what is provided in directive
โข Purposive interpretation required
โข CEI should have made preliminary reference
โข Public authority shouldnโt have made a narrow decision
limited to whether it was a public authority
10. Main Irish court judgments
โข Minch v Commissioner for Environmental
Information [2017] IECA 223
โข Whether National Broadband Plan was a measure
affecting or likely to affect the environment
โข Document must have graduated from simply being an
academic thought experiment into something more
definite โฆ however tentative, aspirational or conditional
โฆ which โฆ is likely to affect the environment.
โข Commissioner is not required to make a judgment as to
whether a plan or policy will ever be implemented
11. Main Irish court judgments
โข Right to Know v. An Taoiseach [2018] IEHC 372
โข Request for access to cabinet discussions of Irelandโs GHG
emissions
โข Constitutional guarantee of cabinet confidentiality โ an
absolute exemption?
โข Exceptions are exhaustive and balancing test in every
individual case
โข Rules of national law, even of a constitutional order, cannot
be allowed to undermine the unity and effectiveness of
European Union law (AG in Kriลพan C-416/10)
โข Decision must reflect the fact that the process of engagement
with the request was conducted in accordance with the letter
and spirit of the Directive.
โข No formulaic decisions
โข Must be specific reasons relating to each record
12. It again shows that EU legislation can be a real game-changer and can shine light into dark,
hush-hush corners usually left cobwebbed and undisturbed by unwelcome public intrusion.
13. Some issues
โข Equivalence/Effectiveness
โข AIE/FOI
โข Public authority stage
โข Administrative review
โข Not expeditious
โข Doesnโt use powers
โข Interim decisions
โข Judicial review
โข Generally progressive and affirming purposive approach
โข Scope of review
14. Equivalence
โข Doctrine of equivalence โ EU rights must be treated no less
favourably than equivalent domestic rights
โข FOI gives 4 month target on Information Commissioner to
make a decision under domestic access to information rules
โข No such imposition on CEI under AIE
โข Result โ seriously longer decision making time in AIE
<4 Months < 12 Months
FOI AIE FOI AIE
2017 63% 0% 98% 65%
2016 60% 4% 99% 26%
2015 53% 0% 91% 20%
15. Effectiveness
โข Must not be impossible in practice or excessively difficult to exercise EU law
rights
โข What happens if a request for environmental information is made under FOI?
โข Usually happens because requester is unaware that they have to identify the AIE
Regulations in their request (a provision not found in the Directive or AC)
โข Compare England where FOI/EIR integrated
โข EU law rights are denied in this case:
โข Fully/partially exempt bodies
โข More exemptions, lower threshold of harm
โข Class exemptions
โข No public interest balance in some cases
โข Search and retrieval fees
โข No emissions override
โข No route to CJEU
โข All because the requestor doesnโt say the magic words
16. What is environmental
information
โข Vexed question when the information is not intrinsically
environmental โ 3(1)(c)
โข Not environmental information?
โข Procedural actions taken by public authorities in response to ACCC
communications
โข National broadband plan to deliver wired or wireless infrastructure to
97% of land area of the country
โข Location and other details of development land owned by NAMA
โข Lobbying on energy and infrastructure matters
โข Consideration of legal aid for environmental litigation
โข Identity of the purchaser of large tracts of state owned forestry to be
used for industrial purpose (e.g. wind farms, data centre, holiday camp)
โข Designation of competent authority for airport noise regulation
โข Decision maker not asking themselves โis access to this
information consistent with the purpose of the Directive/ACโ (See
UK CoA in Henney and UKUT in Cieslik)
23. Issues in public authorities โ
systemic failure to apply the law
โข Not environmental information โ almost by default and
attempt to divert request into FOI
โข Deemed refusals
โข No search
โข Missing parts of decision
โข No reasons
โข No reference to contents of the information
โข Reliance on exemptions outside of Regulations (e.g.
commercial sensitivity, FOI Act)
โข Confusion with FOI Act
โข No framework for active dissemination
24. Issues at OCEI Stage
โข Baffling procedures โ not really adversarial or investigative
โข Traps for the unwary โ unintentional narrowing of the request, clarification of
scope may be treated as a new request without any notice
โข Submissions of public authority not disclosed - ever
โข Often these are the only reasons put forward
โข In many cases these are the โReal reasonsโ
โข Powers never used โ particularly power to produce information
โข โI am pleased to report that I had no need to apply these powers in 2017โ
โข Delay
โข Threshold issues
โข Narrow literal interpretation of AIE Regulations/not engaging in purposive
interpretation
โข Decision that refusal not justified but still no access to information
โข No mandate on active dissemination
25.
26. What does this mean?
โข Admin review is equivalent to internal review and
must be expeditious i.e. should be completed in
within 1 month
โข Court procedure has same standard of review as
administrative review โ so it must be a de novo
review, consider the information and decide
whether or not to order release.
27. Issues at Judicial Stage
โข Standard of review read across from Deely (FOI case) into AIE Regulations
without reference to Directive or its purposes.
a) Primary fact not set aside unless no evidence
b) Unreasonableness test for inferences drawn
c) Inferences can be reversed if incorrect interpretation of documents
d) Incorrect interpretation of the law is a ground to set aside a decision
โข In practice this means either refusal upheld or remitted back to CEI for further
consideration
โข In practice, court does not consider requested information (despite point (c) of
Deely)
โข Confirmed in Minch (High Court) โ โThere is no procedural or legal basis on
which I could hear evidence with regard to the Report and the approach urged
by the applicant would involve my engaging in an exercise.โ
โข Public authority may not participate โ no obligation to put evidence on affidavit
โ how do we know PA is telling the truth or making full disclosure?
โข We need something similar to UKFTT and/or UKUT which is a low cost
jurisdiction but with full judicial procedures incl. sworn evidence, review of fact
and law, cross examination etc.
28. Litigation costs
โข Special costs rules โ section 5 EMPA 2011 โ one
way cost shifting โ makes litigation relatively risk
free for requestor
โข Much simpler and no qualifications as are found in
section 4 (enforcement type actions)
โข Not yet tested in courts
โข Issue primarily is that litigation seems to be
prohibitively expensive for the CEI
29. Outlook
โข Friends of the Irish Environment v. CEI (Courts Service) โ Whether
the courts service is a public authority for the purpose of access
to the litigation file in completed cases
โข R2K v. CEI (IBEC) โ whether information on lobbying on
infrastructure and energy policy is environmental information
โข R2K v. CEI (Raheenleagh) whether a wind farm subsidiary owned
jointly by public authorities ESB and Coillte is a public authority
โข Redmond v. CEI (Coillte)โ whether information on the sale of
forestry to a private individual by Coillte is environmental
information
โข R2K and Ireland โ Communication to the ACCC โ delays in
administrative review indicate non-compliance by Ireland with AC