The AIE Regulations
The 2007-2018 Access to Information on the Environment Regulations (“the AIE Regulations”) permit members of the public to request environmental information from local authorities. The AIE Regulations were adopted to give effect to Directive 2003/4/EC of the European Parliament and of the Council on Public Access to Environmental Information (“the AIE Directive”). This Directive in turn gives effect to the 1998 UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“the Aarhus Convention”).
An Increase in Requests for Information on the Environment
The number of access requests under the AIE Regulations appears to be increasing steadily, as noted in the Annual Reports of the Commissioner for Environmental Information. Environmental issues are now reported upon more frequently in the media. Furthermore, climate litigation against governments, corporations and fossil fuel companies continues to increase across the world. The litigation in this area is also increasing. In April 2021, three decisions from the Irish courts issued.
Three Recent Decisions Concerning RTÉ, the President & Cabinet Confidentiality
In Right to Know CLG v Commissioner for Environmental Information  IEHC 353, Right to Know sought any records held by RTÉ relating to how RTÉ reports on climate change. The question for consideration was whether a bundle of emails in the possession of RTÉ was “environmental information” for the purposes of the Regulations. RTÉ held that it was not and the Commissioner agreed. The decision was overturned in the High Court. Among other findings, Barrett J held that the Commissioner failed to engage with the case made by Right to Know, which was that there is a link between climate change reporting and its likely environmental effects – “the effect being the remarkable ability of the national public service broadcaster to influence public opinion and hence individual behaviour”.
The second case looked at the issue of whether the Office of the Secretary General to the President and the Council of State could be considered as public authorities. In Right to Know CLG v Commissioner for Environmental Information  IEHC 273, the High Court held that at the time of the requests, Ireland had not legislated so as to exclude the President and related bodies from the ambit of the AIE Regulations. The State had not transposed Article (2)(2) of the AIE Directive which permitted such exclusion. Therefore, they were in principle to be considered as public authorities.
Finally, in Right to Know CLG v An Taoiseach  IEHC 233, the High Court considered the exceptions to access. The fundamental point of dispute between the parties was whether meetings of the Government should be characterised as “internal communications” of a public authority, or, alternatively, as the “proceedings” of a public authority. There is a provision in the AIE Directive which provides that in the latter scenario only, Member States may not provide for a request to be refused where the request relates to information on emissions. The “emissions override” is not applicable if Government meetings are characterised as the “internal communications” of a public authority, as they were in two previous High Court judgments. Simons J decided to refer a question to the CJEU in order to get further clarity on the issue. We can await this next CJEU reference case with interest.
This is a time of significant development for AIE principles, both domestically and at the European level. There is an increase in environmental litigation, and more generally, an increase in consciousness about environmental issues such as climate change.
Dr Claire Hogan is a barrister at the Bar of Ireland. She has a mixed civil practice, and undertakes cases and provides legal advice in the areas of Freedom of Information and Data Protection Law. She graduated from Trinity College Dublin with a degree in Law and French, having been elected a Scholar of the College. Claire also holds a Master’s degree in Law (LL.M.) from the University of Cambridge. She qualified as a barrister in 2009, and was awarded the John Brooke Scholarship for first place in the exams of the Honorable Society of King’s Inns. Claire has also completed a Ph.D. in the area of Constitutional Freedom of Religion Law. Claire lectures in Civil Procedure in the King’s Inns, and Constitutional Law in the Law Society.
Claire will lecture on The AIE Regulations on the 13th July 2021.
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