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A key case on access to environmental information from public service broadcaster RTÉ has been referred to the Court of Justice of the EU (CJEU).

Using the Access to Information on the Environment (AIE) Regulations, Right to Know had sought copies of any overarching guidance that issued to reporters on how to cover the climate crisis as well as feedback from members of the public on their coverage.

Although RTÉ said there was no guidance and released some of the feedback, they have disputed that they are a “public authority” for the purposes of environmental info requests.

They have argued it could compromise press freedom even though the records sought would have no impact whatsoever on journalistic work or research.

However, the case has raised a Europe-wide question over whether public service broadcasters across the European Union should have to deal with such requests.

As part of the case, RTÉ gathered information from other EU broadcasters showing some were open to requests and others believed they were not.

There was roughly a one third/two thirds split with 8 (and a half*) saying they were subject to AIE and 18 (and a half) arguing they were not.

However, public service broadcasting is radically different in member states in terms of how it is funded and operated.

The High Court has now ruled, quite sensibly in our view, that the case should be referred to the Court of Justice of the EU.

The introduction to the judgment by Justice Richard Humphreys sets up the core question of the case very well.

He wrote: “How should the law balance the right of access to environmental information, which is particularly important in relation to the problem of false balance in media coverage of the climate emergency, with the right of public broadcasters to exercise their press freedom?”

The judgment is lengthy but can be summarised in a few key questions (somewhat simplified for reasons of space):

• Is RTÉ a public authority for the purposes of requests made under the AIE Regulations?
• Does a public authority have a duty to create a new record when answering an AIE request?
• Is there a question over the procedures of the Commissioner for Environmental Information in dealing with requests in an expeditious manner?

Justice Humphreys concluded: “For the foregoing reasons, it is ordered that: the identified questions be in principle referred to the CJEU.”

You can read the full judgment below.

* The reference to ‘half and half’ of a broadcaster is from Denmark where the entity Danish Broadcasting is treated as a public authority whereas the TV station TV2 is not.

Dublin Airport’s authority, the daa, has lost a case where it sought to withhold access to records over discussions on the use of private jets.

Using the AIE Regulations, Right to Know had sought copies of any representations received by the daa over proposals for ending business aviation flights at Dublin Airport.

In a decision, the daa refused access to seven records saying the records were confidential and that they related to the “course of justice.”

The decision is one of many where Dublin Airport’s management has sought to apply a blanket exclusion to all records relating to the controversial passenger cap at the airport.

In seeking review, we specifically asked the Commissioner for Environmental Information (CEI) to make a binding decision rather than send it back to the daa.

However, the CEI has given the daa another chance to make a proper decision, something we believe is being used by management of Dublin Airport in a tactical way to frustrate requests for environmental information.

Nonetheless, the decision does make clear the daa cannot withhold all records on the passenger cap.

The decision said: “I must remind daa that the fact that information may relate to ongoing legal or statutory proceedings does not, in and of itself, establish that its disclosure would adversely affect the course of justice; otherwise the AIE Regulations would provide for a class-based exemption for such information, which they do not.”

It also highlighted the very poor quality of the daa decision and the “distinct lack of reasons” provided for claiming the records were confidential.

The CEI was critical too of the application of a time extension by the daa in a case where just a small number of records were involved.

The investigator wrote: “[The daa] has not given an explanation as to why it considers this a complex request, and neither the original decision or internal review decision give any indication as to why this
would be the case.”

Sidenote: For almost all requests made to the daa, extensions are being sought no matter how much or little information is involved.

You can read the full decision below:

The Standards Commission (SIPO) pleaded with government not to be put in charge of proceedings where ex-ministers, special advisers or other public servants did not stick to rules around a “cooling off” period before becoming a paid lobbyist.

In correspondence with the Department of Public Expenditure, SIPO said plans to leave enforcement up to them instead of the courts were “completely unworkable.”

They warned that there was a “high litigation risk” and that offences related to cooling-off periods would be better dealt with through the court system.

The Department of Public Expenditure rejected this approach however, saying that dealing with it as a criminal matter could have a “chilling effect.”

Records show how SIPO told the government that plans for amended legislation on the regulation of lobbying were fraught with difficulty.

They said they were already struggling with a lack of resources and adding to their work would “heighten the risk of under-resourcing, and of error, in relation to [their] portfolio as a whole.”

SIPO also argued there was little reason to keep the process outside of the legal system as each case was likely to be appealed anyway.

An email from the Director General of their office Elaine Cassidy in March 2022 said: “Given the financial and reputational impact on the individual, one might anticipate an appeal to the Circuit Court on almost every occasion.

“This would result in the Commission engaging in a legal procedure, with processes and safeguards aimed at ensuring procedural fairness in order to be defensible, only to defend a full re-hearing of the same issue before the Circuit Court.”

Ms Cassidy said that while she hoped SIPO would be able to defend any appeal, some losses were “almost inevitable.”

“[This] would have both a reputational and financial impact on the Commission,” she wrote.

Asked about the records, which were only released following an FOI appeal to the Information Commissioner, SIPO said they had nothing further to add.

You can read the decision in the case at this link.

RTÉ has lost an FOI case where it sought to withhold details of spending on wardrobe and clothing.

In refusing access to the information, the public service broadcaster said the material was exempt under a carve-out in the FOI Act that protects editorial decision-making.

They claimed decisions over clothing were “a strong visual indicator of tone and character” in their work.

RTÉ said wardrobe, including “potential style and colour choices for programmes, presenters, politicians etc” was an important part of the editorial planning of a programme.

In a decision, the Information Commissioner said that if RTÉ’s arguments over expenditure were correct, it “would be very difficult to identify any information relating to” their finances that was not exempt under the FOI Act.

The investigator wrote: “The records at issue are not concerned with such [editorial] processes. They are simply records of financial transactions in respect of wardrobe.”

RTÉ also tried to claim that some of the information was personal as it could identify individual members of staff for whom clothing was bought.

The Information Commissioner also rejected that argument.

“It seems to me that the purchase of particular items is essentially linked to the particular programme or the role of the correspondent and is not concerned with the personal circumstances of any individuals,” the decision said.

“I certainly do not accept that details of amounts paid by RTÉ on unspecified wardrobe items comprises information relating to the employment or employment history of the individuals who may use those items.”

A briefing for the boss of the IDA said the €13 billion Apple tax judgment against Ireland was “not reputationally damaging, although unfortunate.”

Speaking points prepared for CEO Michael Lohan said feedback from international clients suggested it had not changed the perception of Ireland for investors.

Mr Lohan “if pushed” on what the Exchequer should do with the tax windfall was advised to recommend “continued investment in infrastructure” to help attract foreign direct investment (FDI).

The briefing said there had been constraints in “supply and planning” and this might be an area the government could look to as it spent the funds.

The speaking points were prepared for Mr Lohan in September after the European Court of Justice ruled Ireland had given Apple illegal tax advantages.

Mr Lohan was told the judgment should be put in context as an “historical case” and one that needed to be looked at through a “different prism.”

It said it related to just a single company and that tax was only one of the many reasons foreign firms came to do business in Ireland.

The speaking notes then suggested the IDA CEO should “pivot to all the reasons why companies invest.”

It said Ireland did not give preferential tax treatment to any company and that this was “the government position and that of IDA Ireland.”

A county council was able to buy an historic house and gardens for €10 million after being told it could fetch as much as €15 million on the open market.

South Dublin County Council bought Lucan House and Demesne from the Italian government this year with a view to transforming it into a visitor attraction along the banks of the River Liffey.

A private real estate company had told the owners it could have secured a price of between €12.5 million and €15 million in an auction.

However, a deal was struck for €10 million – which was €500,000 less than a valuation given in an independent assessment by Dublin City Council’s Valuation Office.

This said Lucan House and Demesne was made up of a Palladian country house of over 15,000 square feet along with a boathouse, a stable block, two gate lodges, worker cottages, and “other structures of archaeological note.”

The property itself covers around thirty acres along the banks of the River Liffey and even has a small island in the river connected by an iron footbridge.

The valuation said that South Dublin County Council should seek agreement on “the inventory of fixtures, fittings, furniture, and art” inside Lucan House, which were also of considerable value.

It said: “There is scope perhaps, for the council to purchase certain bespoke items of intrinsic historical value, which would support and enhance the future use of this important heritage property.”

The valuation said a similar Palladian mansion, Seafield House in Donabate, North Dublin, had achieved a sale price of over €9 million.

“Smaller property, inferior location, layout and scale of rooms not as impressive. Doesn’t have the same architectural prestige,” it said.

One of the country’s largest hospitals warned of the danger of a “catastrophic technical failure” of their computer systems after an IT glitch caused chaos during the summer.

The Mater Hospital was hit by a failure of their patient record computer system in July which led to the cancellation of surgeries and a plea to the public not to attend its emergency department.

A report prepared in the aftermath said the hospital’s PatientCare records system was beyond “end of life” with no technical support available for critical elements.

It said: “Services were affected for the entirety of the outage; this included an unknown level of harm to the patients.

“No assurance can be given that [the] system will not fail at any point into the future. Furthermore, if the failure is in one of the unsupported elements of the system, the failure may be unrecoverable.”

The report detailed how July’s IT outage left the hospital exposed as medics were forced to revert to the use of paper files without access to electronic records.

It said that sixty procedures – including thirty-two surgeries – had to be deferred including “time sensitive urgent care.”

The report added: “Support for outsourcing surgical activity in the private hospital system was denied by the HSE.”

Asked about the outage, a spokeswoman said: “[The hospital] worked as quickly as possible to rectify the situation, but some patients were affected, which the Mater Hospital regrets and apologises for.

“The hospital has been working for some time with the HSE to update and replace the existing ICT system and it is now part of the programme to introduce a new National Electronic Health record.

“Pending that new system being in place, the Mater Hospital has instigated a range of measures to mitigate against future systems failures.”

Justice Minister Helen McEntee was told jails had no capacity to safely accommodate a sudden rise in prisoners following “widespread public disorder” because of record levels of overcrowding.

The minister was warned that the appointment of extra judges and increased court sittings could also lead to the system becoming even more overwhelmed.

With record numbers of people in custody, a department submission said: “Operating above capacity has become an unwanted standard in 2023 and into 2024.

“This has considerable negative impact on safety and the functioning of the prisons, but it should also be noted that the Irish prison estate currently has no space to safely accommodate any sudden surge in its population.”

It said this type of ‘surge’ could happen in the event of public disorder, such as the widespread racist rioting and looting that took place in Dublin last year, or from increased activity in the courts.

In another briefing, Ms McEntee was told that inappropriate conduct by a small minority of prison staff had led to unsafe acts and conditions in jails.

Ms McEntee was advised that “unethical, and in some cases, unlawful behaviour” by employees was being tackled.

One briefing said enhanced supervision and appropriate support for staff with “declared issues” had been introduced by prison management.

The justice minister has been repeatedly briefed on Ireland’s creaking jail system this year, with prisons frequently operating at above 100 percent capacity.

One document earlier this year said: “The prison service considers that the population should not go above 95 percent … of the total capacity. Going above this risks the safety of staff and prisoners alike.”

Asked about the records, which were released to Right to Know under FOI, a Department of Justice spokesman said significant capital funding had been made available to provide extra prison spaces.

He said: “The Irish Prison Service continues to engage with the Department of Justice to progress plans to bring on stream accommodation for over 1,100 prisoners between 2024 and 2030.

“Budget 2025 provides funding of €525m for the prison system. This is an increase of €79m or 18 percent on 2024 funding.”

Right to Know has won a case where we sought records on pre-budget discussions between An Bord Pleanála (ABP) and its parent department under FOI.

ABP refused to release the records citing Section 40 of the FOI Act which covers release of information that could affect the “financial and economic interests of the state.”

This part of the legislation is generally used for ‘macro’ level information of a type that might be held by the Department of Finance.

At internal review, we told An Bord Pleanála they were misinterpreting the FOI Act and how Section 40 was intended to work.

They upheld the decision.

We appealed to the Information Commissioner who also said An Bord Pleanála appeared to be “misunderstanding” how the exemption worked.

The decision said: “At no point in its submissions to this Office has ABP identified how the conduct of general commercial activity in the State could be disrupted by the release of the records at issue.

“Having considered the matter, it is also not evident to me how the release of 2024 budgetary projections for ABP could reasonably be expected to result in an undue disturbance to the ordinary course of business in the State.”

The case unfortunately highlights one of the glaring weaknesses of how FOI works in that the appeal process can be very lengthy.

The records at the heart of this decision relate to Budget 2024 and have now been superseded by similar correspondence that would have been generated ahead of Budget 2025.

We have sought a copy of the newer records this week and hopefully it won’t take quite as long to get sight of them.

You can read the full decision below.

The Office of Public Works (OPW) was hoping the €336,000 bicycle shed at Leinster House could become a model design to be adapted and reused at other historic properties.

New documents also detail how the OPW looked at prefabricated shelters for the parliamentary complex but “none were found suitable for [the] location.”

An architectural heritage impact assessment said the project was proving a “challenge” because of its sensitive historic location.

It said the bike shed needed to be “carefully treated and considered,” so as not to ruin vistas of Leinster House, the National Gallery or the Natural History Museum.

The assessment said the Oireachtas had also asked for the shelter to be “visible” to the public to help “demonstrate leadership in this sustainability action.”

However, the project was beset by delays and ended up costing €335,000, expenditure described as “inexplicable and inexcusable” by Taoiseach Simon Harris.

The chairman of the OPW John Conlon told an Oireachtas Committee last week the cost was “extraordinary” and wasteful public expenditure is likely to be a key issue in the general election.

Records released by the Oireachtas under FOI laws describe how several possible sites were looked at for the project including one that was dismissed on security grounds and garda advice.

The architectural assessment said: “The structural element of the shelter is to be as visually light as possible and of good quality material.

“This design could be adapted and used in other heritage properties. The rain screen will be glazed for least visual impact.”

It also said the shed needed to be “reversible” so that the main part of the shelter could be moved to a different location if needed in the future.

“The design should allow for the shelter to be extended without significant alterations to the existing structure,” said the report. “Shelter should be easy to maintain and repair.”

The assessment said the installation would be for 18 stands, catering for 36 bicycles, and “beneath a bespoke steel-framed, glazed canopy.”