Right to Know v An Taoiseach (Cabinet Confidentiality) (Approved)

Factual and Procedural Background

The proceedings arise from a request made by the Applicant on 8 March 2016 for access to environmental information concerning cabinet discussions on Ireland’s greenhouse gas emissions from 2002 to 2016. This request was initially refused on 5 May 2016 and the refusal was affirmed after internal review on 10 June 2016.

The Applicant challenged the refusal by way of judicial review ("the first judicial review proceedings"). The High Court partially upheld the Applicant’s challenge, setting aside the 10 June 2016 decision and remitting the request for reconsideration. A fresh decision on remittal was made on 16 August 2018, granting access to some records, partial access to others, and withholding access to the remainder. The reasons included characterising cabinet discussions as “internal communications” of a public authority and invoking the constitutional principle of cabinet confidentiality.

The Applicant commenced these judicial review proceedings ("the second judicial review proceedings") to challenge the decision on remittal. The hearing took place over three days starting 17 November 2020. It was agreed that issues relating to cabinet confidentiality and certain procedural objections raised by the Respondent would be addressed first, with other grounds of challenge deferred.

During the hearing, the issue of whether the Applicant was precluded by the doctrine of res judicata from re-litigating the “characterisation” issue was highlighted. Supplemental written submissions were exchanged in early 2021, including consideration of a recent Court of Justice judgment. The parties did not seek to reopen oral hearing and rested on written submissions.

Legal Issues Presented

1. Whether meetings of the Government are to be characterised as “internal communications” or as “proceedings” of a public authority for the purposes of the Environmental Information Directive.
2. Whether the Applicant was required to exhaust its statutory right of appeal to the Commissioner for Environmental Information before seeking judicial review.
3. The applicability of the doctrines of precedent and res judicata (issue estoppel) to preclude the Applicant from re-litigating the characterisation issue.
4. Whether a reference should be made to the Court of Justice of the European Union for a preliminary ruling on the interpretation of the relevant provisions of the Environmental Information Directive.

Arguments of the Parties

Applicant's Arguments

• The characterisation of government meetings as “internal communications” is incorrect; they should be characterised as “proceedings” subject to mandatory disclosure under the Environmental Information Directive, particularly regarding information on emissions.
• The procedural objections raised by the Respondent, including failure to exhaust statutory appeal rights and res judicata, are not well founded.
• There is a need for a preliminary ruling from the Court of Justice to clarify the interpretation of the Directive’s provisions.
• The Applicant’s conduct in initiating judicial review rather than appealing to the Commissioner was reasonable given the complexity of EU and domestic constitutional law issues and the limited jurisdiction of the Commissioner.

Respondent's Arguments

• Records of meetings of the Government should be characterised as “internal communications” of a public authority, not “proceedings”.
• This characterisation means that the “emissions override” exception to disclosure does not apply, allowing refusal of access subject to a balancing test.
• The Applicant should have exhausted its statutory right of appeal to the Commissioner before seeking judicial review.
• The Applicant is precluded by the doctrines of precedent and res judicata from re-litigating the characterisation issue, as it was conclusively decided in earlier proceedings involving the same parties.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court identified the core legal question as the correct characterisation of government meetings under the Environmental Information Directive: whether they constitute “internal communications” or “proceedings” of a public authority. This distinction is crucial because the “emissions override” requires mandatory disclosure if the information relates to emissions into the environment, but only applies to “proceedings” and not “internal communications.”

Domestic High Court case law (Cabinet Confidentiality No. 1 and No. 2) had previously characterised government meetings as “internal communications,” thereby allowing refusal of access subject to a balancing test of public interest. The Court acknowledged the binding nature of these judgments under the doctrines of precedent and res judicata, noting that the Applicant had not appealed the earlier decisions.

However, the Court exercised its discretion to allow the Applicant to re-litigate the characterisation issue, balancing the constitutional right of access to courts and the public interest in finality. The Court considered the risk that strict application of res judicata could perpetuate a misinterpretation of EU law, particularly as the previous judgments predated recent significant jurisprudence of the Court of Justice of the European Union (CJEU) and Advocate General Opinions on the Directive.

The Court found the dividing line between “internal communications” and “proceedings” unclear and noted that meetings of the Government, given their constitutional significance and deliberative nature, may be more accurately characterised as “proceedings.”

Accordingly, the Court decided to refer questions to the CJEU for a preliminary ruling to obtain an authoritative interpretation of the relevant Directive provisions and the applicability of res judicata in this context.

On the procedural objection concerning failure to exhaust the statutory right of appeal to the Commissioner for Environmental Information, the Court found that in the special circumstances of this case, it was reasonable for the Applicant to proceed directly to judicial review. This was due to the complexity of the issues involving both EU and domestic constitutional law and the limited jurisdiction of the Commissioner, who could not resolve constitutional questions.

The Court also noted that the statutory appeal process would likely have resulted in the matter returning to the High Court, thus negating the utility of requiring exhaustion of that appeal. The Court emphasized that the Applicant was entitled to rely on earlier High Court guidance indicating judicial review as the appropriate remedy.

Holding and Implications

The Court allowed the Applicant to pursue the “characterisation” issue despite earlier contrary High Court rulings, and decided to make a reference to the Court of Justice of the European Union for a preliminary ruling on the interpretation of the Environmental Information Directive, including the applicability of res judicata in this context.

The Court exercised its discretion to hear the judicial review notwithstanding the Applicant’s failure to exhaust the statutory appeal to the Commissioner, considering the special circumstances and complexity of the legal issues involved.

The direct consequence is that the matter will proceed in this court pending the CJEU’s ruling, and the Applicant may advance its arguments on characterisation. The Court indicated that any prejudice to the Respondent caused by duplication of proceedings may be addressed by an appropriate costs order at the conclusion of the litigation.

No new precedent was established by this judgment on the substantive characterisation issue; rather, the Court decided to seek further authoritative guidance from the CJEU before making a final determination.