The High Court has asked the Court of Justice of the European Union (CJEU) to clarify whether control of court records from concluded proceedings falls within the “judicial capacity” exemption in EU environmental information law.
The reference was made by Ms Justice O’Regan on 21 May 2019 under Article 267 of the Treaty on the Functioning of the European Union. It concerns a request by Friends of the Irish Environment for records held by the Courts Service in Balz and Heubach v An Bord Pleanála, a High Court case decided on 25 February 2016 that was not appealed.
Friends of the Irish Environment had sought pleadings, affidavits and exhibits, written submissions and perfected orders. The Courts Service refused the request, stating that environmental information regulations did not cover court proceedings or legal documents filed in them, and that access was limited to the parties and their legal representatives. After the organisation received no response to its request for an internal review, it appealed to the Commissioner for Environmental Information.
The Commissioner decided on 31 July 2017 that the Courts Service held the records while acting in a judicial capacity and was therefore not a public authority for the purposes of the regulations. The Commissioner concluded that there was no jurisdiction to review the Courts Service’s decision. Friends of the Irish Environment then challenged that outcome.
The parties agreed that control of a court file while proceedings are ongoing involves judicial capacity. Their dispute was whether that remains so after final orders and the end of the appeal period, when no appeal or further application is pending, although certain applications to reopen or revisit concluded proceedings may still be possible in limited circumstances.
Friends of the Irish Environment argued that the exemption should be interpreted functionally and should end when proceedings conclude, in keeping with the directive’s transparency purpose. The Commissioner and the Courts Service argued that national legal and constitutional arrangements support continuing judicial control of court records, including after final orders, to protect judicial independence and the proper administration of justice.
The High Court noted that Irish decisions on public access to court records appear to conflict and have not been reconciled. It also said that the Directive’s effect had not been considered in the cited Irish cases. The court said the EU-law question was not so clear as to leave no reasonable doubt and that a ruling was appropriate and necessary to determine the main proceedings and support consistent interpretation of EU law.
The document is a request for a preliminary ruling. It records the question referred and the parties’ submissions; it does not contain the CJEU’s answer or the High Court’s final determination of the underlying challenge.