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8. fred logue access to environmental information

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8. fred logue access to environmental information

  1. 1. Access to Environmental Information Or is there?
  2. 2. Rocket science
  3. 3. Not Rocket Science
  4. 4. Meath County Council – SEA Breach
  5. 5. Summary – basic principles • Public authority – broad definition, including quangos and privatised/regulated entities • Environmental Information – Right of access • Exceptions – construed narrowly – burden on public authority to demonstrate • Public interest balance in all cases • Partial release • Emissions override
  6. 6. Main Irish court judgments • NAMA v Commissioner for Environmental Information [2013] IEHC 166 and [2015] IESC 51 • Limits to transposition by secondary legislation – cannot go beyond what is provided in directive • Purposive interpretation required • CEI should have made preliminary reference • Public authority shouldn’t have made a narrow decision limited to whether it was a public authority
  7. 7. Main Irish court judgments • Minch v Commissioner for Environmental Information [2017] IECA 223 • Whether National Broadband Plan was a measure affecting or likely to affect the environment • Document must have graduated from simply being an academic thought experiment into something more definite … however tentative, aspirational or conditional … which … is likely to affect the environment. • Commissioner is not required to make a judgment as to whether a plan or policy will ever be implemented
  8. 8. Main Irish court judgments • Right to Know v. An Taoiseach [2018] IEHC 372 • Request for access to cabinet discussions of Ireland’s GHG emissions • Constitutional guarantee of cabinet confidentiality – an absolute exemption? • Exceptions are exhaustive and balancing test in every individual case • Rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of European Union law (AG in Križan C-416/10) • Decision must reflect the fact that the process of engagement with the request was conducted in accordance with the letter and spirit of the Directive. • No formulaic decisions • Must be specific reasons relating to each record
  9. 9. It again shows that EU legislation can be a real game-changer and can shine light into dark, hush-hush corners usually left cobwebbed and undisturbed by unwelcome public intrusion.
  10. 10. Some issues • Equivalence/Effectiveness • AIE/FOI • Public authority stage • Administrative review • Not expeditious • Doesn’t use powers • Interim decisions • Judicial review • Generally progressive and affirming purposive approach • Scope of review
  11. 11. Equivalence • Doctrine of equivalence – EU rights must be treated no less favourably than equivalent domestic rights • FOI gives 4 month target on Information Commissioner to make a decision under domestic access to information rules • No such imposition on CEI under AIE • Result – seriously longer decision making time in AIE <4 Months < 12 Months FOI AIE FOI AIE 2017 63% 0% 98% 65% 2016 60% 4% 99% 26% 2015 53% 0% 91% 20%
  12. 12. Effectiveness • Must not be impossible in practice or excessively difficult to exercise EU law rights • What happens if a request for environmental information is made under FOI? • Usually happens because requester is unaware that they have to identify the AIE Regulations in their request (a provision not found in the Directive or AC) • Compare England where FOI/EIR integrated • EU law rights are denied in this case: • Fully/partially exempt bodies • More exemptions, lower threshold of harm • Class exemptions • No public interest balance in some cases • Search and retrieval fees • No emissions override • No route to CJEU • All because the requestor doesn’t say the magic words
  13. 13. What is environmental information • Vexed question when the information is not intrinsically environmental – 3(1)(c) • Not environmental information? • Procedural actions taken by public authorities in response to ACCC communications • National broadband plan to deliver wired or wireless infrastructure to 97% of land area of the country • Location and other details of development land owned by NAMA • Lobbying on energy and infrastructure matters • Consideration of legal aid for environmental litigation • Identity of the purchaser of large tracts of state owned forestry to be used for industrial purpose (e.g. wind farms, data centre, holiday camp) • Designation of competent authority for airport noise regulation • Decision maker not asking themselves “is access to this information consistent with the purpose of the Directive/AC” (See UK CoA in Henney and UKUT in Cieslik)
  14. 14. Typical AIE Responses
  15. 15. NO
  16. 16. Exemptions
  17. 17. Issues in public authorities – systemic failure to apply the law • Not environmental information – almost by default and attempt to divert request into FOI • Deemed refusals • No search • Missing parts of decision • No reasons • No reference to contents of the information • Reliance on exemptions outside of Regulations (e.g. commercial sensitivity, FOI Act) • Confusion with FOI Act • No framework for active dissemination
  18. 18. Issues at OCEI Stage • Baffling procedures – not really adversarial or investigative • Traps for the unwary – unintentional narrowing of the request, clarification of scope may be treated as a new request without any notice • Submissions of public authority not disclosed - ever • Often these are the only reasons put forward • In many cases these are the “Real reasons” • Powers never used – particularly power to produce information • “I am pleased to report that I had no need to apply these powers in 2017” • Delay • Threshold issues • Narrow literal interpretation of AIE Regulations/not engaging in purposive interpretation • Decision that refusal not justified but still no access to information • No mandate on active dissemination
  19. 19. What does this mean? • Admin review is equivalent to internal review and must be expeditious i.e. should be completed in within 1 month • Court procedure has same standard of review as administrative review – so it must be a de novo review, consider the information and decide whether or not to order release.
  20. 20. Issues at Judicial Stage • Standard of review read across from Deely (FOI case) into AIE Regulations without reference to Directive or its purposes. a) Primary fact not set aside unless no evidence b) Unreasonableness test for inferences drawn c) Inferences can be reversed if incorrect interpretation of documents d) Incorrect interpretation of the law is a ground to set aside a decision • In practice this means either refusal upheld or remitted back to CEI for further consideration • In practice, court does not consider requested information (despite point (c) of Deely) • Confirmed in Minch (High Court) – “There is no procedural or legal basis on which I could hear evidence with regard to the Report and the approach urged by the applicant would involve my engaging in an exercise.“ • Public authority may not participate – no obligation to put evidence on affidavit – how do we know PA is telling the truth or making full disclosure? • We need something similar to UKFTT and/or UKUT which is a low cost jurisdiction but with full judicial procedures incl. sworn evidence, review of fact and law, cross examination etc.
  21. 21. Litigation costs • Special costs rules – section 5 EMPA 2011 – one way cost shifting – makes litigation relatively risk free for requestor • Much simpler and no qualifications as are found in section 4 (enforcement type actions) • Not yet tested in courts • Issue primarily is that litigation seems to be prohibitively expensive for the CEI
  22. 22. Outlook • Friends of the Irish Environment v. CEI (Courts Service) – Whether the courts service is a public authority for the purpose of access to the litigation file in completed cases • R2K v. CEI (IBEC) – whether information on lobbying on infrastructure and energy policy is environmental information • R2K v. CEI (Raheenleagh) whether a wind farm subsidiary owned jointly by public authorities ESB and Coillte is a public authority • Redmond v. CEI (Coillte)– whether information on the sale of forestry to a private individual by Coillte is environmental information • R2K and Ireland – Communication to the ACCC – delays in administrative review indicate non-compliance by Ireland with AC

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