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High Court judge overturns refusal of Dept of Taoiseach to provide access to greenhouse gas emissions files

By Ann O'Loughlin

A High Court judge has overturned a refusal by the Department of the Taoiseach to provide access to documents concerning Cabinet discussions on greenhouse gas emissions between 2002 and 2016.

The request for access must now be reconsidered in line with the court's findings.

In an important judgment, Ms Justice Mary Faherty found that the Regulations implementing a 2003 EEU Directive on Public Access to Environmental Information do not give government discussions a "class exemption" from disclosure.

She agreed with Right To Know CLG, a group campaigning for greater transparency of decisions made by public authorities, the refusal to disclose was not done in accordance with the State’s EU law obligations.

She has directed that the CLG request must be reconsidered in line with those obligations, which require a "balancing exercise" be done between the public interest served by disclosure of the material and constitutional protection for confidentiality of Cabinet discussions.

That balancing exercise must not be "formulaic" and must be in accordance with "letter and spirit" of the 2003 EU Directive on Public Access to Environmental Information, she stressed.

Given the "strong imperative" in the Directive towards disclosure of environmental information, there must be "some indication" why it was considered the public interest in confidentiality of Cabinet discussions should prevail over the public interest disclosure of the information would serve.

CLG, she noted, furnished extensive submissions concerning factors to be considered in the balancing exercise, including the now global scientific consensus that climate change is "real", is caused by emissions into the atmosphere and poses "the biggest challenge that humanity has ever faced".

A June 2016 decision by an internal reviewer which upheld the Department of the Taoiseach's refusal of disclosure of 31 identified documents gave "no indication" any balancing exercise was carried out.

She was also satisfied the review decision did not comply with the requirement under the Directive and its impementing Regulations, the Access to Information on the Environment (AIE) Regulations to give reasons for the refusal.

The State respondents, she noted, argued during the proceedings government discussions do not constitute "information on emissions into the environment" even though they were identified as such in the internal review decision.

[quote]If it is now being argued the documents do not concern emissions, reasons will have to be given by the review decision maker why such a conclusion has been reached, she said.[/quote]

The case arose after Right To Know asked the Department under the AIE Regulations for access to all documents which show Cabinet discussions related to Ireland’s greenhouse gas emissions from 2002 to 2016.

In May 2016, the Department issued a decision listing 31 relevant documents but refusing access to all on grounds of Cabinet confidentiality and on foot of a 2010 High Court judgment, An Taoiseach v Commissioner for Environmental Information, concerning access to environmental information.

When the refusal was upheld by the internal review, it sought judicial review.

The case concerned the interpretation of the 2003 Directive, the AIE Regulations and the jurisdiction of administrative bodies to disapply national law when there is a conflicting EU law.

In her detailed judgment published this week, Ms Justice Faherty agreed with CLG any refusal of access to environmental information must be justified by reference to the considerations set out in the Directive.

There can only be reliance on the exceptions to disclosure provided for by the Directive if a balancing execrise is done in each case, she held.

In every particular case, the public interest served by disclosure of the documents shall be weighed against the interest served by the refusal.

She disagreed with a finding in the 2010 High Court judgment that only two provisions of the AIE Regulations, Articles 8.b and 10.2 - which provide disclosure exemptions for discussions at Cabinet - affect Cabinet confidentiality, saying she considered Article 10.3, 10.4 and 10.5 also affect Cabinet discussions.

Article 10.3, 10.4 and 10.5 "mandates" a public authority to weigh the public interest served by disclosure against the interest served by refusal; to interpret grounds for refusal on a restrictive basis having regard to the public interest served by disclosure; and to consider the possibility of providing partial information.

There is nothing in the Regulations which "immunise" records of government discussions from the mdanatory requirements of the Article 10 provisions, which replicate the requirements of the Directive, she held.