The High Court has proposed referring questions to the Court of Justice of the European Union about whether records of Government meetings on greenhouse gas emissions are “internal communications” or confidential “proceedings” under EU environmental information law. The distinction may determine whether records relating to emissions must be disclosed.
In a judgment delivered on 23 April 2021, Mr Justice Garrett Simons allowed Right to Know CLG to continue its judicial review challenge to a decision withholding some of the records. He also rejected the argument that the group should first have appealed to the Commissioner for Environmental Information.
The group’s request, made in March 2016, sought documents showing cabinet discussions on Ireland’s greenhouse gas emissions from 2002 to 2016. After an earlier High Court ruling sent the request back for reconsideration, a decision in August 2018 granted access to one record, partial access to 17 and withheld 13. Right to Know brought the current proceedings to challenge that decision.
The group argued that Government meeting records concern the confidential “proceedings” of a public authority. Under the Environmental Information Directive, the exception for such proceedings cannot be used to refuse information relating to emissions. An Taoiseach argued that the records are “internal communications”, an exception that is not subject to that emissions override.
Earlier High Court judgments had treated cabinet discussions as internal communications. The judge said the current court could depart from those rulings where there were substantial reasons to question them. He considered that later EU case law had not been before the earlier courts and raised a real concern that they may have drawn the line between communications and deliberative proceedings incorrectly.
The judge also considered whether Right to Know was barred from reopening the issue because it had been decided against the group in its earlier case. He found that, in the special circumstances, it would be disproportionate to prevent the argument from being heard. The underlying access dispute had not been finally resolved, and the possibility of a costs order could address any unnecessary duplication, he said.
The judge did not finally classify the records or decide the disclosure challenge. He said he could not reach a final view without guidance from the Court of Justice and proposed referring questions on the Directive and issue estoppel. The parties were to make submissions on the wording of the questions. The case was listed for mention on 7 May 2021 to fix a hearing date. The ruling also left the group’s other grounds of challenge, including the adequacy of the public-interest balancing exercise, for later determination.