Commissioner for Enviromental Information v Coillte Teoranta & Anor (Approved)

Factual and Procedural Background

This opinion concerns an application by the Appellant for their costs in proceedings related to a request for documents under the Access to Information on the Environment Regulations ("AIE Regulations"). The Appellant sought access to documents from Company A, which refused the request. The matter was appealed to the Commissioner for Environmental Information (the Commissioner). The case proceeded as a case stated under Article 12(9)(a) of the AIE Regulations. The Appellant seeks costs primarily against Company A and, alternatively, against the Commissioner. Neither the State nor other parties seek costs. The Court was asked to determine the appropriate allocation of costs under the Legal Services Regulation Act 2015, considering recent case law, including the Court of Appeal's decision in Higgins v IAA and the Supreme Court decision in ELG v HSE.

Legal Issues Presented

1. Whether Company A qualifies as a public body under the Freedom of Information Act 2014 ("FOI Act") and can rely on its protections.
2. The extent to which the FOI Act provides protection for confidentiality, including commercial and industrial confidentiality.
3. The interaction between the AIE Regulations and the FOI Act, specifically whether the FOI Act constitutes "law" protecting confidentiality under Articles 8(a)(iv) and 9(1)(c) of the AIE Regulations.
4. The appropriate allocation of costs between the parties, particularly considering the role of the Commissioner in raising certain issues.

Arguments of the Parties

Appellant's Arguments

• The Appellant challenged Company A's reliance on the FOI Act on the basis that Company A is not a public body subject to the FOI Act.
• The Appellant did not dispute that the FOI Act includes protection on grounds of confidentiality generally.
• The Appellant made submissions on the question raised by the Commissioner regarding whether the FOI Act's protections constitute a species of confidentiality.

Company A's Arguments

• Company A contended that it falls within the scope of the FOI Act and thus is entitled to rely on its confidentiality protections.
• Alternatively, Company A argued that Article 8 of the AIE Regulations creates a stand-alone confidentiality protection independent of the FOI Act.
• Company A argued that the Commissioner should bear the costs of the entire proceedings.

Commissioner's Position

• The Commissioner raised the issue of the interaction between the AIE Regulations and the FOI Act, specifically questioning whether the FOI Act protections constitute true confidentiality.
• The Commissioner took a neutral position at the hearing and opposed the Appellant's costs application against it.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first recognized that the case stated procedure under the AIE Regulations generally follows the normal costs regime, with the exception of Regulation 12(9)(b), which allows costs to be ordered against public authorities. The Court analyzed the two main issues: (1) whether Company A could rely on the FOI Act protections, and (2) whether the FOI Act protections constitute a species of confidentiality recognized under the AIE Regulations.

The Court found that the issue of Company A's status under the FOI Act and its entitlement to rely on its protections was determined against Company A. Accordingly, Company A should bear 50% of the Appellant's costs, reflecting the approximate share of court time devoted to this issue.

Conversely, the question whether the FOI Act exemption represented true confidentiality was an issue initiated and raised solely by the Commissioner. Although the Appellant made submissions on this point, it was not originally part of their appeal. The Court rejected Company A's submission that the Commissioner should presumptively bear all costs, noting that case stated procedures do not alter the normal costs principles and that Regulation 12(9)(b) contemplates costs orders against public authorities.

However, because the Commissioner raised the confidentiality issue and required the Court's assistance to resolve it, the Court held that the Commissioner should bear 50% of the Appellant's costs. The Commissioner had taken a neutral stance but could not be said to have "lost" in the traditional sense; nonetheless, the costs incurred by the Appellant in responding to this issue should be borne by the Commissioner.

Holding and Implications

The Court made a costs order with the following core rulings:

• Company A is ordered to pay 50% of the Appellant's costs relating to the issue of Company A's status and reliance on the FOI Act.
• The Commissioner is ordered to pay 50% of the Appellant's costs relating to the issue of whether the FOI Act protections constitute confidentiality, an issue raised by the Commissioner.

The decision directly affects the allocation of costs between the parties in this proceeding. No broader legal precedent was established beyond confirming the application of existing costs principles to case stated procedures under the AIE Regulations and clarifying the Court's approach to costs when issues are raised by a public authority such as the Commissioner.