In October 2008 the Information Commissioner, Emily O'Reilly, ordered that the Department of the Taoiseach allow access to documents relating to cabinet discussions on greenhouse gas emissions. This was as a result of an appeal from Gary Fitzgerald, a green party candidate and barrister, to the refusal of the Department to release same on the grounds of cabinet confidentiality, which is specifically provided for in the Constitution. It prohibits publication of such documents for 30 years.
The Government issued judicial review proceedings in the Irish High Court on 8 December 2008 appealing the Information Commissioner’s decision. This case may prove to be an extremely interesting and important one in terms of the limits of cabinet confidentiality. The Court will be faced with resolving the apparent conflict between the terms of the Directive, and the Irish implementing Regulations which preserve Cabinet Confidentiality as an exception. The purpose of the Directive is to establish a general right of access to the public to access to information on the environment and, whilst that right is not absolute, the Directive specifically provides that any request for information on ‘emissions into the environment’ cannot be refused. In contrast the Regulations provide that a request for information on ‘emissions into the environment’ can be refused in respect of cabinet discussions (presumably to take into account the Constitutional provision).
If the Court takes the same view as the Information Commissioner and dismisses the Government’s appeal it will constitute a significant erosion of the 30 year rule of cabinet confidentiality, as ‘emissions to the environment’ covers a wide range of areas.
A decision is not expected until late 2010.