Decision
Various Appellants and Coillte
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-124853-T4T4P0, [Plus 57 other cases]
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-124853-T4T4P0, [Plus 57 other cases]
Published on
Whether Coillte was justified in categorising requests as invalid under article 6(1)(c) of the Regulations and whether the Commissioner has jurisdiction to consider this issue.
1. Between 13 March and 3 May 2022, Coillte received a number of requests from various requesters. Each of the requesters provided a name and email address and specified that access to information was being sought under the AIE Regulations. Most, although not all, of these requests, requested that the information sought be provided to the requester by email.
2. In many cases, Coillte wrote to the appellant following their initial request, citing article 6(1)(c) of the Regulations which provides that a request for environmental information “shall state the name, address and any other relevant contact details of the appellant”. It noted that the requests met “only the final of these three requirements” having provided an email address or a “relevant contact detail”. Coillte’s correspondence went on to note that the request did not contain the appellant’s address and that it had “recently received a large volume of requests under the AIE Regulations in circumstances where the names stated as being those of the applicant are also the names of fictional characters from films, or of celebrities, artists, personalities and so on, or are otherwise suggestive of the possibility that they are not the actual names of the applicants concerned”. Coillte requested that the appellants “confirm that the name given by you in your application is your actual legal name” or that the appellants “provide [Coillte] with your actual name” and “state your current address”. As the appellants had already provided email addresses, it is to be assumed that what Coillte was seeking was the provision of a postal address. The appellants’ position however is that they are not required to provide their postal address to Coillte in circumstances where they have provided an email address. There is therefore a dispute between the parties as to the meaning of the word “address”.
3. The appellants who received such correspondence do not appear to have provided the confirmations requested by Coillte.
4. None of the appellants had received the information sought within the one-month timeframe set out in article 7(2) of the AIE Regulations. Each of the appellants therefore issued requests to Coillte to carry out an internal review. Some of the requests for internal review noted that the review was being sought as no environmental information had been provided to the requester, while some noted that since no response had been received from Coillte, the internal review was being sought on the basis of a deemed refusal of their request. Following each appellant’s request for an internal review, Coillte again wrote to them citing article 6(1)(c) of the AIE Regulations and setting out its position that the requests met “only the final of these three requirements” having provided an email address or a “relevant contact detail”. Coillte requested that the appellants “confirm that the name given by you in your application is your actual legal name” or that the appellants “provide [Coillte] with your actual name” and “state your current address”.
5. The correspondence went on to note that Coillte would only “entertain and process your request” once “sufficient and compliant information in these regards is provided” such that “in the absence of the provision of the required information, no decision has been (or is deemed to have been) or will be made in relation to your purported request, and you have, and will have, no entitlement under the Regulations to request an internal review in respect of the matter, or to appeal to the Commissioner against any decision”. It advised the appellants that it was not asking them to state why they were making the request but was “simply asking…for confirmation of your name and address” and that “unless and until [Coillte] receive[d] the information sought above, your request will not be processed”. It stated that it was not “refusing your underlying request” but was asking “that you provide the outstanding information required by article 6(1)(c) and by Coillte so that your request can be processed in accordance with the Regulations”.
6. Finally, Coillte noted that article 7(7) of the Regulations required it to “inform [an] applicant of [their] right of access to environmental information and the procedure by which that right can be exercised” and to “offer assistance to an applicant in this regard” where it received a request that “could reasonably be regarded as a request for environmental information” but which had not been made in accordance with article 6(1) of the Regulations. It informed the appellants that it was of the view that it had set out clearly “what is required in order to ensure that your purported request is made in accordance with article 6(1)(c), and in such a way as to facilitate you in exercising your right of access to environmental information”. Coillte advised the appellants to make Coillte aware if they required further assistance “regarding the proper submission of a request under the Regulations in the manner desired by Coillte”.
7. Between 13 June and 4 July 2022, the appellants appealed to my Office. This decision deals with 58 of those appeals although further appeals have also been received on the same issue.
8. The appellants dispute Coillte’s position that their requests are invalid in the absence of confirmation as to their legal names and addresses. Coillte’s position is that no valid requests have been made by the appellants in the absence of such confirmations as the requests received do not comply with article 6(1)(c) of the Regulations which states that “a request for environmental information shall state the name, address and any other relevant contact details of the applicant”.
9. Coillte also contends that since no valid request has been made, no decision or deemed decision has been made by it such that no appeal can be validly before my Office and I do not have jurisdiction to make a decision as to the manner in which article 6(1)(c) should be interpreted and applied.
10. My review in this case is therefore concerned with:
(i) whether the 58 appeals being considered are validly before me such that they are within the jurisdiction conferred on me by article 12 of the Regulations; and
(ii) if so, whether Coillte was justified in maintaining that the requests are invalid on the basis of article 6(1)(c) of the Regulations.
11. In carrying out my review, I have had regard to the submissions made by the appellants and Coillte. In addition, I have had regard to:
12. Before considering the substantive issue in this appeal, I consider it appropriate to address Coillte’s arguments with regard to my jurisdiction. I will also address Coillte’s request that I provide certain information to the appellants with regard to its position.
Does article 12 of the Regulations provide me with jurisdiction to consider these appeals?
13. Coillte argues that the jurisdiction conferred on me by article 12(3) of the Regulations does not permit me to accept or entertain these appeals. It submits that no valid requests have yet been made, as the appellants have not complied with the requirements of article 6(1)(c). It therefore argues that no decision has been made on the requests, rather, the requests remain open pending the confirmation of names and addresses. It submits that no internal review could have properly been requested by the appellants since, as matters stand, Coillte is assisting the appellants in seeking to exercise their rights under the AIE Regulations and is entirely willing to entertain and process their requests “once the required information is provided”. It continues by submitting that since no internal review could have been properly requested, no internal review decision has been made or can be deemed to have been made. Coillte contends, therefore, that the preconditions for an appeal to my Office are not present and are not properly capable of being accepted or entertained by me, as Commissioner, as my jurisdiction under article 12(3) of the Regulations is limited to entertaining appeals where “a decision of a public authority has been affirmed, in whole or in part, under article 11”.
14. Coillte’s argument turns on the interpretation of “request” as defined in the AIE Regulations. A “request” is defined in article 3 of the Regulations as “a request for environmental information pursuant to article 6”. Article 7(2) of the Regulations obliges a public authority to make a decision on a “request” as soon as possible and at the latest within one month from the date on which the request is received. Article 11(1) provides that where a request has been refused under article 7, the applicant may seek an internal review. Article 11(5) provides that a refused request includes a request which has been inadequately answered or “has otherwise not been dealt with in accordance with Article 3, 4 or 5 of the Directive”.
15. Article 12(3) provides that an applicant may appeal to the Commissioner where a decision of a public authority has been affirmed, in whole or in part, under article 11. Article 12(4) sets out that an appeal may be brought in circumstances where no internal review outcome has issued provided that it is brought within one month from the date such an outcome should have issued or an extension of time is granted by the Commissioner. Article 12(5) provides that following receipt of an appeal under article 12, the Commissioner shall –
(a)review the decision of the public authority,
(b)affirm, vary or annul the decision concerned, specifying the reasons for his or her decision, and
(c) where appropriate, require the public authority to make available environmental information to the applicant,
in accordance with these Regulations.
16. As noted above, “request” is a defined term in the AIE Regulations (although not in the Directive). Its definition is contained in article 3 of the AIE Regulations. There are many cases in which my Office, exercising its jurisdiction under article 12 of the Regulations, interprets defined terms contained in article 3 of the Regulations. This occurs in cases where an entity disputes that it is a “public authority” or that the information it holds is “environmental information” within the meaning of the Regulations. In those cases, no obligations under the AIE Regulations arise unless the entity is considered to be a “public authority” or the information is considered to be “environmental information”. In both cases, it is my Office that interprets the Regulations and applies them to the facts of a given case in order to make a decision on those issues. The parties to the appeal (and any other person impacted by the decision) are in turn entitled to appeal my decision to the High Court on a point of law.
17. What is at issue in this case is a point of law i.e. the legal interpretation of “request” as used in the AIE Regulations and the Directive. In this case, however, Coillte is arguing that the only recourse available to the appellants in circumstances where they disagree with Coillte’s interpretation of the Regulations is to initiate judicial review proceedings in the High Court. If Coillte is correct, and article 6(1)(c) is to be interpreted as requiring a requester to satisfy a public authority that a valid legal name and current postal address has been provided as part of a request, then requests have yet to be validly made and Coillte’s obligations under the AIE Regulations have yet to arise. However, if Coillte is incorrect in its interpretation of article 6(1)(c) of the Regulations and the appellants’ requests are valid, then, in refusing to proceed with those requests, it has made a deemed decision on the requests which amounts to an effective refusal. The proper interpretation of “request” in this case is therefore a threshold jurisdictional issue similar in many respects to other threshold jurisdictional issues considered by me as a matter of course. For example, if an applicant makes a request for information that is not “environmental information” or to an entity which is not a “public authority” within the meaning of the Regulations and the Directive, the obligations contained in the Regulations and the Directive do not technically arise for the entity to which the request has been made. However, both the Regulations and the Directive contain provisions which require an entity to which a request has been made to provide reasons for a refusal to deal with that request. It would defy both common sense and the purpose of the Directive if an entity could simply apply its own interpretations of those threshold issues without being subject to review by my Office and with the only course of action available to an applicant being that of judicial review.
18. The Supreme Court in NAMA, the Court of Appeal in Minch and Redmond, the High Court in RTÉ and the Court of Justice of the European Union in Fish Legal have all accepted the determination of threshold issues by my Office and its UK equivalent without comment. This type of analysis is carried out by statutory bodies all the time. For example, the Data Protection Commission determines whether the data at issue in a case before it is “personal data” within the meaning of the General Data Protection Regulation (2016/679) and the Data Protection Acts 1988 to 2018 in order to ascertain whether its statutory jurisdiction arises. Similarly, the Office of the Ombudsman determines whether a body is a “public body” within the meaning of the Ombudsman Acts 1980 to 2012. In addition, the Court of Justice has found, in the WRC case, that bodies tasked with the application of EU law must be permitted to adopt all the measures necessary to ensure that EU law is fully effective. It is implicit in such a finding that those bodies must be able to interpret the national law which tasks them with the application of EU law in order to determine whether that national law complies with EU law principles. Were this not the case, public authorities subject to EU law would be provided with a veto allowing them to bypass the scrutiny of the bodies who are specifically provided with the statutory function to apply it.
19. In considering whether I am entitled, pursuant to the jurisdiction conferred on me by article 12, to interpret the definition of “request” contained in the Regulations, I must have regard both to the Regulations and the Directive. As the Supreme Court has made clear in its decision in NAMA “th[e] specific obligation undertaken by Ireland as a member of the EU” requires that “the interpretation of legislation…implementing a directive” is approached “so far as possible, teleologically, in order to achieve the purpose of the directive” (para 10). This aligns with the Court of Justice’s approach to the interpretation of EU law which makes it clear that “the need for the uniform application of European Union law and the principle of equality require that the terms of a provision of European Union law which makes no express reference to the law of Member States, for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, which must take into account the context of that provision and the purpose of the legislation in question” (see Flachglas Torgau, para 37 and Fish Legal, para 42).
20. Adopting such an approach, there are two factors which satisfy me that I have jurisdiction to consider the present appeal. The first is article 6 of the Directive which provides as follows:
1. Member States shall ensure that any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5, has access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that or another public authority or reviewed administratively by an independent and impartial body established by law. Any such procedure shall be expeditious and either free of charge or inexpensive.
2. In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. Member States may further provide that third parties incriminated by the disclosure of information may also have access to legal recourse.
3. Final decisions under paragraph 2 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where information is refused under this Article.
21. Were I to accept Coillte’s position, the appellants in this case would be deprived both of the internal review mechanism and the opportunity to appeal to my Office. Their only opportunity to challenge Coillte’s position and determine whether, in fact, their requests were valid requests which had been “wrongfully refused or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5”, would be through what can often be a lengthy and expensive judicial review process. I accept that the special costs rule, provided for at section 3 of the Environment (Miscellaneous Provisions) Act 2011, would remove the risk that the appellants would be responsible for Coillte’s costs. However, they would bear the risk for their own costs. In addition, the application of the special costs rule in this case is not entirely clear since section 5 of the Environment (Miscellaneous Provisions) Act 2011 provides that this rule applies to “civil proceedings…instituted by a person relating to a request referred to in [article 6 of the Regulations]” and the essence of the dispute in this case is whether it concerns a request having regard to article 6 of the Regulations. The purpose of article 6 of the AIE Directive is to ensure effective and efficient access to justice. The acceptance of Coillte’s position with regard to jurisdiction would have a chilling effect since it would be more onerous for the appellants to challenge Coillte’s substantive position as to the proper interpretation of article 6(1)(c) of the Regulations by means of judicial review proceedings, increasing the likelihood that Coillte’s position would go unchallenged. In my view, this would be contrary to article 6, which makes it clear that an applicant must have an “expeditious and…free of charge or inexpensive procedure” open to them in the first instance to challenge what they consider to be a wrongful refusal or a failure to deal with an AIE request in accordance with the provisions of article 3, 4 or 5 of the AIE Directive.
22. The second factor weighing against Coillte’s position is that article 11(5)(c) of the AIE Regulations provides that a refused request includes a request which has “not been dealt with in accordance with article 3, 4 or 5 of the Directive”.
23. Article 3 of the Directive contains similar (although not identical) provisions to article 7 of the Regulations. Article 3(1) obliges Member States to ensure that public authorities are required to make environmental information held by or for them available to any applicant at his request and without his having to state an interest. “Request” is not a defined term in the Directive. Article 7(2) of the Regulations provides that a public authority must “make a decision on a request and, where appropriate, make the information available” within specified timeframes. No reference is made to “request” in article 3(2) of the Directive. Instead, it requires environmental information to be made available to an applicant within specified timeframes subject only to article 4 of the Directive, which deals with exceptions to the obligation to make such information available. Article 3(3) sets out the steps to be taken by public authorities where a request is formulated too generally while article 3(4) provides that a public authority should make information available to an applicant in the form or manner requested unless limited exceptions apply. Article 3(4) also provides that the reasons for a refusal to make information available, either in full, in part or in the format requested, shall be provided to an applicant within a specified timeframe. Article 3(5) obliges Member States, inter alia, to ensure that officials are required to support the public in seeking access to information, provide appropriate information, guidance and advice to the public and that practical arrangements are defined to ensure the right to access can be effectively exercised. Article 4 of the Directive sets out the limited circumstances in which requests for environmental information may be refused, none of which cover the circumstances of this case. Article 5 makes provisions with respect to charges for access to environmental information and is not relevant to the circumstances of this case.
24. The obligation provided for at article 3 of the Directive is to make environmental information available within a specified period, subject to the provisions of article 4 of the Directive, or, where that information is refused in whole or in part, to provide the applicant with the reasons for such refusal. A legitimate question therefore arises as to whether the appellants’ requests have “otherwise not been dealt with in accordance with articles 3, 4 or 5 of the Directive” which is one of the circumstances in which a request is considered to have been “refused in whole or in part” according to article 11(5) of the Regulations. Therefore, the appellants’ requests are arguably refused requests within the meaning of article 11(5) of the Regulations, which in turn entitles them to make requests for internal review in accordance with article 11(1) of the Regulations. Articles 12(3) and 12(4) allow an appellant to have recourse to my Office where a decision is affirmed by a public authority under article 11 or where no decision is notified by a public authority within the one-month timeframe set down by article 11(3) of the Regulations. Article 12(5) provides that where an appeal has been received, I shall review the decision of the public authority and affirm, vary or annul that decision. In this case, the decision might be interpreted as the decision not to deal with the appellants’ requests on the basis that Coillte did not consider those requests to be valid.
25. Article 12(5) of the Regulations, in my view, interpreted both in light of article 11 of the Regulations and articles 3, 4, 5 and 6 of the Directive, confers me with jurisdiction to affirm, vary or annul Coillte’s decision to refrain from processing the appellants’ requests unless and until confirmation of the appellants’ names and addresses were provided to it.
26. I am therefore satisfied that article 12 of the Regulations, interpreted teleologically having regard to the provisions and purpose of the AIE Directive and Aarhus Convention, provides me with jurisdiction to consider the substantive matter at issue in this appeal i.e. whether Coillte is justified in maintaining that the requests are invalid on the basis article 6(1)(c) of the Regulations.
27. Before proceeding to consider the substantive issue, I also think it necessary to address Coillte’s request, in its submissions to my Office, that my Office would “even if [it] were to disagree…inform the appellants…that it is Coillte’s belief [that the appeals are not properly before my Office], so that they might be aware of same in a timely fashion and might not be taken by surprise were this argument or objection to be raised and relied on by Coillte at a later stage”. This request is confusing in circumstances where it is preceded by a statement from Coillte that it had sent a letter to the requesters in all 58 appeals (a copy of which was enclosed with Coillte’s submissions) enclosing a copy of the same submissions Coillte had made to my Office and outlining that “it remains the view of Coillte that this matter does not come properly before the Commissioner for Environmental Information” and that “the proper course for any person who feels that Coillte’s refusal to process a request under the AIE Regulations is ultra vires or otherwise wrong in law is to apply to the High Court by way of judicial review”. It is therefore unclear why Coillte is asking my Office to communicate a position it has already communicated to the appellants.
28. As I am satisfied that I have jurisdiction to interpret the meaning of “request” as contained in the AIE Regulations, I will move on to consider the meaning of that term.
29. As outlined above, “request” is defined at article 3 of the AIE Regulations as a “request for environmental information pursuant to article 6”. Article 6 of the Regulations provides as follows:
(1) A request for environmental information shall –
(a) be made in writing or electronic form,
(b) state that the request is made under these Regulations,
(c) state the name, address and any other relevant contact details of the appellant.
(2) An applicant shall not be required to state his or her interest in making the request.
30. As also outlined above, “request” does not appear as a defined term in the AIE Directive nor are there any requirements set out in the Directive as to the format of a request. Instead, article 3(1) of the Directive simply states that “Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant at his request and without his having to state an interest”. An applicant is defined as “any natural or legal person requesting environmental information” and the only exceptions to the requirement to provide environmental information to an applicant, at their request, are contained in article 4 of the Directive. Article 4(1) of the Directive provides that a request may be refused where:
(a)the information requested is not held by or for the public authority to which the request is addressed;
(b)the request is manifestly unreasonable;
(c)the request is formulated in too general a manner (subject to the requirements in article 3(3) of the Directive that a public authority first engage with the applicant to reformulate the request);
(d)the request concerns material in the course of completion or unfinished documents or data;
(e)the request concerns internal communications, taking into account the public interest served by disclosure.
31. Article 4(2) of the Directive provides that environmental information may be refused if its disclosure would adversely affect:
(a) the confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law;
(b) international relations, public security or national defence;
(c) the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature;
(d) the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy;
(e) intellectual property rights;
(f) the confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for by national or Community law;
(g) the interests or protection of any person who supplied the information requested on a voluntary basis without being under, or capable of being put under, a legal obligation to do so, unless that person has consented to the release of the information concerned;
(h) the protection of the environment to which such information relates, such as the location of rare species.
32. Article 4 of the Directive does not, therefore, provide for the refusal of a request on the grounds that an applicant has not provided a legal name and address to the public authority in question. The provisions of article 4 are, in the main, transposed through articles 8, 9 and 10 of the Regulations.
33. That being said, article 6 of the Regulations does provide that a request shall “state the name, address and any other relevant contact details of the applicant”. However, my understanding of the Supreme Court’s decision in NAMA is that I must “approach the interpretation of legislation implementing a directive, so far as possible, teleologically, in order to achieve the purpose of the directive” (see para 10).
34. Coillte does not agree with this understanding and has argued that what the Supreme Court stated in NAMA was that it would be incorrect to approach the question of statutory interpretation of a provision like article 6(1)(c) solely through the prism of national law (see para 10). It submits, on that basis, that “clearly the Court contemplated that the starting point should…be to adopt the national approach” and that the Supreme Court “went on to intimate that if that approach led to an interpretation that was inimical to the achievement of the purpose of the Directive, it was necessary ‘in order to achieve the purposes of the Directive’ that the domestic approach should be broadened or leavened to include a teleological one, which would then serve to give the proper complexion to what otherwise appeared to be the plain meaning and import of the statutory language used”. Coillte submitted that such circumstance did not arise in this case as the wording of article 6(1)(c) of the Regulations is plain, clear and unambiguous and the requirement set out in that article is not in any way incompatible with the achievement of the purpose of the Directive.
35. Coillte argues that, in the first instance, the domestic rules of statutory interpretation mean that the primary approach to interpretation should be the literal approach whereby a provision is given its ordinary, literal meaning unless to do so would result in an absurdity or does not reflect the plain intention of the legislature. It relies on the decision of the High Court in C v Residential Institutions Redress Board in that regard and argues that it is clearly neither absurd nor contrary to the legislative intent to require basic personal details. It also notes that Recital 15 of the Directive provides that “Member States should determine the practical arrangements under which [environmental] information is effectively made available”.
36. In response to an observation by my Investigator that article 6(1)(c) does not make reference to the provision of a “legal” name as requested by Coillte, Coillte noted that it could not see any legal basis for a requester providing a pseudonym unless that was expressly provided for in the legislation and did not believe that, applying the ordinary and established rules of statutory interpretation, a court would interpret the word “name” to mean anything other than an actual legal name. It went on to note that it was unclear as to why the AIE Regulations might wish to accommodate the notion of a person making a request using a pseudonym, or not giving a name at all. It submitted that if the Regulations had envisaged anonymous requests or those made using a pseudonym, they would have either made express provision for such an eventuality or dispensed with the requirement for personal details altogether. It submits that the Regulations did neither and in fact inserted a specific requirement that the request be accompanied by “the most basic of personal detail – the requester’s name” such that the plain and ordinary language of article 6(1)(c) “is not open to any alternative formulation”.
37. Similarly, Coillte argues in favour of an interpretation of “address” as meaning a postal address. This is apparent from its communications to the appellants in which it makes it clear that it considers an email address to be a “relevant contact detail” and notes that the requests “do not state your address”. The appellants on the other hand argue that Coillte is not entitled to seek a postal address when they have already provided an email address. I note that the Oxford English Dictionary defines “address” as “the name of the place to which anyone’s letters etc. are directed” as well as a “place of residence”. The Cambridge Dictionary defines it both by reference to “address (home details)” that is “the number of the house, name of the road, and name of the town where a person lives or works, and where letters can be sent” and to “address (computer)” as “a series of letters and symbols that tell you where to find something on the internet or show where an email is sent to”. Coillte’s interpretation focuses solely on selective elements of those definitions.
38. I do not agree with Coillte’s position that the obligation to interpret the Regulations teleologically only arises where such an approach is necessary “to give the proper complexion to what otherwise appear[s] to be the plain meaning and import of the statutory language used”. As the Supreme Court emphasised in NAMA, the obligation to interpret the Regulations teleologically arises in large part because the Regulations are secondary legislation. I consider it useful to set out the Supreme Court’s findings in this regard in detail (see paras 8 to 11):
“8. It may be appropriate to pause here and make some observations on both the method, and terms, of the implementation of [the AIE Directive] into Irish law. If this Directive had been implemented by primary legislation, then some difficulty in interpretation might be lessened since even if the provisions of Irish law were interpreted as more extensive than required by the Directive, that would not pose any problem as the Directive already contemplates and permits the possibility that member states could adopt more extensive provisions. However, this Directive is implemented by statutory instrument pursuant to the provisions of the European Communities Act 1972. It is the making of law by a body other than the Oireachtas (in this case the Minister) but is protected from constitutional challenge because it benefits from the terms of the Constitution adopted on accession to what was then the European Economic Communities under what was then Article 29.4.3 (subsequently renumbered) which provided that no provision of the Constitution would invalidate any laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the European Communities or European Union as the case may be. This exemption however only extends to provisions “necessitated by the obligations of membership” and thus in this context permits the making of law by statutory instrument insofar as it faithfully implements a Directive pursuant to the obligations of Ireland as a member state to do so. If however a statutory instrument goes further than the implementation of the directive necessitates, it would to that extent be unconstitutional, since it would be the making of law by a body other than the Oireachtas, and not protected by the provisions of Article 29. There is thus a specific importance in Irish law in understanding the extent and terms of a directive, where implemented by secondary legislation. In addition to the obvious benefits therefore of democratic oversight that implementation by primary legislation would entail, that route would also avoid some of the difficulties of interpretation which arose in this case.
9. There is a further difficulty in this case as to the manner chosen for the implementation of this directive as distinct from the legal vehicle adopted. In principle, it might be said that there are two broad options open to a member state like Ireland in the implementation of directives which are not considered to already be covered by the provisions of national law. A state can simply adopt into national law the language and terms of the directive in effect placing the national emblem on what is and remains European language. Alternatively, if confident as to the reach, scope and implementation of the directive, it may adopt and use its own language to implement it in national law. That route has the benefit that the European norm to take effect in national law is in effect translated into the language and concepts of the national legal system, and may therefore be readily understood and applied. Either route therefore has its attractions. Here it will be apparent, that the approach has been a mix of the two. Superficially that might appear to be an unobjectionable belt and braces approach. But, as this case illustrates, it gives rise to real problems of interpretation. Subparagraph (a) to (c) [of the definition of “public authority” contained at article 3(1) of the Regulations] reproduces the terms of [the AIE Directive] (and therefore the [Aarhus] Convention) with no material change. Subparagraphs (i) to (vi) [of the definition of “public authority” contained at article 3(1) of the Regulations] are therefore clearly matters of national law but cannot, or at least should not, materially extend (or indeed reduce) the scope of the provision. The problem of interpretation posed in this case calls to mind the observations of the Caliph of Baghdad on the burning of the library of Alexandria quoted by Lord Hoffman in the United Kingdom House of Lords in Kirgin-Amgen Inc v. Hoechst Marion Roussel Ltd [2005] RPC 169: if it contained nothing that was not in the Koran it was superfluous, and if it contained something different it was dangerous. In the same way it can be said that if subparagraphs (i) to (vi) say something different to subparagraphs (a) to (c) then they are possibly dangerous and certainly difficult.
Interpretation
10. While it will be necessary to address the specific questions of interpretation arising here in some detail, it is necessary to make some general observations at this stage on the approach to the interpretation of a statutory instrument introduced into Irish law pursuant to the State’s obligations to implement in national law the provisions of a directive of the EU which itself was adopted in compliance with an obligation undertaken by the EU (and Ireland) under an international agreement. It does not seem to me to be possible, and if possible, would not be correct, to approach the question of statutory interpretation solely through the prism of national law, and that sometimes elaborate approach to statutory interpretation in Irish law in particular. There are rules for the interpretation of legislation introduced implementing an international treaty. In particular, this specific obligation undertaken by Ireland as a member of the EU requires that the courts approach the interpretation of legislation in implementing a directive, so far as possible, teleologically, in order to achieve the purpose of that Directive. But furthermore, the language used in this statutory instrument…is derived directly from [the AIE Directive] addressed to member states and intended to take effect in different national legal systems. That language is in turn derived from an international treaty negotiated between and agreed upon by a large number of international states with different legal systems.
11. In this particular context, it is important to bear in mind that the concepts of administrative law and public law can differ substantially between countries, and in particular between common law systems and civil law systems. It does not appear possible, or indeed lawful, therefore to address the meaning of this statutory instrument in isolation from that context. In particular, even the provisions of subparagraphs (i) to (vi), while clearly terms introduced by the Irish legislature, must nevertheless be understood as implementing the provisions of [the AIE Directive] (and indirectly the Convention) and for the reasons touched on above, ought not to go further (but not fall short of) the terms of the Directive. If even as a matter of purely domestic interpretation, the provisions of those subparagraphs might appear to fall short of what is required by the Directive, or go further, an Irish court might be required to adopt another interpretation which is consistent with the provisions of the Directive, if that is possible. Accordingly, in order to understand what the statutory instrument means and does in this case, it is necessary, perhaps first, to understand exactly what the Directive does and means, which in this case may also mean interpreting the provisions of the Convention”.
39. A number of observations can be made having regard to the remarks of the Supreme Court as set out above. Firstly, the reference to the “plain intention of the legislature” referred to in C v Residential Institutions Redress Board must be interpreted differently where a Directive has been transposed by way of secondary legislation as the involvement of the “legislature” in the Irish sense, has occurred by way of the European Communities Act 1972 which provides that a Minister may make regulations in order to give full effect to acts adopted by the institutions of the European Union. I also note that McGovern J in C relied on the provisions of the Interpretation Act 2005 as an interpretative tool, section 19 of which provides that a word or expression used in a statutory instrument has the same meaning in the statutory instrument as it has in the enactment under which the instrument is made. This would appear to lend support to the Supreme Court’s position that a statutory instrument transposing a Directive must be interpreted having regard to the purpose of that Directive.
40. Secondly, the clear statement of the Supreme Court is that the interpretation of legislation in implementing a directive is to be carried out “so far as possible” teleologically and not that a teleological approach is only to be undertaken where the national approach led to an interpretation that was “inimical to the achievement of the purpose of the Directive” as argued by Coillte.
41. Finally, the circumstances of this case bear some similarities with those giving rise to the NAMA decision. The NAMA case dealt with the interpretation of “public authority” as set out in article 3 of the Regulations and article 2 of the Directive. As the Supreme Court noted, the definition contained at article 3(1) of the Regulations replicates that contained at article 2 of the Directive but goes on to provide that a public authority includes what might be described as creatures of national law such as (i) a Minister of the Government; (ii) the Commissioners of Public Works in Ireland; (iii) a local authority for the purposes of the Local Government Act 2001. Similarly, the Regulations use the term “request”, which is also contained in the Directive, but provide for a definition of “request” which applies criteria not contained in the Directive. The definition of “request” is a term introduced therefore by Irish national law. The Supreme Court makes it clear that where “matters of national law” are at issue they “must be understood as implementing the provisions of the Directive” and “cannot, or at least should not, materially extend (or indeed reduce)” the scope of the provisions contained in the Directive. As was the case with the additions at subparagraphs (i) to (vii) of the definition of “public authority”, if the definition of “request” contained in the Regulations mean that the Regulations “say something different” to the Directive, this is “possibly dangerous and certainly difficult”. In order to address this question, I must, as the Supreme Court finds, “first understand exactly what the Directive does and means”.
42. The question then is what is meant and required by Directive? Coillte in its submissions, refers to Recital 15 of the Directive and submits that it is rarely, if ever, the case that a Directive will make provision for all relevant matters and arrangements, other than “the ‘core’ of what is required to be implemented in the domestic legal systems of the various member states”. It notes that matters of detail are left to the Member States to provide for in their individual domestic legal orders. It argues that the Regulations go no further than the latitude envisaged in the Directive and that article 6(1)(c) of the Regulations impose no limitation, burden or restriction on the exercise of rights that accrue pursuant to the Directive.
43. Coillte is correct to note that Recital 15 provides that “Member States should determine the practical arrangements under which [environmental] information is effectively made available”. Indeed, the nature of a Directive (as defined in article 288 of the Treaty on the Functioning of the European Union) is that it “shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and method”. However, the opening statement of Recital 15, and the obligations of Member States generally with regard to transposition, must be construed as requiring Member States to put in place arrangements which implement the requirements of the Directive. Recital 15 in fact goes on to note that those practical arrangements “shall guarantee that the information is effectively and easily accessible and progressively becomes available to the public through public telecommunications networks, including publicly accessible lists of public authorities and registers or lists of environmental information held by or for public authorities”. Consistent with this, the practical arrangements put in place by Member States under Article 3(5) must be “defined for ensuring that the right of access to environmental information can be effectively exercised”. In this context, the High Court has recently found that practical steps to ensure easy and efficient access to information, and which assist in the provision of information, are permissible under the AIE Directive, even if not expressly envisaged by the text of the AIE Directive (see Right to Know CLG v An Taoiseach). However, practical arrangements which do not ensure the effective exercise of the right of access to information, or which inhibit the right of access, would not be permissible under the AIE Directive.
44. As noted in paragraph 30 above, “request” does not appear as a defined term in the AIE Directive nor are there any requirements set out in the Directive as to the format of a request. “Applicant” is defined in the Directive as “any natural or legal person requesting environmental information” and no mention is made of any requirement for such a natural or legal person to provide their name or address. Recital 1 of the Directive notes that “increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment”. Recital 2 notes that the current AIE Directive is designed to expand the access granted under its predecessor. Recital 8 provides that “it is necessary to ensure that any natural or legal person has a right of access to environmental information held by or for public authorities without his having to state an interest” while Recital 9 states that “it is also necessary that public authorities make available and disseminate environmental information to the general public to the widest extent possible, in particular by using information and communication technologies”. Recital 16 provides:
“The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal shall be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal. The reasons for a refusal should be provided to the applicant within the timeframe laid down in this Directive.”
It is clear therefore that there is a presumption in favour of the disclosure of environmental information by public authorities.
45. Coillte argues that the requirement in article 6(1)(c) that a request state the name, address and any other relevant contact details of the applicant must be interpreted as requiring an applicant to provide their legal name. It submits that there is no authority for the proposition that reference to “name” could be interpreted as anything other than the legal name of the requester and that the authorities uniformly suggest that a legislative reference to a personal “name” must be a reference to a person’s name. It relies on Murphy v The Law Society [2010] IEHC 175 in support of this contention. It also submits that this interpretation is consistent with Recital 8 of the Directive which expressly refers to the right of access as vesting in a “natural and legal person” rather than a general right of access and argues that if the Directive bestows that entitlement on a natural person, it follows that there actually be such a person and that the request is not submitted in the name of a fictional person or using a pseudonym.
46. I am not convinced by Coillte’s argument in this respect. As noted above, Recital 8 provides that “it is necessary to ensure that any natural or legal person has a right of access to environmental information held by or for public authorities without his having to state an interest” (emphasis added). It is clear from the Directive and the Recitals referred to in paragraph 44 above that the Directive does in fact provide for a general right of access. In any event, only a natural or legal person can make an access request and therefore a general right of access is one applying to any natural or legal person. Recital 8 also makes it clear that a requester should not be obliged to reveal their interest in the information requested, a point considered in further detail below.
47. Coillte also argues that the requirement in article 6(1)(c) of the Regulations that a requester state their name, address and relevant contact details does not impose any burden on requesters and is not in any way inimical to, or incompatible with, the achievement of the purpose of the Directive.
48. With respect to Coillte, it appears to be slightly evasive as to the basis on which it considers that the requirement to provide a name, address and any other relevant contact details as part of a request is not incompatible with the provisions of the Directive. It maintains the position that “the requirement to state the requester’s name, address and relevant contact details does not in any remotely plausible sense have the propensity to cause (and has not, in these cases, caused) requests to be rejected” and that “nor could the requirements of [article 6(1)(c)] be construed as constituting an inhibition or a burden on requesters or in any way be construed as a requirement that runs contrary to the achievement of the purpose of the AIE Directive”.
49. Coillte’s position is essentially that the requests in this case “never got off the ground” but will be dealt with “once they are made in a compliant way” and “state the requester’s name and address as required”. Coillte’s initial correspondence with the appellants indicated that the name attached to the request was “suggestive of the possibility that [it was] not the actual name of the applicant” and asked the applicants to “confirm that the name given by you in your application is your actual legal name” or “provide us with your actual name” and to “state your current address”. Coillte was asked by my Investigator what exactly it was seeking from appellants by way of “confirmation” of the appellants’ names and addresses. It did not provide any further clarity in response to that request. It is clear however from its communications with the appellants that it was not satisfied that the names provided by them were their real names. None of the appellants appear to have confirmed that the name used in their request was their real name and instead maintain that they are not required to provide such confirmation. It is questionable whether, had they done so, Coillte would have been satisfied with a simple written confirmation or whether, as appears a plausible and logical next step, if it remained unsatisfied, it might have then sought proof of identity from an appellant. A requirement to provide such proof would make the procedure for making an AIE request more onerous and may dissuade potential requesters. Even a requirement to provide a legal name and address without any proof of identity or address may be enough to dissuade potential applicants. While Coillte have stated on a number of occasions that it is not requiring the appellants to “indicate why they are making the request, what connection (if any) they have with the information requested or seeking any other information concerning their interest (if any) in making the requests concerned”, in many cases, the inclusion of the requester’s legal name and address as part of the request might reveal their interest in making the request. For example, an individual who had previously made objections to a public authority in relation to a project with environmental impact might reveal their interest in environmental information by including their name as part of a request. The same is true of an individual who is required to provide their address in order to obtain information on a measure or activity in their locality with environmental impact. The same can also be said where the information is being sought by an organisation with particular environmental objectives. In those cases, requiring the applicant to identify themselves could amount to a requirement to state an interest, contrary to the express provisions of article 3(1) and Recital 8 of the Directive.
50. In my view, the situation envisaged by article 3 of the Directive is quite clear. An applicant i.e. any natural or legal person, makes a request to a public authority for environmental information. That information must be made available to an applicant within one month (and in exceptional cases two months), having regard to any timescale specified by the applicant and subject only to article 4 of the Directive. If a request is to be refused, either in whole or in part, then the public authority is required to provide reasons for such refusal within the one (or two) month timeframe. The only exceptions envisaged to the obligations provided for in article 3 of the Directive are contained in article 4 of the Directive. Those exceptions are outlined in paragraphs 30 and 31 and do not make any reference to failure on the part of an applicant to provide satisfactory confirmation of their name and address.
51. I note Coillte’s position that what has occurred in this case did not amount to a refusal on its part and that “a more accurate characterisation of the interaction between Coillte and the requesters is that the requesters have – at least for the time being – refused to provide the information necessary for Coillte to process the requests”. However, when viewed in light of the obligations set out at article 3 of the Directive, what has occurred is effectively a refusal to provide environmental information since the obligations set out at article 3 arise once any natural or legal person makes a request for such information. As noted previously, request is not defined in the Directive and the definition of “applicant” makes it clear that any natural or legal person requesting environmental information will bring about the obligations set out in article 3 to provide environmental information unless one of the exceptions set out in article 4 of the Directive applies.
52. The administrative arrangements set out in article 6 of the Regulations must be interpreted so that they do not “go further (but not fall short of) the terms of the Directive”. It is logical to expect that a natural or legal person seeking to be provided with environmental information must provide the public authority with sufficient contact details to enable that authority to provide the requested information. An interpretation of article 6(1) which requires a requester to make it clear that they are seeking environmental information and the contact details to which the information can be sent is therefore compatible with the Directive as it goes no further and does not fall short of the terms of that Directive. In this case, however, a request has been made, a name and adequate contact details have been provided enabling Coillte to respond to the request and Coillte has refused to consider the request unless confirmation of name and address is provided without making it clear to the appellants what, in fact, it would consider to be acceptable confirmation. Coillte essentially characterises the request as paused due to what it describes as the requesters’ non-compliance. In my view, however Coillte has sought to effectively refuse the request while also exempting itself from the obligations contained in article 3 of the Directive (to either provide the information requested or the basis on which it has been refused within one month from the date of the request). The approach adopted by Coillte further purports to remove the protections of article 6 of the Directive which provide the appellants with the entitlement to access an expeditious and inexpensive process where they consider that there has a been wrongful refusal or a failure to comply with the provisions of articles 3, 4 or 5 of the Directive.
53. I also note that article 7 of the Directive requires Member States to take the necessary measures to ensure that public authorities organise the environmental information which is relevant to their functions and which is held by them, with a view to its active and systematic dissemination to the public. While I accept that the jurisdiction conferred on me by article 12 relates to decisions on individual access requests and not directly to the obligations relating to proactive dissemination, the obligations contained at article 7 are relevant to my obligation to interpret the Regulations teleologically, having regard to the purpose of the Directive, when performing the functions conferred on me by article 12 of those Regulations. It is worth noting therefore, the comments of the Advocate General in Commission v Germany in which he observed that “Article 7, which requires periodic publication of general information on the state of the environment, appears to indicate that individual requests should, in principle, be on questions of detail” (see para 30). In other words, the view of the Advocate General was that the Directive provides for an obligation to proactively disseminate environmental information such that what might be described as “general information” would be available to members of the public without them having to make a request at all. Given that the Directive envisages that the vast majority of environmental information would be proactively disseminated without the need for individual requests, and that it specifies that in the event of individual requests a requester should not be required to state an interest in the information requested, it must be said that requiring an individual to reveal their identity to a public authority in order to request environmental information is inimical to the purposes of a Directive which aims “to achieve the widest possible systematic availability and dissemination to the public of environmental information” (see article 1(1) of the Directive) as it provides for an additional requirement which might dissuade potential requesters from seeking access to such information.
54. Having regard to all of the above, I interpret article 6(1)(c) of the AIE Regulations as seeking to ensure that public authorities have sufficient contact details for an applicant to enable the public authority to communicate with the applicant to ensure the effective right of access to environmental information. This naturally entails the provision of contact details which enable the public authority to seek clarification as to the scope of the request and which allow the public authority to comply with its duties under article 7(7) or (8) of the AIE Regulations. It also entails the provision of an address to which the public authority’s decision and any environmental information may be sent. In this context, I consider that the reference to a “name” in article 6(1)(c) simply requires the notification of a person who may be contacted by the public authority in relation to the request, whether that person’s true identity is disclosed or not. Similarly, the reference to “address” simply requires that a public authority be provided with a method of contacting the requester. This interpretation aligns with a purposive approach to interpretation of the Regulations which sees the entire scheme of article 6 of those Regulations as facilitating communication with a requester for the purposes of dealing with their AIE request. The interpretation put forward by Coillte, on the other hand, amounts to a narrow and selective approach which not only ignores the fact that article 6(1)(c) contains no reference to a requirement to provide a “legal” name and the fact that “address” has more than one plain and ordinary meaning. It also fails to take account of the underlying purpose of both the Regulations and the Directive.
55. Even if Coillte is correct and I must adopt an interpretation of article 6(1)(c) which requires an appellant to reveal their identity to a public authority in order to have their AIE request processed, as I have already outlined above, I consider that such an interpretation would be contrary to the purpose of the Directive. I would therefore be required to disapply article 6(1)(c) as a matter of EU law given that the Court of Justice in the Workplace Relations Commission case found that “bodies called upon, within the exercise of their respective powers, to apply EU law are obliged to adopt all the measures necessary to ensure that EU law is fully effective, disapplying if need be any national provisions or national case-law that are contrary to EU law” and “must neither request nor await the prior setting aside of such a provision or such case-law by legislative or other constitutional means” (see para 50). It is not necessary, however, for me to disapply article 6(1)(c) of the Regulations given my finding above that it can be interpreted teleologically so as to comply with the underlying purpose of the Directive.
56. Having carried out a review under article 12(5) of the AIE Regulations, I annul Coillte’s decision and direct it to process the appellants’ requests in accordance with the AIE Regulations without seeking any further confirmation relating to the appellants’ names or addresses unless necessary to facilitate correspondence with regard to those requests.
57. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Ger Deering, Commissioner for Environmental Information
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