Introduction

The EC (Access to Information on the Environment) Regulations 2007, which implement EU Directive 2003/4/EC, set out a number of significant provisions on the public’s right of access to information on the environment.  This note looks at the Irish regulations, the underlying EU directive and a number of related matters.

The EU Directive

Directive 2003/4/EC on public access to environmental information (the Directive) aims to ensure that information on environmental matters is made widely available to the public.

The Directive provides that an applicant for such information need not state their interest, and the information must be made available within one month of the request being received. A period of two months may be allowed if the information requested is particularly complex or voluminous. While access to and examination of public registers and lists must be free of charge, authorities may make a reasonable charge for the supply of environmental information.  

Requests for information may be refused for various stated grounds. A notification stating the reasons for the refusal must be sent to the applicant within one month. The grounds for refusal include that:-

  • The public authority does not hold the requested information;
  • The request is unreasonable;
  • The request is too general;
  • The request concerns internal communications; and
  • Disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities or of commercial or industrial information, public security or national defence, the course of justice, intellectual property rights, the confidentiality of personal data, the interests of the person who supplied the information on a voluntary basis, or the protection of the environment.
  • However, these general grounds for refusal are not applicable in all cases. In the particular case of emissions into the environment, Article 4(2) of the Directive restricts the grounds on which member states may refuse an application for information. Such an application cannot be refused on grounds of confidentiality of the proceedings of public authorities, the confidentiality of commercial or industrial information, the confidentiality of personal data, the interests or the protection of any person who has supplied the requested information on a voluntary basis, or the protection of the environment to which such information relates.  

Irish Transposition of the Directive - The AIE Regulations and the AIE Amendment Regulations

Ireland was obliged to implement the Directive by 14 February 2005, but failed to do so until 1 May 2007, when the EC (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007) (the AIE Regulations) came into force.

The AIE Regulations strengthen the right of access to environmental information. A request for information may be made by any natural or legal person, without stating any reason. The information covered by the AIE Regulations includes information on air quality, water quality, noise, radiation, waste, and information on policies for environmental protection. Provision is made for the review of refusals by public authorities to provide requested information:  The Commissioner for Environmental Information (an additional official role of the Ombudsman) is the review body in this regard. There is also provision for appeal to the High Court, but only on a point of law.  

The AIE Regulations operate in parallel with the Freedom of Information (FOI) Act 1997. This means that there are two systems in place dealing with environmental information held by public authorities, and that a requester of information has a choice as to which system to use. An advantage of the AIE Regulations is that the definition of “environmental information” is broader than the definition under the FOI Act. Further, a wider range of public authorities are caught by the AIE Regulations, as the AIE Regulations do not prescribe a list of public authorities that are subject to the AIE regime. Where there is a dispute as to whether a body is a public authority, the person making the request can appeal the issue to the Commissioner. Also, unlike under the FOI Act system (where there is a fee of €15, discounted to €10 for medical card holders, payable upfront), there is no initial fee payable under the AIE Regulations. Where an applicant is dissatisfied with the response, an application must first be made for an internal review by another officer of at least the same rank as the officer who refused the request (the internal review is free in respect of the AIE regime; a fee of €75, discounted to €25 for medical card holders, applies under the FOI regime). Only following an appeal may an appeal be made to the Commissioner. The fee for making an appeal of the public authority’s decision to the Information Commissioner / Commissioner for Environmental Information is the same (€150, discounted to €50 for medical card holders) under both systems. The 2011 Annual Report of the Commissioner for Environmental Information notes that the level of activity under the AIE Regulations is low. In 2011, the Commissioner received only 13 appeals. The Commissioner ascribes this low level of activity to a general lack of public awareness regarding their rights under the AIE Regulations, and the €150 charge to make an appeal.

The AIE Regulations have recently been amended by the European Communities (Access to Information on the Environment) (Amendment) Regulations 2011, S.I. No. 662 of 2011 (the AIE Amendment Regulations) which impose some additional obligations on public authorities. The AIE Amendment Regulations require public authorities to maintain a register of environmental information which is up-to-date and accurate.  No fee may be charged to view this register. However copies may be charged for.  Additionally, the Minister is required to publish an indicative list of public authorities which are subject to the AIE regime which must be publicly available in electronic format.  The AIE Amendment Regulations also require that, in the event of an imminent threat to human health or the environment, public authorities must disseminate all information held by it which could enable the public likely to be affected to take measures to prevent or mitigate harm.  

The AIE Amendment Regulations also provide increased protection for third parties who provide information to public bodies on a voluntary basis by a third party, and in the opinion of the public authority release of the information may adversely affect the third party.  In such circumstances,  the public authority must seek to take all reasonable efforts to contact the third party concerned to seek consent or otherwise to release the information.  The AIE Amendment Regulations further provide that a third party who may be incriminated by the disclosure of any environmental information can appeal to the Commissioner against the decision of the public authority concerned. In relation to the appeal process, the AIE Regulations are amended to provide that the Commissioner may deem an appeal to be withdrawn if the public authority makes the requested information available prior to a formal decision of the Commissioner.  In such an instance, the Commissioner may waive or refund the appeal fee.  Where an appeal is withdrawn by an appellant, the Commissioner may waive all or part of the appeal fee.

Access to Information on the Environment versus Cabinet Confidentiality

On 4 June 2010, the High Court overturned a decision by Ombudsman, Emily O’Reilly, in her additional official role as Commissioner for Environmental Information, thereby ruling that Cabinet confidentiality - a principle enshrined in the Irish Constitution - is not superseded by the disclosure requirements of the Directive. Cabinet confidentiality prohibits the publication of Cabinet documents for 30 years.  

Background

A request for documents relating to certain Cabinet discussions on greenhouse gas emissions was made by barrister and Green Party representative Gary Fitzgerald in March 2007. The Department of An Taoiseach (the Department) agreed to release eight documents, but withheld others, including one document that was a note of comments made at a Cabinet meeting on 24 June 2003.

Mr. Fitzgerald appealed against this refusal. The Department argued that such documents were “specifically excluded from disclosure” by the principle of Cabinet confidentiality, and also by the AIE Regulations. Article 10(1) of the AIE Regulations (by way of transposition of Article 4(2) of the Directive, mentioned above) provides that “a request for environmental information shall not be refused where the request relates to information on emissions into the environment.” However, Article 10(2) of the Regulations goes on to restrict this general imperative by stating that it does “not include a reference to any discussions on the matter of such emissions at any meeting of the Government.” The Directive includes no such express exception for Cabinet discussions, and on this basis Ms. O’Reilly ordered the documents to be released in October 2008.

The Department issued High Court proceedings on 8 December 2008 to judicially review the decision of Ms. O’Reilly.

An Taoiseach v Commissioner for Environmental Information (High Court, O’Neill J, June 4, 2010)

Mr. Justice O'Neill in the High Court found that Ms. O'Reilly had no jurisdiction to decide that the effect of the AIE Regulations was at odds with the provisions and stated intent of the Directive. It was for the courts to decide whether Article 10 of the AIE Regulations was inconsistent with the Directive.

Mr. Justice O’Neill stated that the issue central to the case was whether the Commissioner was entitled to disapply Article 10 of the Regulations and Article 28 of the Irish Constitution (guaranteeing the confidentiality of Cabinet discussions), so as to give direct effect to the Directive, which did not contain a similar express exclusion regarding Cabinet confidentiality. He found that if this were the case (i.e. if the Commissioner was indeed entitled to disapply the AIE Regulations), then this would result in EU rights “enjoying a degree of procedural supremacy which not only far exceeds that available to similar actions based on national law but virtually eliminates procedural safeguards for rights and duties based on national law”. He re-affirmed the supremacy of EU law over national law where a conflict exists, but stated that the choice was left to member states to determine procedures for the enforcement of EU law subject to the principles of equivalence and effectiveness. He concluded that in transposing the Directive, the State is entitled to establish a procedure for dealing with claims for disclosure of environmental material and for refusals of same.

Ultimately, Mr. Justice O’Neill found that discussions at Government meetings were “internal communications” within the meaning of Article 4(1)(e) of the Directive, which sets out discretionary exceptions to the requirement of disclosure, and allows member states to refuse disclosure if a request concerns “internal communications, taking into account the public interest served by disclosure”. Having reached this conclusion, he held that there was no conflict between the disputed provisions of the AIE Regulations and the Directive.

The Commissioner has appealed this decision to the Supreme Court.

The 2011 Annual Report of the Commissioner highlights the broad approach the Commissioner takes to the interpretation of the Regulations.  

Definition of “Environmental Information” under the Regulations

In the case of CEI/10/0018, the Commissioner directed Irish Rail to release information to an applicant in relation to the speed restrictions operating on the Irish Rail network. The Commissioner took the view that the speed of a train is a “factor” which affects or is likely to affect the elements of the environment.  Among the issues still under consideration by the Commissioner is the scope of the definition in the context of a request to Dublin City Council (the Council) for a full copy of the contract for the construction and operation of the Poolbeg incinerator. The Council initially refused the Commissioner’s request for a full copy of the record concerned due to concerns relating to a confidentiality agreement. The Commissioner invoked her power under Article 12(6) of the Regulations to require a public authority to make environmental information available to her and received a copy of the contract from the Council.

Definition of a “Public Authority” under the Regulations

The Commissioner assessed the interpretation of “public authority” in two cases in 2011: CEI/10/0005 and CEI/10/0007. The applicant (the same individual in both cases) made certain requests to the National Asset Management Agency (NAMA) and Anglo Irish Bank (the Bank) for environmental information that were refused on the grounds that the body concerned did not consider itself to be a “public authority” within the meaning of the AIE Regulations.

The term “public authority” is defined in Article 3(1) of the AIE Regulations and Article 2(2) of the Directive. Paragraphs (a) to (c) of Article 3(1) correspond to the definition in the Directive, but unlike the Directive, Article 3(1) then adds: “and includes” certain entities listed at subparagraphs (i) to (vii). At subparagraph (vi) is “a board or other body (but not including a company under the Companies Acts) established by or under statute”. Subparagraph (vii), in turn, includes “a company under the Companies Acts, in which all the shares are held-(I) by or on behalf of a Minister of the Government”. NAMA and the Bank argued that paragraphs (a) to (c) must be treated as qualifying conditions for meeting the public authority definition, notwithstanding the use of the phrase “and includes” in the Regulations.

The Commissioner held that “includes” is ordinarily a word of expansion under Irish law. Accordingly, the Commissioner interpreted the term “public authority” to extend to all the types of entities included at the list at subparagraphs (i) to (vii) regardless of whether such entities would also be captured by the categories at paragraphs (a) to (c). The Commissioner held that NAMA and the Bank are public authorities as they meet the criteria set out in subparagraphs (vi) and (vii)(l) respectively.

These decisions have been appealed before the High Court.  In order to reduce costs the Bank has stayed its proceedings pending the outcome of the NAMA action.