The High Court has quashed a decision requiring the Electricity Supply Board (ESB) to provide access to the full transcript of a compensation arbitration involving landowners Sylvester and Philomena Murphy. Mr Justice Mark Heslin ruled on 17 January 2024 that the Commissioner for Environmental Information made errors of law on both the environmental information and copyright issues.
The transcript records a public hearing on 19 and 20 June 2017 before property arbitrator Paul Good. The hearing concerned the amount of compensation payable after an electricity line was routed across the Murphys’ land. The judgment says the transcript contains arguments made by the parties, but not the arbitrator’s determination, the compensation amount or reasons for the award.
Right to Know Group CLG requested the transcript from ESB in April 2020 under the Access to Information on the Environment Regulations. ESB refused access. On appeal, the Commissioner decided on 29 August 2022 that the entire transcript was environmental information and that ESB could not rely on the Regulations’ intellectual property exception.
The court held that the Commissioner had taken too broad an approach to whether the transcript was information “on” the electricity infrastructure project. The project and route decisions preceded the compensation hearing, which could not alter them. The judgment said the transcript was too remote from the project to qualify as information on a measure affecting or likely to affect the environment.
On copyright, the court found that the transcript qualified for protection under national and European copyright law. It accepted that the stenographer’s work involved creative choices in turning spoken words into a readable record. The Commissioner had therefore erred in concluding that no intellectual property right arose and that the copyright ground for refusal did not apply. The court also found that the Commissioner had not adequately explained why he departed from an earlier decision concerning the same transcript, which had accepted the copyright exception.
The appeal was on a point of law. The judgment sets aside the Commissioner’s decision; it does not determine the compensation due to the Murphys or order the transcript to be released. The court directed the parties to correspond about the final order and costs, with written submissions due by 31 January 2024 if they could not agree.