Introduction

The case of Right To Know CLG v. Commissioner For Environmental Information & Ors ([2021] IEHC 273) presents a pivotal interpretation of Directive 2003/4/EC concerning the definition of "public authority." The High Court of Ireland deliberated on whether certain constitutional bodies, notably the Office of the President of Ireland and the Council of State, should be automatically excluded from this definition or if such exclusions required explicit legislative action by the Member State.

The appellant, Right To Know CLG, sought access to environmental information under the European Communities (Access to Information on the Environment) Regulations 2007. The crux of the case revolved around whether the President and associated bodies were public authorities subject to information disclosure obligations or were exempt due to constitutional immunities.

Summary of the Judgment

The High Court, presided over by Mr. Justice Barr, examined whether the Office of the Secretary General to the President (OSGP) and the Council of State should be considered public authorities under Directive 2003/4/EC as transposed into Irish law. The Commissioner for Environmental Information had previously excluded these bodies from the definition of public authority based on constitutional immunities.

Justice Barr concluded that the exclusions provided in the Directive's third sentence of Article 2.2 were not automatic. Instead, they required Member States to actively exclude certain bodies through legislative measures. Since Ireland did not transpose this specific exclusion into its 2007 Regulations, the President and his staff, including the OSGP and the Council of State, fell within the definition of public authority.

However, the Court differentiated between the types of information requested. Access to documentation related to the President's speeches was granted, whereas requests pertaining to Council of State deliberations were denied, as they were integral to the legislative process and fell within existing exclusions.

Analysis

Precedents Cited

The judgment referenced several key cases and legal instruments:

• Flachglas Torgau GmbH v. Bundesrepublik Deutschland (C-204/09): This case clarified that exclusions under Directive 2003/4/EC's Article 2.2 are separate and independent, requiring explicit action by Member States to exclude certain bodies.
• The State (Walshe) v. Murphy and the Attorney General [1981] IR 277: Addressed the limits of presidential immunity, though the Court in the present case distinguished it as not directly applicable.
• Draper v. Attorney General [1984] IR 277; O’Malley v. An Taoiseach [1990] ILRM 460; Haughey v. Moriarty [1999] 3 IR 1: Reinforced the breadth of presidential immunity under Art. 13.8.1 of the Irish Constitution.
• NAMA v. The Commissioner for Environmental Information [2015] 4 IR 626: Emphasized the teleological approach in interpreting EU directives within national law frameworks.

These precedents underscored the necessity for Member States to actively legislate exclusions and highlighted the scope of constitutional immunities in Ireland.

Legal Reasoning

The Court employed a teleological approach, aligning the interpretation with both EU directives and the Aarhus Convention's principles. The third sentence of Article 2.2 of the Directive provides Member States the option to exclude bodies whose decisions are constitutionally immune from review. The Court reasoned that "may exclude" denotes permissive rather than mandatory action, necessitating explicit legislative measures to invoke such exclusions.

In Ireland's context, while the 2007 Regulations included exclusions for bodies acting in a judicial or legislative capacity (per the second sentence of Article 2.2), they failed to address the third sentence's discretionary exclusions. Consequently, without explicit legislative action, the President, OSGP, and the Council of State remained within the public authority definition.

Moreover, the Court recognized that making the President and associated bodies amenable to review under the Commissioner’s purview would infringe upon constitutional immunities, emphasizing the need for clear legislative intent to uphold such exclusions.

Impact

This judgment clarifies that:

• Exclusions under Article 2.2 of Directive 2003/4/EC require active legislative measures by Member States.
• Constitutional immunities do not automatically translate to exclusions from public authority definitions.
• Transparency obligations under environmental information access laws can extend to high-level governmental bodies unless specifically excluded.

Future cases will hinge on whether Member States exercise their discretion to exclude certain bodies when implementing similar directives. This decision reinforces the principle that transparency provisions must be explicitly incorporated into national legislation to be effective.

Complex Concepts Simplified

Directive 2003/4/EC

Also known as the Access to Environmental Information Directive, it mandates EU Member States to provide public access to environmental information held by public authorities. It embodies the Aarhus Convention's pillars: access to information, public participation, and access to justice in environmental matters.

Public Authority Definition

A public authority, under the Directive, typically includes government bodies and those performing public functions. However, exclusions exist for bodies acting in a legislative or judicial capacity or those whose decisions are constitutionally immune from review.

Teleological Approach

This method of legal interpretation focuses on the purpose and intent behind legislation, ensuring that the application aligns with the legislative objectives, especially pertinent in integrating EU directives into national law.

Constitutional Immunity

Under Art. 13.8.1 of the Irish Constitution, the President is not answerable to any court for exercising his powers and functions. This immunity extends to his staff and the Council of State, safeguarding the President’s actions from legal challenges.

Conclusion

The High Court's decision in Right To Know CLG v. Commissioner For Environmental Information underscores the necessity for explicit legislative action by Member States to exclude constitutionally immune bodies from definitions that subject them to information disclosure obligations. By affirming that such exclusions are not automatic, the Court ensures that transparency laws maintain their intended scope unless clearly limited by national legislation. This judgment reinforces the balance between governmental transparency and constitutional immunities, providing a clear precedent for future interpretations of similar legal provisions.