The Taoiseach has brought a High Court challenge to the Commissioner for Environmental Information’s decision ordering the release to a Dublin man of a document containing information of a 2003 Cabinet discussion of greenhouse gas emissions.
Commissioner Emily O’Reilly directed release of the document to Gary Fitzgerald after deciding a 2003 EU directive guaranteeing a right of access by the public to environmental information held by public authorities mandated that release.
She found the directive was framed to specifically exclude the refusal of a request on confidentiality-based grounds if that request related to information on emissions into the environment.
The commissioner said even confidentiality provided for by law was not sufficient to displace the presumption that environmental infromation relating to emissions will be released.
She added she “could not ignore” that the effect of regulations enacted here in 2007 with a view to implementing the EU directive was “at odds with the provisions and stated intent of the directive”.
The commissioner said she was conscious her decision conflicted with the constitutional protection of confidentiality of Cabinet discussions.
However, she added, the Taoiseach’s Department had failed to point to any case law which appeared to negative Mr Fitzgerald’s argument, where there is a clash between a directly effective EU measure and a national law, the EU measure is “supreme”.
In his appeal against that decision, the Taoiseach has made a preliminary argument the Commissioner had no power to consider such legal issues and had acted outside her jurisdiction in doing so. It is claimed the Commissioner has no jursidiction to determine whether the EU directive was properly implemented in national law or to determine whether it has direct effect here.
It is also argued the Commissioner’s decison breached the provisions of the Constitution relating to confidentiality of Cabinet discussions and breached the EC (Access to Informaiton on the Environment )Regulations 2007 (the 2007 Regulations) .
The appeal opened before Mr Justice Iarfhlaith O’Neill today and is expected to run for three days.
The proceedings arise from the March 30th 2007 request for environmental information from Gary Fitzgerald, Montgomery Court, Foley Street, Dublin, to the Department of the Taoiseach. He sought documents including minutes of meetings reporting Cabinet discussions on Ireland’s greenhouse gas emissions for the years 2002 to 2007 inclusive.
On May 14th 2007, having received no substantive reply, Mr Fitzgerald told the Department he was appealing to the Commissioner and also pointed out, since he had made his intial request, the 2003 directive had been transposed into Irish law through the making of the 2007 Regulations.
On June 13th 2007, the Department informed Mr Fitzgerald it was releasing eight documents to him and withholding 18. The Commissioner ultimately decided just one of the 18 documents - referred to as document number 5 - constituted a “report” of discussions at Cabinet on Ireland’s greenhouse gas emissions.
The other 17 documents include memos, aides memoire, briefing notes and background material for the Government relating to issues including Emisisons Trading Allocation, the Kyoto Protocol and the National Climate Change Strategy and Mr Fitzgerald accepted only document number 5 was at issue in his appeal.
In refusing to release document 5, the Taoiseach’s Department argued it was a note of actual comments made at a meeting of the Government on June 24th 2003 and was “specifically excluded from disclosure” by the Constitution. It also claimed Article 8 of the 2007 regulations mandated the Department not to make this information available and further argued Section 19 of the Freedom of Information Act prevented disclosure.
