The High Court has allowed part of Right to Know CLG’s appeal over access to environmental information held by the Office of the Secretary General to the President, and sent the request for records about two presidential speeches back to the Commissioner for Environmental Information for reconsideration.
Mr Justice Barr held that Ireland had not used an option in EU law to exclude the President and related bodies from the definition of a public authority when it transposed the environmental information directive in 2007. The court therefore set aside the Commissioner’s finding that the office was not a public authority in relation to the request made on 9 February 2017.
That request sought records, including emails, briefing notes and draft speeches, relating to President Higgins’s address at the Summit of Consciences of the Climate in Paris in July 2015 and his address at the New Year’s Greeting Ceremony in January 2016. The High Court did not order those records to be released. It remitted the request to the Commissioner to consider it in light of the judgment.
The appeal arose from two refusals by the Commissioner. In a decision dated 29 May 2019, he found that the President’s constitutional immunity extended to the office supporting the President, so it was not a public authority required to process the speech-records request. In a second decision, dated 17 June 2019, he refused access to records concerning the Council of State’s consideration of two Bills.
The court dismissed the appeal concerning the Council of State records. It held that the Council’s advice to the President about whether to refer the Bills to the Supreme Court under Article 26 of the Constitution formed part of the legislative process. The relevant exclusion for bodies acting in a legislative capacity applied, so the Commissioner’s refusal of those records was upheld.
The court also held that making the President’s refusal decisions reviewable by the Commissioner could expose the President to being answerable to the High Court, contrary to the constitutional immunity. It nevertheless concluded that the EU directive and the 2007 regulations prevailed in relation to the 2017 speech-records request. The court’s view that the 2018 amending regulations did not retrospectively affect that request was stated as an observation, not a binding ruling for the Commissioner’s reconsideration.
The judgment provided for a 28-day stay from perfection of the final order, continuing if a notice of appeal was lodged within that period. Costs were left for later determination, and the parties were allowed four weeks to submit observations on the final order and related matters.