The Information Commissioner published her annual report for 2012 yesterday. It’s worth a read to see some of the highs and lows of the Freedom of Information and Access to Information on the Environment regimes in Ireland in 2012.
One note in relation to AIE caught our eye. The Commissioner in her role as Commissioner for Environmental Information noted that:
My Office’s appeal to the Supreme Court against the judgment of Mr. Justice O’Neill in An Taoiseach v. Commissioner for Environmental Information (Case CEI/07/0005) is still pending.
This is an interesting case for a number of reasons including the issue that it raised as well as the length of time that it is taking to reach a final binding decision.
The appeal was lodged on March 2007 with the Commissioner; it being only the second appeal to be dealt with by the Commissioner (there have been more than 80 in total since 2007). The Commissioner found in favour of the requester, but that decision was appealed to the High Court where it was overturned. The Commissioner subsequently appealed to the Supreme Court where the matter is still pending more than six years after the request for information was first made.
As regular readers may be aware article 9(4) of the Aarhus Convention guarantees a judicial review process that is fair, equitable, timely and not prohibitively expensive. As we argued in NAMA -v- Commissioner for Environmental Information it is hard to see how the State and the EU have vindicated Irish citizen’s rights under Aarhus when final court decisions are taking in excess of six years to be delivered.
The second point relates to the Irish transposition of Directive 2003/4/EC on public access to environmental information. Under Aarhus and the Directive information relating to emissions into the environment may not be exempt (except under administrative exemptions such as unreasonable request, internal discussions etc.). This ensures that the public can access this information to a greater extent than non-emissions related information bearing in mind the interest the public has in accessing this type of information. Emissions are defined broadly in the Aarhus implementation guide: “direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources in the installation into the air, water or land.” (page 60)
However when Ireland transposed this Directive it qualified this mandatory disclosure of emissions-related information by excepting cabinet discussions (see Articles 8(b) and 10(2) of the AIE Regulations). This qualification does not appear to have any basis in either the Convention or the Directive.
Mr Fitzgerald sought access to a range of cabinet documents concerning greenhouse gas emissions but the appeal was narrowed to a single note of a cabinet discussion that related directly to such emissions.
The Commissioner was of the opinion that the cabinet confidentiality exception although made under Article 28 of the Constitution was not permitted under the Directive and that since the Directive met the criteria for direct effect under EU law she should apply the Directive to the request. She allowed the request and ordered the Government to release the information.
The decision was appealed to the High Court which held in June 2010 that the Commissioner did not have the legal power to interpret the Regulations beyond its terms including the power to give direct effect to the terms of the directive. The Court further held that in any event the information requested was also exempt under the internal discussion exemption.
The Commissioner appealed this decision to the Supreme Court where it is now pending for three years, in total more than six years after the original request was made. In that time the Commissioner’s office has disposed of 80 further appeals.