The Court of Appeal has dismissed Right to Know CLG’s appeal over a rule requiring people seeking environmental information to state that their request is made under Ireland’s Access to Information on the Environment (AIE) Regulations.
In a judgment delivered on 24 March 2023, Ms Justice Faherty, with whom Mr Justice Noonan and Mr Justice Binchy agreed, upheld the High Court’s refusal of judicial review. The court found that the requirement in Article 6(1)(b) of the Regulations was compatible with the EU AIE Directive and was a permissible practical arrangement. It also held that the provision did not breach the constitutional limits on delegated lawmaking.
Right to Know had asked the Taoiseach on 3 August 2018 for government documents and meeting records concerning environmental assessments of the National Planning Framework and National Development Plan. The Department asked whether the request was under the AIE Regulations or the Freedom of Information Act. Right to Know did not specify a regime, saying its request was valid. The Department then said it could not process the request without clarification. Right to Know sought an internal review, but no response followed.
The organisation brought judicial review, arguing that requiring a requester to cite the AIE regime was not authorised by the Directive and was constitutionally invalid. The High Court refused the application in February 2020. It considered the request for clarification a processing step, and held that the rule was permissible under the Directive and the European Communities Act 1972.
On appeal, the Court of Appeal also held that Right to Know should have pursued the statutory appeal process. The court said it could have appealed to the Commissioner for Environmental Information and, if dissatisfied, taken a point of law to the High Court. The Commissioner could also refer a legal question to the High Court. The court considered that route available even though Right to Know challenged the rule’s legality.
Addressing the substance of the challenge, the court said the Directive leaves Member States room to establish practical arrangements for effective access to environmental information. It found the requirement helped distinguish AIE requests from requests under separate information regimes. Right to Know had not shown that the requirement restricted its access in the circumstances; the court said its decision not to identify the AIE Regulations prevented the request from being processed.
The appeal was dismissed. The court did not decide whether the original exchanges amounted to a refusal of the information request. It invited submissions on costs within 28 days; the judgment did not determine costs.