On 20 April 2021, the High Court directed that the Commissioner for Environmental Information ("the Commissioner") is to reconsider a decision that allowed RTÉ not to release documents on how it reports on climate change. Mr Justice Max Barrett found the Commissioner was incorrect in finding that the broadcaster was not obliged to process a freedom of information request.

Background

The case was brought before the courts by Right to Know CLG ("RTK") a voluntary not-for-profit organisation set up by people in the media who believe in making more documents available in respect of how Government and public resource allocation decisions are made. It sought access, under the Access to Information on the Environment legislation, to information in the possession of RTÉ in 2018, relating to how RTÉ reports on climate change issues. RTÉ rejected its request for documents on the basis that the records requested were deemed not to be "environmental". RTK appealed this decision to the Commissioner, who holds an independent statutory office which reviews decisions on access to environmental information by public bodies.  On appeal, the Commissioner upheld RTÉ's decision. RTK appealed this decision to the High Court, and RTE was a notice party to the proceedings.

Reasoning behind the Commissioner's decision

The Commissioner, in setting out the basis for his decision in respect of RTÉ's refusal to process RTK's request, stated that, among other things, broadcasting or reporting is not a "measure or activity" as defined by the regulations. He also said broadcasting or reporting is not a plan, policy or programme with proposed actions that are likely to affect the environment or an activity, akin to the submission of a statement of views by a public authority in planning permission proceedings. The Commissioner concluded that RTÉ's function is carried out by the exercise of press freedom, which is regarded as an important constitutional and European Convention right.

Decision of Mr Justice Barrett

Mr Justice Barrett found that the Commissioner fell into legal error in his decision and ordered it to be set aside. He sent the matter back to the Commissioner for fresh consideration. The Commissioner is required to deal with information requests in accordance with European Communities Access to Information on the Environment Regulations 2007-2018.

Mr Justice Barrett said the question that arose in this case was whether a bundle of emails in RTÉ's possession were environmental information under the regulations. RTÉ said they were not environmental information but merely public correspondence and feedback. The RTK group had also sought access to documents related to the creation of policies and guidelines on climate change reporting, for which RTÉ said it had no records.

Mr Justice Barrett found that the Commissioner erroneously concluded, contrary to the regulations and to previous European and national decisions, that broadcasting on climate change was not a measure affecting or likely to affect the environment. He also found that the Commissioner erroneously subjected RTÉ's emails to an environmental impact threshold test contrary to an express finding in a previous European case. Mr Justice Barrett further noted that the Commissioner erroneously concluded that broadcasting on climate change by the national broadcaster is not capable of affecting the environment through its impact on public behaviour.

The Commissioner must now consider afresh the decision of RTE to reject RTK's request for release of records. Judge Barrett also stated that, the RTK group had an "answerable case" to be awarded costs, but he said he would hear from the parties at a later date in relation to this.