Right To Know CLG v Commissioner For Environmental Information & Ors (Approved)

Factual and Procedural Background

The Appellant made two requests in 2017 under the European Communities (Access to Information on the Environment) Regulations 2007 ("the 2007 Regulations") for environmental information relating to two speeches by the President of Ireland and documentation considered by the Council of State advising the President on two Bills under Article 26 of the Constitution. The Notice Party, representing the Office of the Secretary General to the President, did not respond, which the Appellant treated as refusals and appealed to the Commissioner for Environmental Information ("the first Respondent"). The Commissioner refused to direct the Notice Party to produce the requested documentation, relying on constitutional immunity under Article 13.8.1 of the Constitution. The Appellant appealed the Commissioner's decisions to the High Court on points of law.

Legal Issues Presented

1. Whether the Commissioner was correct in holding that the Notice Party was excluded from the definition of a public authority under Directive 2003/4/EC ("the Directive") pursuant to the third sentence of Article 2.2 of the Directive, due to constitutional immunity under Article 13.8.1 of the Constitution.
2. Whether the immunity conferred on the President under Article 13.8.1 extends to the Notice Party and the Council of State in relation to the requested information.
3. Whether the exclusion in Article 2.2 of the Directive requires a Member State to take a formal step to exclude such persons or bodies, or whether exclusion arises automatically by operation of constitutional immunity.
4. The legal effect and relevance of the 2018 Amendment Regulations which explicitly exclude the President, the Notice Party, and the Council of State from the definition of public authority.

Arguments of the Parties

Appellant's Arguments

• The phrase "may exclude" in Article 2.2 of the Directive provides Member States an option to exclude persons or bodies whose decisions enjoy constitutional immunity, but such exclusion is not automatic and requires a formal step during transposition into domestic law.
• The Irish Government did not exercise this option in the 2007 Regulations; therefore, the Notice Party falls within the definition of a public authority and must furnish the requested documentation.
• The 2018 Regulations, which explicitly exclude the President, the Notice Party, and the Council of State, were enacted after the requests and thus cannot have retrospective effect to deny access to information requested prior to their enactment.
• The requests for documentation concerning speeches and Council of State advice do not engage the President's constitutional immunity under Article 13.8.1, as they do not relate directly to the exercise of constitutional powers or functions.
• The President’s speeches, being ceremonial, fall outside the scope of constitutional powers and functions, thus the related documentation should be accessible.
• The Council of State's advice in relation to the Bills does not constitute a legislative function and should not be excluded from the definition of public authority.
• Reference to the decision in State (Walshe) v. Murphy was made to argue that the President can be subject to review in certain circumstances.
• Emails obtained from officials indicate that the 2007 Regulations did not adequately provide for the President's immunity, prompting the 2018 Regulations to "plug the hole".
• Even if the President or his staff were made answerable to the Commissioner, it would not necessarily make the President personally answerable to a court.
• The matter should be remitted to the Commissioner for reconsideration in light of these arguments.

Respondents' Arguments

• The immunity of the President under Article 13.8.1 of the Constitution is broad and well-established, protecting the President from being answerable to any court or legislature for acts done in the exercise of constitutional powers and functions.
• The immunity extends to the Notice Party (the President’s support staff) and the Council of State, as they assist and advise the President in exercising constitutional functions.
• The making of speeches by the President as Head of State is an exercise of constitutional powers and thus immune from challenge.
• The Council of State’s role in advising the President on a possible reference under Article 26 is part of the legislative process and accordingly excluded from the definition of public authority under Article 2.2 of the Directive and Article 3(2) of the 2007 Regulations.
• The Commissioner’s powers under Article 12 of the 2007 Regulations envisage recourse to courts, meaning making the President or his staff answerable to the Commissioner would effectively expose them to judicial review, contrary to constitutional immunity.
• The 2018 Regulations merely clarify the existing legal position and were not relied upon by the Commissioner in his decisions.
• The decision in State (Walshe) v. Murphy is distinguishable as it concerned an act of the Executive, not the exercise of constitutional powers by the President.
• The constitutional immunity is a prohibition on any legal review or analysis of the President’s exercise of powers, not merely immunity from sanctions or orders.
• The immunity is fundamental and would be rendered meaningless if it did not extend to the President’s support staff and advisory bodies.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the interplay between constitutional immunity under Article 13.8.1 of the Constitution and the definition of "public authority" under Directive 2003/4/EC and its transposition into Irish law by the 2007 Regulations. The central question was whether the exclusion in the third sentence of Article 2.2 of the Directive operates automatically for persons or bodies enjoying constitutional immunity at the date of the Directive's adoption, or whether Member States must take affirmative steps to exclude them during transposition.

The Court noted that the Directive uses the term "may exclude," indicating a discretionary option for Member States rather than an automatic exclusion. This interpretation aligns with the opinion of Advocate General Sharpston in the Flachglas case and the CJEU judgment, which recognized two separate and independent exclusions in Article 2.2.

The Court observed that Ireland transposed the exclusion for bodies acting in a judicial or legislative capacity (second sentence of Article 2.2) into the 2007 Regulations but omitted any provision corresponding to the third sentence. This omission suggests that Ireland chose not to exclude persons or bodies enjoying constitutional immunity from the definition of public authority at that time, thereby adopting a more expansive approach to access to environmental information.

The Court found that the constitutional immunity under Article 13.8.1, while broad, conflicted with the Directive and the 2007 Regulations as transposed. Pursuant to Article 29.4.6 of the Constitution, EU law and implementing legislation prevail over conflicting constitutional provisions. Consequently, the President, the Notice Party, and the Council of State fall within the definition of public authority under the Directive and the 2007 Regulations unless excluded by a legislative provision.

The Court further held that the immunity enjoyed by the President extends to the Notice Party and the Council of State, as they assist or advise the President in exercising constitutional powers. However, making these entities amenable to review by the Commissioner and potentially to judicial review would contravene the constitutional immunity, effectively making the President answerable to the courts.

Regarding the 2018 Regulations, the Court found that the Commissioner did not rely on them in his decisions but regarded them as clarifying the existing legal position. The Court expressed skepticism about this characterization, noting that the enactment of the 2018 Regulations indicated a formal step taken by the government to exclude these entities, which had not been done in 2007.

On the specific requests, the Court held that the request for documentation concerning the President's speeches relates to the President and the Notice Party as public authorities under the Directive and that the Commissioner erred in excluding them. Conversely, the request for documentation held by the Council of State relates to its role in the legislative process and is properly excluded from the definition of public authority under the Directive and 2007 Regulations.

The Court also addressed procedural and evidential matters, ruling that new evidence not before the Commissioner could not be considered on appeal and that communications between the Commissioner and the Department were not improper or determinative.

Holding and Implications

The Court made the following rulings:

• The appeal is allowed insofar as it relates to the request for documentation concerning the speeches made by the President, and the Commissioner's finding that the Notice Party was not a public authority at the time of that request is set aside.
• The matter is remitted to the Commissioner for reconsideration in light of the Court's judgment regarding the speeches documentation request.
• The appeal is dismissed in respect of the Commissioner's decision refusing access to the Council of State documentation, affirming that the Council of State was acting in a legislative capacity and thus not a public authority under the Directive.
• A stay on the judgment is granted for 28 days from perfection of the final order, with any notice of appeal extending the stay until final determination by the Court of Appeal.
• Costs are to be determined following submissions from the parties.

The Court's decision clarifies that constitutional immunity under Article 13.8.1 does not automatically exclude the President and associated offices from the definition of public authority under the Directive absent explicit legislative exclusion. This establishes that EU law and implementing regulations may override conflicting constitutional immunities in this context. However, the Court recognizes the legislative exclusion of the Council of State due to its legislative function. The ruling requires the Commissioner to reconsider access to the President’s speeches documentation, potentially increasing transparency in environmental information held by offices enjoying constitutional immunity unless explicitly excluded by law.