NAMA vs OCEI Supreme Court judgment

Here is a copy of the judgment in NAMA vs Commissioner for Environmental Information, given this morning.

Our statement:

“We welcome the decision of the Supreme Court today finding that NAMA is a public authority subject to the Access to Information on the Environment Regulations 2007/2011. We are thankful that the Office of the Commissioner for Environmental Information agreed with our interpretation of the law when it made its initial decision in 2011, and subsequently defended that decision through the courts.

We regret that NAMA did not handle the issue better at the outset -as the ruling itself noted – and that it has taken nearly 2,000 days for what was a preliminary matter to be decided, involving significant expenditure of public money. However the public now has greater clarity on the applicability of the Regulations, and the public’s right to know has been broadly vindicated by the Supreme Court. We look forward to NAMA fully implementing its obligations under the AIE Regulations 2007/2011.”

The key paragraph:

If the law stood as it was at the time of the High Court’s decision I would have considered it necessary to refer a question to the ECJ as to whether a body such as NAMA was a public body for the purpose of the exercised public administrative functions. The definition section of the Directive is unclear, and it is also necessary to consider the Aarhus Convention. However the decision in Fish Legal provides an authoritative interpretation of the Directive, and moreover does so in the context of a common law system. Applying that test it is clear that NAMA is indeed a public authority exercising public administrative functions. Although like the water companies in Fish Legal, it is obliged to act commercially, it is undoubtedly vested with special powers well beyond those which result from the normal rules applicable in relation between persons governed by private law. If anything, the case is clearer here. The water companies in Fish Legal were companies established in private law whereas NAMA is established pursuant to a statute which confers upon it substantial powers of compulsory acquisition, of enforcement, to apply to the High Court to appoint a receiver and to set aside dispositions. The Act also restricts or excludes certain remedies against NAMA. The establishment and operation of NAMA is a significant part of the executive and legislative response to an unprecedented financial crisis. The scope and scale of the body created is exceptional. Indeed if it were not so it would not be in a position to carry out the important public functions assigned to it in the aftermath of the financial crisis. Accordingly, for the reasons set out above, I would dismiss the appeal.



NAMA decision imminent

Back in February 2010, we sent a request to NAMA seeking certain information under the Access to Information on the Environment (AIE) Regulations. NAMA had just been established. We sent a similar request to Anglo Irish Bank. Both rejected our requests on the basis that they did not see themselves as public authorities under those regulations. We disagreed.

For 5 years the case has wound its way through the system, from a Commissioner ruling in September 2011 (which went in our favour), to High Court hearings in 2012 and two High Court judgments in early 2013 (the judge ruled against NAMA on both the substantive issue and on the issue of a stay, pending a Supreme Court appeal). We had to seek, and were granted, an expedited hearing after NAMA appealed both. There were almost two days of hearings in the Supreme Court in 2014, before five judges.

On June 23 they will issue their judgment.

The issue to be decided, among others, is what the term “and includes” means in the Regulations, and whether NAMA/Anglo, by virtue of being listed in 3(1) under the definition of public authority at parts vi) and vii), are in fact public authorities.

If the court rules as we believe it should, then NAMA becomes a public authority under AIE, and all bodies listed in parts i) to vii) of 3(1) of the Regulations become de facto public authorities (below), and we will finally have legal clarity.

(i) a Minister of the Government,

(ii) the Commissioners of Public Works in Ireland,

(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),

(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),

(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),

(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,

(vii) a company under the Companies Acts, in which all the shares are held—

(I) by or on behalf of a Minister of the Government,

(II) by directors appointed by a Minister of the Government,

(III) by a board or other body within the meaning of paragraph (vi), or

(IV) by a company to which subparagraph (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information;

An Garda Siochana, transparency and access to information

An Garda Siochana have been subject to some significant public scrutiny of late, in terms of how accountable and transparent the organisation is.

This blog has long held the view that the force should be subject to the Freedom of Information Act. The current FOI bill before the Oireachtas contains provisions that will include the force under the Act for the first time, but only in relation to “administrative” records.

However, like we believe NAMA is subject to the separate Access to Information on the Environment (AIE) Regulations, likewise we believe An Gardai Siochana to also be subject to those regulations.

To that end, last year I sent a request to An Garda Siochana seeking certain environmental information. As the Gardai have no AIE officer (despite having an obligation to have one), I sent my request to their press office. They replied:

Applications for Access to Information on the Environment should be made to:

Information Officer,
Departmental Strategy Unit,
Department of the Environment, Community and Local Government,
Newtown Rd,
Wexford

This response demonstrates just where we are when it comes to AIE in Ireland (and our international obligations under the Aarhus Convention). The Gardai were telling me to ask the Department of the Environment about information they held, and that they were legally obliged to respond to. I politely responded:

I’ve looked at the Regulations and this matter should should be dealt with by someone at An Garda Siochana, as the Department of Environment is not related to the request.

Perhaps you could point me to the person in charge of AIE requests at An Garda Siochana?

The Department of Environment doesn’t hold the information I’m requesting (it is its own public authority, as are all other the Departments, and authorities like Coillte, the Central Bank, the ESB, Bord Gais etc).

The information you quote is actually only related to AIE requests specifically to the Department of the Environment.

An Garda Siochana is a public authority for the purposes of the Regulations, so it is obliged to answer requests for environmental information (AIE requests). The process is similar in nature to Freedom of Information requests (though I know An Garda Siochana is not yet subject to FOI).

As the authority in question, there is one month for the requested information to be released, or rejected, citing any relevant exemptions under the Regulations.

Kind regards

Precisely one month later, the force responded to my request, and refused access citing “national security” and commercial sensitivity. I immediately appealed to internal review, as is my right under AIE Regulations. The Gardai failed to reply.

On the basis of deemed refusal, I then appealed to the Office of the Commissioner for Environmental Information, which then commenced an investigation into the force’s failure to respond to my request.

Following the commencement of this investigation I was then contacted separately by a member of the force at Garda HQ. On November 26 2013 I received an email stating:

I am directed by Assistant Commissioner Jack Nolan to refer to your request for a review of the decision of the Garda Press Officer following your request for information from An Garda Síochána.

The Commissioner has directed that Assistant Commissioner Nolan conduct this review. I am to advise that Assistant Commissioner Nolan is out of the country until 19 December 2013 but he would welcome an opportunity to discuss the above matter with you. In this regard I would be obliged if you could advise of suitable dates to meet with Assistant Commissioner Nolan.

This request is highly unusual, without the participation of the Information Commissioner’s office. Normally a settlement is reached via negotiation with the OCEI, not independently of it. I therefore saw little benefit to meeting with Assistant Commissioner Nolan, and replied:

Thank you for your email of November 26.

I am a little puzzled! What is the precise purpose of the meeting?

My understanding is that the OCEI has commenced an investigation following An Garda Siochana’s failure to answer an appeal for internal review in relation to an AIE request. As such I’m not sure what assistance, as the requester, I can provide in relation to the OCEI investigation.

Kind regards

To this I received no reply. The investigation is ongoing.

In light of this I then sent a second request, seeking:

1) Any and all information relating to measures carried out by An Garda Siochana to implement its legal obligations under the Access to Information on the Environment (AIE) Regulations 2007/2011. Specifically with reference to Section 5 (1) to (5) of the Regulations, what measures have an Garda Siochana carried out in particular vis-a-vis:

A public authority shall:
(a) inform the public of their rights under these Regulations and the Directive and provide information and guidance on the exercise of those rights, and
(b) make all reasonable efforts to maintain environmental information held by or for it in a form or manner that is readily reproducible and accessible by information technology or by other electronic means.,
(c) ensure that environmental information compiled by or for it, is up-to-date, accurate and comparable,
(d) maintain registers or lists of the environmental information held by the authority and designate an information officer for such purposes or provide an information point to give clear indications of where such information can be found.

Kind regards

I received a reply to this on December 19:

An Garda Síochána have responded to and are currently liaising with the Office of the Commissioner for Environmental Information. This matter is now being dealt with by the Office of the Commissioner for Environmental Information and all queries should be addressed to that office.

Incorrect, I pointed out. This was a new and separate request:

Thank you for your email.

However, this is new and separate request to the one currently under appeal with the OCEI. It was sent on November 4, and no reply was received by December 4.

There is a one month deadline to issue an internal review decision under the Regulations in relation to this request.

Kind regards

Following another month passing by, and time limits being breached, I then received a follow up email:

The formulation of a policy for An Garda Síochána in relation to its obligations under the Access to Information on the Environment (AIE) Regulations 2007/2011 has commenced.

As previously advised, Assistant Commissioner Jack Nolan is willing to meet with you to discuss whatever issues you wish to raise.

Any future correspondence in the matter should be forwarded directly to Assistant Commissioner Nolan commissioner_ST@garda.ie

Kind regards,

This response does not answer my original request. And this is where we are now. As far as I can see it is now clear the An Garda Siochana have essentially appointed Assistant Commissioner Nolan as their AIE officer, and all public requests seeking environmental information should be directed to his office.

So goes the current state of Aarhus legal obligations in Ireland. Our own police force is failing to enforce and implement a law from 2007, and amended in 2011. And if this is how they handle AIE requests, to which they’ve been subject to several years – how should we expect FOI to work in relation to them once the new bill passes?

(FYI Irish citizens can now (as of September 2013) complain about the Irish implementation of the Aarhus Convention directly to the Aarhus Convention Compliance Committee (ACCC) in Geneva)

Supreme Court grants expedited listing in NAMA case

In another turn of events relevant to Aarhus Convention and access to information nerds, today Chief Justice Susan Denham granted an expedited listing for NAMA vs Office of the Commissioner for Environmental Information (OCEI).

The AIE request in the matter was sent by me in early 2010, and 44 months later the issue at hand – whether NAMA is a public authority for the purposes of the Regulations – is still not answered. We argued that such a delay was at odds with the Aarhus Convention’s requirement for a timely judicial process. For its part, counsel for NAMA Brian Murray SC made similar arguments, saying that NAMA had a significant interest in the case and the timeliness of the process was at issue. NAMA applied for an expedited listing – in a slight change of tack from previous hearings. In a submission made in the Supreme Court case earlier this year, we put it to the court that NAMA had in fact frustrated the process by taking a narrow view of the initial request (as the High Court had determined) and had acted in bad faith.

Chief Justice Denham said that the case would be heard in this term (before Christmas) if a date became available, but failing that it would be early in the new term – most likely January or February of 2014. Increasingly the Aarhus Convention is being noted in Irish court cases, and we emphasised in our submission that the Aarhus Convention was essentially being breached due to the delays in this case.

This is the submission we handed to the Chief Justice this morning outlining arguments in relation to delays relevant to Aarhus cases.



First protective costs order under Aarhus Convention granted by High Court

Hedigan J granted a protective costs order to an applicant wishing to use Section 160 of the Planning and Development Act to prevent alleged unauthorised development at a waste facility close to her home.

Protective costs orders originate from Article 9 of the Aarhus Convention which provides that litigation in certain environmental matters should not be prohibitively expensive. This provision was implemented in Ireland through Part 2 of the Environment (Miscellaneous Provisions) Act 2011 which protects an applicant from having costs awarded against them should they be unsuccessful.

This is the first time in Ireland that such an application has been successful and importantly the Court clarified the information that should be provided to ground a motion for a protective costs order.

The Court referred specifically to Article 9 of the Aarhus Convention as well as the recent ECJ judgment in Edwards -v- Environment Agency (Case C-260/11) which clarified the meaning of prohibitively expensive under European law.

This judgment is significant not just in terms of planning law but also for access to environmental information law since persons appealing to the High Court against decisions of the Commissioner for Environmental Information may also apply for protective costs orders.

Hunter -v- Nurendale Limited t/a Panda Waste

A NAMA update

The stay on the judgment of Judge Mac Eochaidh has been continued until October 2013, where the substantive issue of “and includes” will be heard before the Supreme Court.

This is a victory of sorts, as it was quite possible that the case might not have been heard for several years – it will now be heard in just over 4 months time. We argued strongly about the right to a timely process given by the Regulations and Aarhus.

NAMA -vs- TheStory.ie

This week will see the culmination of more than three years of work on the part of TheStory.ie to try and obtain information from the National Asset Management Agency (NAMA) and Anglo Irish Bank (now the defunct IBRC) through a legal process called an Access to Information on the Environment request (AIE). Those of you who have been following this saga since 2010 will be familiar with the arguments at play but for those who have not this is the story so far.

The Supreme Court will hear arguments on Friday May 31, about whether a stay should be granted or refused on the judgment of the High Court that NAMA is a public authority, pending an appeal to the Supreme Court. We are asking the court not to grant a stay, NAMA are asking for a stay.

How did this start?

In February 2010 we sent an email to NAMA asking for information including loans it manages (and therefore property it owns or controls). NAMA sent us an email back saying that they were not obliged to answer our request because they did not consider themselves to be a public authority as defined in the Access to Information on the Environment Regulations 2007. Anglo Irish Bank refused on the same basis. We appealed those decisions to an internal review and were refused on the same basis. We then appealed their refusals to the Office of the Commissioner for Environmental Information.

How did the Commissioner react?

In what’s known as a preliminary view (the investigator’s initial position on the case) the Commissioner disagreed with us and said that NAMA (and Anglo) were correct in their view that they were not public authorities. The next step in the process is that parties are invited to make further submissions on the basis of the preliminary view. It was at this stage we invited people to contact us with any legal opinions they had, and Fred Logue contacted us to offer his assistance. We then made further submissions. And waited.

What did the Commissioner decide?

In rulings in September 2011, 20 months after our original requests, the Commissioner ruled in our favour in both the NAMA and Anglo Irish Bank cases. In her ruling the Commissioner did not tackle certain elements of the Regulations about what defines a public authority (the a, b and c definitions) but rather focussed on the list after the words “and includes”. The crux of the issue was what “and includes” means in Irish statutory interpretation.

How did NAMA and Anglo react?

Under the Regulations, NAMA and Anglo could appeal the Commissioner’s decision to the High Court on a point of law, within 8 weeks of the decision. Both did so. Anglo joined us as a notice party to the case, NAMA did not. Then the waiting began for the court hearing. In the meantime the Anglo case was set aside, pending the NAMA case, as both were about substantially the same issue.

What happened at the High Court?

In July 2012, over the course of one and a half days of court sittings, Brian Murray SC, representing NAMA and Niamh Hyland SC, representing the Commissioner, argued the merits of the case before the recently appointed Mr Justice Colm Mac Eochaidh. TheStory.ie was not a notice party and made no representations to the Court, however we did attend. The arguments centred on the meaning of the words “and includes”.

What did the High Court decide?

Six months later the High Court made its judgment in February 2013. Judge Mac Eochaidh said: “I have no difficulty identifying the natural and ordinary meaning of the words at issue in these proceedings once the legislative intention is clear, as it is here. And on the application of the un-rebutted presumption of faithful transposition, the meaning of words used is beyond doubt.”

What did NAMA do then?

NAMA sought a stay on the judgment pending an appeal to the Supreme Court. At this point the Commissioner took a neutral position on the issue of whether a stay should be granted. Judge Mac Eochaidh noted that if a stay were granted then it was likely that the rights of the requester would be affected, and therefore before ruling on the stay issue, he invited us to make a submission to the court.

What was the submission?

Among the points we made orally and in writing to the High Court were that the Regulations (and the Directive and Convention on which the Regulations are based) guarantee a timely process. We argued that we would be prejudiced if a stay was granted, since appeals to the Supreme Court could take up to five years to be heard. Rather, a stay should not be granted since NAMA could answer requests for information in the interim between now and when a Supreme Court appeal is heard.

What did the High Court decide?

On April 19, Judge Mac Eochaidh ruled in our favour. It is worth noting at this point that since the Commissioner had taken a neutral position on the issue of the stay, she is no longer playing an active part in the matter. The argument was only between NAMA and TheStory.ie. He noted:

NAMA decided to dismiss Mr. Sheridan’s 2010 request for information on a threshold issue as to whether or not it was a public authority. No other decision has ever been taken by NAMA on his request even though it could have decided whether or not the information he sought comprised environmental information as defined and whether or not any of the mandatory or discretionary grounds for refusal of information were applicable. Thus, by framing its refusal so narrowly, NAMA have effectively neutralised the whole of Mr. Sheridan’s request and have ensured that the process is likely to take further time and result in further appeals to the Information Commissioner. The elongation of the process for deciding Mr. Sheridan’s request seems to be the direct result of the unnecessarily narrow approach adopted by NAMA in determining the request.

What did NAMA do then?

NAMA disagreed with the stay judgment and appealed it to the Supreme Court (yes that means there are two Supreme Court appeals – one on the original February 2013 ruling that they were a public authority, and the other on whether a stay should be granted). The Supreme Court asked that both NAMA and we make submissions to the Court – both parties have now made those submissions. The court must now decide on whether or not a stay should be granted, and will hear arguments from just two parties – NAMA represented by Brian Murray SC and us, represented by myself.

Is this not costing you money?

No, it has only cost us time. All the legal fees up to this point have been footed by both parties – NAMA on one side and the Commissioner on the other (now at €121,350 and rising). Since we are not a notice party to the case we are not exposed to costs. Indeed when we were successful in our arguments against NAMA on the issue of the stay in the High Court, we were asked if we wished to apply for costs – we refused, saying that the case had cost the taxpayer enough already.

Why didn’t you use the Freedom of Information Act?

NAMA was deliberately excluded from the schedule of bodies covered by FOI by former Finance Minister Brian Lenihan, citing ‘commercial sensitivity’ concerns. Therefore the path of using FOI to obtain information was not open to us. However the current draft bill for the amendment of the FOI Act includes NAMA as a body.

What happens if you lose?

NAMA will be under no obligation to answer AIE requests and we will have to wait until a Supreme Court judgment to decide on the issue, which could be as late as 2018.

What happens if you win?

NAMA will become a de facto public authority under the Regulations pending the Supreme Court appeal, so will have to act as if it were a public authority until the Supreme Court rules on the matter. Under the 2007/2011 Regulations, NAMA will be obliged to answer requests from the public and do things such as “inform the public of their rights under these Regulations and provide information and guidance on the exercise of those rights, make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible by information technology or by other electronic means, ensure that environmental information compiled by or for it, is up-to-date, accurate and comparable and maintain registers or lists of the environmental information held by the authority and designate an information officer for such purposes or provide an information point to give clear indications of where such information can be found”.

The Information Commissioner's 2012 annual report

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.

 

Swords -v- OCEI: Was there ever any doubt over search and retrieval charges for AIE?

The recent appeal decision by the Commissioner for Environmental Information highlights that during the previous five years search and retrieval fees have been wrongly charged by public authorities for requests for access to environmental information. The decision also provides a good opportunity to summarise how the provisions of Directive 2003/4/EC relating to fees have been interpreted in Ireland and the UK.

The impermisibility of charging search and retrieval fees has been clear since an earlier 2008 decision of the Commissioner in Open Focus and Sligo County Council. In that case (which was not appealed) the issue of discretionary fees, although not the main issue, was examined in detail by the Commissioner who found that search and retrieval fees are not permitted:

“Furthermore, in order for a decision maker within the Council to deal with the request for information and form a view as to whether it could be supplied under the Regulations, it would be necessary for the information at issue to be identified and retrieved. There is no provision in the Directive or in the Regulations for the charging of fees for the processing of a request for access to environmental information. Following the assessment of the information and, as in this case, a decision to release it, I consider that it is the next step – the supply of the information to the requester in copy form – that potentially attracts the charge.”

Accordingly since May 2008 public authorities should have been under no doubt that search and retrieval fees were not permitted to be charged. Worryingly the Open Focus decision seems to have been completely ignored by most public authorities including, it must be said, the Department of the Environment which up until this month continued to publish guidelines which explicitly stated that search and retrieval fees could be charged.

Only after the Commissioner decided against the Department of the Environment itself has it finally decided to modify its guidelines to bring them into compliance with the Open Focus decision.

Interestingly the issue had not been subject to a definitive adjudication in the UK until 2011 when the Upper Tier Tribunal in Kirklees Council v Information Commissioner and PALI Ltd [2011] UKUT 104 held that such fees may not be charged for in situ examination and the First Tier Tribunal further held in Leeds City Council -v- Information Commissioner that charges could only be levied for the costs of transferring environmental information (e.g. costs of reproduction) to a requestor who did not wish to examine it in situ. Each of these cases arose from appeals by commercial property searchers (who provide responses to standard Law Society questionnaires as part of conveyancing transactions) against search and retrieval fees charged by local authorities for access to environmental information required by them to fill out the search questionnaires.

The UTT in Kirklees had little doubt on the issue:

“[98] We also disagree with Mr Coppel’s submission that the word “supply” in that sense can be extended to cover the process of locating and retrieving information for examination.  We consider that the proper reading of Article 5(2) of the Directive and Regulation 8(2)(b) of the EIR is to prevent a public authority from charging an applicant for examining in situ the requested information and to permit fees to be imposed only for supplying the information in some different way, e.g.  by provision of a copy of some sort. To put it simply, an authority that makes a charge for going and getting the information to make available for examination in situ, and refuses to make it so available unless the charge is paid, is not making that information available for examination without charge.”

Moreover, the FTT in Leeds City Council  further emphasised the Kirklees decision:

“[78] … Kirklees confirms that a public authority may not impose any charge or recover any cost for making information available for inspection. It would be wrong, in principle and in light of the purpose of the Directive, that a public authority which has not done the work necessary to put in place systems so that the information is in a form in which it can be inspected, free of charge, to be able to pass on to a requester the costs of locating and retrieving the information to put it into a format in which it can be made available.”

and went on to hold that:

[98] … having regard to the provisions and underlying aims of the legislation, the cost of ‘making available’ environmental information should be construed narrowly so as to apply only to the cost associated with the process of supplying (i.e. transferring) the information to an applicant once the requested information has been located, retrieved and put in disclosable form. Any other interpretation would have significant adverse consequences to those wishing to access environmental information.”

While the issue has not been the subject of a definitive decision by the CJEU it seems likely that this court will also follow the rationale of the Irish and UK cases. In fact in case C-217/97 Commission -v- Germany Advocate General Fennelly (as he then was and now a member of the Supreme Court) stated in his opinion at para 23:

“The notion of what is ‘reasonable‘ must in my view be interpreted in the light of the general scheme and purpose of the Directive, and of the context in which it is used. As already noted, the Directive proceeds upon the basis that access to environmental information will ‘improve environmental protection‘. Its primary objective is ‘to ensure freedom of access to … [such] information‘, and it seeks to achieve this end by obliging the Member States to ensure such informationis effectively ‘made available … to any natural or legal person at his request without his having to prove an interest‘. In the light of this objective and the means chosen to achieve it, the question of whether the charges for the supply of the information are ‘reasonable‘ must be judged from the perspective of the member of the public requesting the information, rather than from that of the public authority. While it does not expressly preclude a Member State levying a charge for the time and effort of public officials, such an approach seems to me to be fundamentally incompatible with the principal features of the Directive.”

Ultimately the ECJ (as it then was) did not need to rely on this element of AG Fennelly’s opinion but it seems likely that it would adopt it should the it be required to do so.

It seems that the conclusion to be drawn from these decisions is that there is a greater public interest in access to environmental information when compared to access generally under freedom of information. Accordingly, the question of which charges are permitted should be interpreted narrowly so that the objective of making environmental information available as widely as possible can be achieved. Therefore requesters should not be obliged to pay for the processing of a request, should be able to examine information in situ free of charge and should only pay the disbursements incurred by a public authority where copies of requested information is transmitted to them.

Ironically Mr Swords had to pay €150 to the Commissioner to lodge his appeal against a search and retrieval fee of €146.65 proposed by the Department of the Environment. Following the rationale of the Irish and UK decisions it seems unreasonable that the Commissioner should charge a fee for lodging an appeal since an appeal itself can be rightly viewed as a part of the processing of a request and not of supplying environmental information. Indeed very often an appeal to the Commissioner is necessary before any information is supplied.

At the very least it is now uncertain whether the Commissioner is entitled to levy this fee but we must wait until this issue itself is examined in an administrative tribunal or court before it can be resolved.