The Supreme Court has ruled that environmental information requests seeking records held for the President or the Council of State cannot be used to require disclosure of material connected with the President’s constitutional functions. It allowed an appeal by the State parties and dismissed Right to Know CLG’s cross-appeal over records held by the Council of State.
The judgment, delivered by Ms Justice Baker on 29 April 2022, concerned two requests made under the European Communities (Access to Information on the Environment) Regulations. One sought records relating to President Michael D. Higgins’s speeches at the 2015 Summit of Conscience for the Climate in Paris and the January 2016 New Year’s Greeting Ceremony. The other sought submissions, minutes and communications concerning the Planning and Development Bill 1999 and section 24 of the Housing (Miscellaneous Provisions) (No. 2) Bill 2001.
The Commissioner for Environmental Information had declined to review the requests, finding that the President, the Office of the Secretary General to the President and the Council of State were outside the regulations because of the President’s constitutional immunity. The High Court partially allowed Right to Know’s appeal. It sent the speech-record request back to the Commissioner for reconsideration and held that the Council of State was excluded because it was assisting the President in a legislative function.
The Supreme Court overturned that approach. It held that Article 13.8.1° of the Constitution prevents courts from scrutinising or making orders concerning the President’s performance of constitutional functions. The court said the immunity also prevents indirect attempts to compel a response through the Secretary General or Council of State, which act in support of the President and could not independently decide to disclose the requested records.
The court also concluded that the President is not a “public authority” under the environmental information directive or the Irish regulations. It held that EU law did not require Ireland to make the President subject to the request and review process, given the pre-existing constitutional protection. It found that the 2018 regulations, which expressly named the President and Council of State among excluded bodies, restated the existing legal position.
The court said the Office of the Secretary General to the President, as named in the proceedings, was not a separate legal entity capable of being sued, and no relief could be sought against it. The judgment’s conclusion was that the Supreme Court had no jurisdiction to engage the appeal from the Commissioner’s decision in light of the presidential immunity. The resulting order overturned the High Court’s directions concerning disclosure by the President or the notice party.