The High Court has found unlawful the Commissioner for Environmental Information’s decision that a transcript of a property arbitration was environmental information, and separately found the decision’s conclusions on copyright and access irrational.
In a judgment delivered on 3 April 2020, Ms Justice O’Regan was considering ESB’s appeal on a point of law under Article 13 of the European Communities (Access to Information on the Environment) Regulations. The appeal concerned a decision of 13 December 2018 following a request by notice party Lar McKenna for several categories of documents. Only the request for a 488-page transcript of a June 2017 hearing remained in issue.
The hearing before property arbitrator Paul Good concerned assessment of compensation payable to landowners under section 53(3) of the Electricity Supply Act 1927, as amended. ESB argued, among other grounds, that the Commissioner wrongly described the process as involving compulsory acquisition of land and breached fair procedures. The court rejected those grounds: it considered the characterisation complaint overly technical and found no breach in the failure to provide submissions in advance or in the notice given about possible inspection.
The court held, however, that the Commissioner had not carried out a case-specific review of the transcript before deciding that it was information “on” a measure or activity affecting the environment. The judgment said the Commissioner had stated the applicable legal test but did not refer to the transcript’s contents or explain how those contents were environmental or integral to electricity infrastructure development. The court concluded that the method used to reach that finding was unlawful.
The judgment also addressed the Commissioner’s treatment of copyright and access. The Commissioner had found that the transcript was an original literary work belonging to Gwen Malone Stenography Services and that the intellectual-property exception applied. The decision then weighed the public interest and directed that access be provided by inspection at ESB’s office, without requiring a copy.
Justice O’Regan found the decision’s use of “disclose”, “release” and “access” unclear as to whether access meant supplying a copy or allowing inspection. She said the decision’s reasoning on pages 12 to 14 was confusing and contradictory, and irrational.
The court’s conclusion identifies both grounds as unlawful or irrational. The judgment provided does not set out a separate formal order or further directions, so the precise order made is not stated in the source.