RTÉ refusal to release documents on climate change must be reconsidered – Judge

RTÉ's refusal to release documents relating to its reports on climate change issues has to be reconsidered by the environmental information watchdog, the High Court has ruled.

Mr Justice Max Barrett found the Commissioner for Environmental Information was incorrect in finding the broadcaster was not obliged to process a freedom of information group's request for it.

The case was brought by Right to Know Clg (RTK), a voluntary not-for-profit organisation set up by people in the media who believe in making more documents available about how Government and public resource allocation decisions are made.

It was against the Commissioner who holds an independent statutory office, which reviews decisions on access to environmental information by public bodies. RTÉ was a notice party.

Mr Justice Barrett found the Commissioner fell into legal error in his December 2019 decision and ordered it be set aside. He sent the matter back to the Commissioner for fresh consideration.

The Commissioner is required to deal with information request matters in accordance with European Communities Access to Information on the Environment Regulations 2007 to 2018.

The judge said the question that arose in this case was whether a bundle of emails in the possession of RTÉ were environmental information under the regulations.

RTÉ considered the emails – which it said were public correspondence/feedback – were not environmental information. The RTK group had also sought documents on the creation of policies/guidelines on climate change reporting for which RTÉ said it had no records.

In his decision backing up RTÉ’s refusal to process the RTK application, the Commissioner said, among other things, broadcasting or reporting was not a “measure or activity” as defined by the regulations.

He also said broadcasting or reporting is not a plan, policy or programme with proposed actions that are likely to affect the environment or an activity akin to the submission of a statement of views by a public authority in planning permission proceedings.

Rather, RTÉ’s function is carried out in the exercise of press freedom, which is regarded as an important constitutional and European Convention right, he said.

Mr Justice Barrett found the Commissioner erroneously concluded, contrary to the regulations and to previous European and national decisions, that broadcasting on climate change was not a measure affecting or likely to affect the environment.

He also found the Commissioner erroneously subjected the emails to an environmental impact threshold test contrary to an express finding in a previous European case.

The judge said the Commissioner also erroneously concluded that broadcasting on climate change by the national broadcaster is not capable of affecting the environment through its impact on public behaviour.

The Commissioner also took account of an irrelevant consideration in relation to the definition of “environmental information” and erred in the application of the regulation governing this matter.

The judge said given his decision the RTK group had an “answerable case” to be awarded costs but he would hear from the parties later in relation to that.