The High Court has set aside the Commissioner for Environmental Information’s decision refusing Right to Know access to emails about RTÉ’s climate change reporting, and remitted the matter for fresh consideration. It did not order the emails released or decide that they qualify as environmental information.
Right to Know CLG (RTK) asked RTÉ in November 2018 for records about how it reports on climate change and the creation of policies or guidelines for that reporting. RTÉ said it held no records in the second category. For the first, it held public correspondence and feedback, which it considered outside the environmental information rules. RTK’s internal review request was unsuccessful. The Commissioner then ruled on 6 December 2019 that the information was not environmental information and that RTÉ was not obliged to process the request.
RTK appealed to the High Court on a point of law. Mr Justice Max Barrett said the Commissioner had not properly considered whether climate change broadcasting could be a “measure” or “activity” under the regulations. The examples in the definition were illustrative, the judge said, and did not limit the definition to plans, policies or programmes. He also found that the Commissioner had treated press freedom as relevant to whether the information fell within that definition, although the regulations provided for no such test.
The judge identified further errors in the Commissioner’s assessment of potential environmental effects. The Commissioner had acknowledged that RTÉ broadcasts disseminated environmental information and raised awareness, but also concluded that such reporting was too indirect and uncertain to qualify. The court said the decision did not engage with RTK’s submission that broadcasting could influence public opinion and individual behaviour. It also found that the Commissioner wrongly assessed the environmental impact of the emails themselves, rather than the relevant activity or factor, and took too narrow an approach to whether the emails were information “on” climate change.
The appeal was a statutory appeal limited to points of law, not a full rehearing. The court set aside the Commissioner’s 2019 decision and returned the matter to him for fresh consideration. The judgment leaves the access request unresolved: it does not establish that the emails must be disclosed. The judge said RTK appeared to have a strong case for its costs and invited the parties to respond within 14 days if they disagreed with the proposed costs order.