The High Court has ruled that Right to Know CLG’s appeal over access to records connected with an IBEC submission was moot because the requested documents had been disclosed before the case was heard.
In a judgment delivered on 31 July 2020, Ms Justice Niamh Hyland concluded that the appellant no longer had an interest in the determination of the proceedings. She declined to decide whether the records were environmental information under the European Communities (Access to Information on the Environment) Regulations.
Right to Know had requested the submission and minutes referred to in a lobbying register entry. The Department of Transport, Tourism and Sport refused access in April 2017, saying the records were not environmental information and that it held no meeting minutes. The Commissioner for Environmental Information upheld the refusal in February 2018, finding that the records did not contain substantive information on the transport measures identified.
The records comprised a one-page IBEC document titled “Business priorities for ministerial handover brief”, a covering letter dated 2 March 2016, and a further letter dated 9 March 2016 correcting the department’s description and seeking to arrange a meeting. A journalist provided the one-page submission to Right to Know in April 2018. The notice party sent all three documents in May 2018, after consulting IBEC, while maintaining that they were not environmental information and that the regulations did not require their release.
Right to Know argued that the appeal should continue because the Commissioner stood over the decision and its approach might affect future access requests. It also argued that lobbying on environmental matters could itself be an activity affecting the environment. The Commissioner and the notice party said there was no longer a live dispute.
The judge held that the continued existence of the Commissioner’s decision and the appellant’s concern about future requests did not establish exceptional circumstances for hearing an otherwise moot case. She found no evidence that the Commissioner had adopted a fixed legal approach that would necessarily be applied to future requests. The judgment also noted that the Commissioner’s decision had not ruled out the possibility that lobbying-related information could qualify as environmental information; the lobbying argument had not been addressed in that decision.
The court did not determine whether lobbying is an activity or measure under the regulations, or whether the records met the definition of environmental information. It concluded that the tests for hearing a moot case were not met, including on the EU-law standard argued by the appellant. The judgment’s conclusion states that the case is moot; it does not record a separate order in the supplied text setting aside or affirming the Commissioner’s decision.