Right To Know granted leave to bring judicial review proceedings against An Taoiseach

Good afternoon. Right To Know CLG was today granted leave to seek a judicial review of a decision by the Department of An Taoiseach to refuse access to certain documents. We are seeking a Judicial Review of an internal review decision by the Department of An Taoiseach made under the Access to Information on the Environment (AIE) Regulations 2007 – 2014.

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Timeline

On 8th March 2016 we instructed Right To Know’s solicitors to make a request to the Department under the AIE Regulations for access to all documents which show Cabinet discussions related to Ireland’s greenhouse gas emissions from 2002 to 2016.

The Department sought to extend the deadline to reply on 24 March 2016 under Article 7(2)(b) of the AIE Regulations. On 5 May 2016 the Department issued a decision listing 31 relevant documents but refusing access to all of them apparently on the grounds of cabinet confidentiality based on Articles 8(b) and 10(2) of the AIE Regulations. The Department also referred to the previous High Court case of An Taoiseach v Commissioner for Environmental Information [2010] IEHC 241.

We then sought an internal review of this decision and on 10 June 2016 we submitted a detailed document supporting our view that the request should be granted in full. The submission noted that the clear scheme of the EU legal order, as set out in a series of seminal judgments of the Court of Justice of the European Union (the “CJEU”), meant that, where there was a conflict between directly effective EU law and national law, EU law took precedence.

The submission also pointed out that this means that a national decision-maker, including an administrative decision-maker, must disapply national law which conflicts with EU law, no matter the source of the national law in question. Therefore, our request needed to be considered as a matter of EU law first. This was not done by the Department.

The submission also outlined how Article 28.4.3 of the Constitution and certain parts of the judgment of the High Court in An Taoiseach v the Commissioner for Environmental Information were incompatible with EU law and could not be applied during the internal review.

We received an extremely short ‘Internal Review Decision’ dated 27 June 2016 from the Department upholding the original refusal.

In the ordinary course of events this would be where the requester would appeal to the Commissioner for Environmental Information. On this occasion we decided not to do so. We do not think that an appeal to the Commissioner could give us a remedy. The central issue in this case is the jurisdiction of administrative bodies to disapply national law when there is a conflicting EU law. As far we are concerned the principles flowing from the case-law of the CJEU oblige all administrative decision-makers in the European Union, including the Department, to disapply national law in such instances. This was not accepted by the High Court in An Taoiseach v Commissioner for Environmental Information.

In that case, the Commissioner for Environmental Information initially appealed that finding to the Supreme Court but then withdrew that appeal in early 2014. It is clear, therefore, that the Commissioner feels that he is bound by the High Court’s decision.

Therefore it is highly likely that the Commissioner would not have been able to grant us access to the documents, but would have had to refuse access on the very same grounds that it was refused on two occasions by the Department, necessitating either a statutory appeal on a point of law of that refusal under the AIE Regulations, or a judicial review.

This case raises fundamental issues in relation to the relationship between national law and EU law, in addition to fundamental issues about transparency of Irish Government decision-making in relation to environmental matters.

We sought leave to appeal last month and after reserving judgment Mr Justice Fullam today granted our application for leave to bring a judicial review, seeking:

  • An order quashing the internal review decision of the Department
  • A declaration that the decision did not contain any or any adequate reasons but merely stated the conclusions of the internal review
  • A declaration that the Minister for the Environment when transposing the AIE Directive wrongly excluded an entire class of documents, namely records of Cabinet discussions, from the scope of the right of access.
  • A declaration that the Minister for the Environment was not entitled to narrow the scope of the broad right of access to information on emissions into the environment.

The judge found that we met the standard for judicial review, that we had an arguable case and that if we were ultimately to succeed we must overturn the decision by Mr Justice O’Neill in An Taoiseach v Commissioner for Environmental Information. The judge also found explicitly that we had chosen the right course of action, and that judicial review is the appropriate remedy in our case.

Right To Know CLG is represented by:

Noel Travers S.C.
Gary Fitzgerald B.L.
FPLogue Solicitors

FAQ

What’s this all about?

Ireland has a long tradition of secrecy in relation to discussions at Cabinet. Article 28.4.3 of the Constitution makes all discussions at Cabinet secret. However it’s well established that in the case of conflict between national and EU law,  EU law overrides domestic law, including the Constitution. Under the EU law that implements the information provisions of the Aarhus Convention, there are no specific exemptions for government discussions, however when Ireland transposed the Directive into Irish law we added a specific provision for excluding records of Cabinet discussions.

This issue arose before. In a previous case the High Court ruled that Cabinet discussions were exempt  – we disagree with this view. Right To Know takes the view that it’s not possible to make this exclusion, and in any event, public bodies are obliged to apply EU law directly where there’s a conflict with domestic law – including the Constitution or decisions of the courts.

We sought Cabinet records related to discussion concerning carbon emissions over a certain time period. We made the argument that the State was  obliged to release this information.

What’s this got to do with FOI? 

Nothing.

FOI, or Freedom of Information, relates to a specific Irish law called the Freedom of Information Act 2014. This case does not involve that law at all, but rather refers to a separate law that stems from a European Directive, which itself stems from the Aarhus Convention. This law is called the Access to Information on the Environment Regulations 2007-2014.

Why is this issue important?

There’s a few inter-related issues that will be raised in the coming proceedings. Some relate directly to environmental issues, while others have broader implications:

  1. What are the obligations on public authorities to directly apply EU law, in the case of conflicts with domestic law?
  2. Is Cabinet confidentiality a ground for refusing access to environmental information?
  3. Does Cabinet confidentiality narrow the broader right of access to information on emissions into the environment?
  4. What are the obligations on public authorities to state reasons?
  5. What are the obligations on public authorities to apply a public interest balancing tests on all decisions where an exemption is engaged?

How long will the proceedings take?

We don’t know. But we believe the process *should*, by law, be timely – per Article 9 (4) of the Aarhus Convention.

What’s the next step?

We will back in court on November 21st, 2016. And we will update everyone then. In the meantime follow our Twitter and Facebook accounts.

Are you making court documents available?

We want to be as open and transparent as possible about this process. Once documents are opened in court we will make them available as soon as possible on this website. We want to inform everyone about not just their rights, but also how we are seeking to vindicate those rights.

What can we do to help? 

We need your support, as ever. We are seeking 50 new supporters (at €50/year) to help us in all of our efforts, including this case.

Please go here and sign up.

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