Judge wants European Court view on whether government discussions on emissions must be disclosed

High Court judge wants the Court of Justice of the EU to decide important legal issues concerning the limits of Cabinet confidentiality in the context of a European Directive on access to environmental information.

Mr Justice Garrett Simons said there is a “strong” argument that records related to government meetings on greenhouse gas emissions require to be disclosed but he wanted the CJEU’s opinion before making a final decision on the issue.

He decided to make the preliminary reference in proceedings by Right to Know CLG (RTK), a group campaigning for greater transparency, against An Taoiseach after it was refused access to all documents showing cabinet discussions on Ireland’s greenhouse gas emissions from 2002 to 2016.

In earlier proceedings, the High Court set aside the refusal decision and directed reconsideration of the request. Following that, it was decided access would be granted to one record, partial access would be granted to 17 records and access was refused in relation to 13 records.

RTK then challenged that decision in fresh judicial review proceedings.

In a judgment on Friday, Mr Justice Simons said it had been agreed the issues concerning Cabinet confidentiality should be dealt with first and other grounds of challenge would be addressed later.

The main issue before him at this stage concerned the circumstances, if any, in which the constitutional imperative that discussions at government meetings remain confidential must yield to the requirements of the Environmental Information Directive.

The answer turned, in large part, on how discussions at government meetings are to be characterised for the purposes of the Directive, he said.

The Directive attaches a special status to information relating to emissions into the environment and certain exceptions to disclosure otherwise available under the Directive do not apply to information on emissions, he noted. One of the main areas of disagreement between the sides is whether records of government meetings are subject to this so-called “emissions override”.

RTK argued the records fell within the emissions override exception under Article 4.2.a due to being the confidential “proceedings” of a public authority, thus making disclosure mandatory.

The Taoiseach argued the correct characterisation is “internal communications” of a public authority under Article 4.1.e which is not subject to the emissions override.

The judge noted Article 8b of the 2007 regulations transposing the Directive into law here provides a public authority “shall not” make environmental information available here if that would involve the disclosure of government meetings.

The High Court had since found, notwithstanding Article 8b, there is an obligation, even in the case of records of government discussions, to weigh the public interest served by disclosure against the interest served by refusal before a decision to refuse access can be made.

The judge said he had decided that, rather than follow two earlier judgments of 2010 and 2018 concerning Cabinet confidentiality, he would make a reference to the CJEU.

He was doing so because those earlier judgments were reached without the judges involved having an opportunity to consider the views of the CJEU on interpretation of the Directive.

Having studied those judgments, including a CJEU decision of January 2020 and two significant Advocate General Opinions, he had “a very real concern” the 2010 and 2018 judgments were not correctly decided, particularly in relation to the dividing line between the “internal communications of a public authority and its subsequent confidential deliberative “proceedings”.

He considered there are strong grounds for saying government meetings represent precisely the type of confidential deliberative “proceedings” envisaged by Article 4.2.a, meaning it would be mandatory to disclose records relation to emissions into the environment.

However, because the dividing line between “internal communications” and confidential “proceedings” is unclear, he was unable to determine conclusively, without guidance from the CJEU, which category the records of government meetings fall into.

The precise form of questions for reference will be decided later, after the sides have considered the judgment.