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Annual Report 2008 - Text
Mr Gary Fitzgerald & the Department of the Taoiseach (Case CEI/07/0005)
Whether a request for information comprising Cabinet discussions on Ireland's greenhouse gas emissions can be refused by reference to the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007)
Note; this decision was appealed to the High Court by the Department on 10th December 2008 and it is also the subject of Judicial Review Proceedings.
Background
In March 2007, Mr Gary Fitzgerald requested environmental information from the Department of the Taoiseach under Directive 2003/4/EC. The request was for "any documents, including, but not limited to, minutes of meetings, that report Cabinet discussions on Ireland's greenhouse gas emissions" for the years 2002 to 2007. In May 2007 Mr Fitzgerald informed the department that, as he had not received a substantive reply, he was appealing its refusal of his request. He pointed out that, since the making of his initial request, Directive 2003/4/EC had been transposed into Irish law through the European Communities (Access to Information on the Environment) Regulations 2007 (S.I .No 133 of 2007). The department completed an internal review of its decision and notified this to the Applicant. Its decision was to release eight documents and to withhold a further 18 documents.
Following correspondence with my Office in relation to payment of the statutory fee under the Regulations and in relation to my Office's jurisdiction, Mr Fitzgerald made an appeal to my Office in October 2007. I exercised my discretion under article 12(4)(b) of the Regulations to accept the appeal which was made outside of the prescribed appeal period.
The Information
In conducting this appeal, my Office took the view that, on a strict reading of the request as made, only one of the 18 documents identified by the department could be regarded as being a report of discussion at Cabinet on Ireland's greenhouse gas emissions. Mr Fitzgerald accepted this and agreed that his appeal could proceed on that basis i.e. whether he had a right of access to the one document.
The Applicant's Position
The applicant argued that his request relates to information on emissions into the environment and that, under the Directive, such a request must be granted. He referred to Article 10(1) of the Regulations which purports to transpose this provision. He argued that articles 3 and 4 of the Directive have direct effect and that they displace any provision of the Irish Regulations which have the effect of contradicting the Directive's provisions. On the question of jurisdiction, the requester contended that the European Court of Justice ("ECJ") has ruled "that administrative bodies should dis-apply national laws which conflict with EU laws".
The Department's Position
In its decision, the department found that the document constituted a record of the Government which is "specifically excluded from disclosure." It referred to Article 8 of the Regulations which, it said, "mandates" the Department not to make this information available. The Department also referred to section 19 of the Freedom of Information Act which, it said, "precludes" disclosure of the document.
The Department made submissions to my Office . It rejected the applicant's argument and contended that "the Regulations are fully compatible with the Directive". It said that "it is the provisions of the ... Regulations that applicants, public bodies and the Commissioner for Environmental Information are required to observe in considering requests (and appeals) for environmental information".
Decision on Appeal
Among the issues I had to consider were:
- Does disclosure of the information come within the grounds for refusal in article 8(a)(iv) - adverse affect on the confidentiality of the proceedings of public authorities - where such confidentiality is otherwise protected by law (including the Freedom of Information Acts) or article 8 (b) of the Regulations - to the extent that it would involve disclosure of discussions at a meeting of the Government and is prohibited by Article 28 of the Constitution?
- Does the request relate to information on emissions into the environment?
- Are the Regulations - specifically article 10(2) - in conflict with the Directive in the case of requests which relate to information on emissions into the environment?
- Is the Commissioner for Environmental Information bound by the Directive?
I concluded that the article 8 exemptions were dis-applied by virtue of the limitations on the operation of those exemptions provided for at article 10(1) - where a "request relates to information on emissions into the environment".
In the light of the requirement in Article 4(2) of the Directive to interpret the grounds of refusal in a restrictive way taking into account for the particular case the public interest served by disclosure, I did not find it possible to interpret the Regulations so that article 10(2) of the Regulations - which purports to dis-apply Article 10(1) so that the reference to information on emissions to the environment does not include a reference to discussions on the matter of such emissions at any meeting of the Government - is in conformity with the provisions and objectives of the Directive.
My understanding of the ECJ's findings in other cases is that provisions of a Directive are effective as against public authorities implementing the Regulations. I took this to include my Office in its review of decisions made by public authorities under the Directive and the Regulations.
I was conscious of the fact that while my Office is a creature of the Regulations, its creation arose from the "Access to justice" provisions set out at Article 6 of the Directive. Having considered the matter, including the objectives of the Directive, I found that where a provision of the Directive is as clear and precise as the provision at issue here, I must exercise my functions in carrying out a review and proceed on the basis that the requirements of paragraph 2 of Article 4 of the Directive cannot properly be set aside by article 10(2) of the Regulations.
I annulled the department's decision and directed that the one record at issue be made available to the Applicant.
