The High Court has asked the Court of Justice of the European Union to clarify whether RTÉ falls within EU environmental information access rules in a case arising from requests about its climate change coverage.
The proceedings follow a July 2021 request by Ken Foxe of Right to Know CLG. He sought guidance or training issued to RTÉ journalists on climate reporting, the number of representations received about its climate coverage, and copies of correspondence received on that subject.
RTÉ released a sample of correspondence but disputed that it was legally obliged to do so. It later argued that it was not a “public authority” under the European Communities (Access to Information on the Environment) Regulations 2007.
The Commissioner for Environmental Information ruled in November 2023 that RTÉ was a public authority, that the requested material was environmental information and that the relevant refusal ground did not apply. RTÉ appealed to the High Court on points of law.
Mr Justice Humphreys has now paused the substantive case and referred three questions to the EU court.
The first asks whether a publicly established and funded broadcaster which is statutorily independent in its editorial functions is a public authority for all purposes, only for non-journalistic functions, or not at all.
The second concerns a practical issue arising from Right to Know's request for the number of climate-related representations. RTÉ says no such standalone record exists and that establishing the figure would require extensive searches. The High Court has asked whether EU law requires a public authority to create a new record by counting existing material.
The third question concerns delay. The original request dates from 2021. The court asks whether EU law permits or requires a court to make its own factual findings and final decision where sending a case back for further administrative consideration risks prolonging access proceedings excessively.
No final ruling has been made on whether RTÉ must disclose the information. The Irish proceedings are adjourned until the CJEU answers the questions.