Decision
Right to Know and Radio Teilifís Éireann
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-108819-S8Z3Y7
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-108819-S8Z3Y7
Published on
Whether the information requested by the appellant is environmental information and whether RTÉ is a public authority within the meaning of article 3(1) of the AIE Regulations.
1. On 24 November 2018, the appellant requested “copies of any records held relating to how RTÉ should report on climate change issues” and “copies of any records held relating to the creation of policies and guidelines on climate change reporting” dating from 1 June 2018 to the date of the request.
2. On 20 December 2018, RTÉ issued a decision on the request in which it set out firstly that it did not hold any records relating to the creation of policies and guidelines on climate change reporting. It noted that while it did hold some information relating to how it should report on climate change issues “in the form of correspondence and feedback from members of the public”, it did not consider that information to be “environmental information” within the meaning of the definition set out at article 3(1) of the AIE Regulations. The Original Decision-Maker outlined that they did not consider the information to be captured by paragraphs (a), (b), (e) or (f) of the definition. They also found that the correspondence could not be read as “measures or activities” affecting the environment or designed to protect the environment. Referring to the decision of Hogan J in Minch v. Commissioner for Environmental Information [2017 IECA 223 ], they concluded that the correspondence and feedback did not give rise to a plan or policy that would impact the environment. Neither did the Original Decision-Maker consider the correspondence to constitute “reports on the implementation of environmental legislation” within the meaning of paragraph (d) of article 3(1).
3. The appellant sought an internal review of the decision on 21 December 2018 on the basis that RTÉ was defining environmental information too narrowly.
4. The internal review outcome, which was provided to the appellant on 25 January 2019, upheld the original decision that the information requested was not “environmental information”.
5. The appellant appealed to my Office on 2 February 2019. A decision was issued on that appeal on 6 December 2019 affirming RTÉ’s position. Right to Know successfully appealed that decision to the High Court. The High Court issued its judgment in April 2021 in Right to Know v the Commissioner for Environmental Information & Raidió Teilifís Éireann (RTÉ) [2021] IEHC 353. The High Court judgment set aside the decision and remitted the matter to my Office for further consideration.
6. In June 2021, following remittal of the matter, RTÉ granted partial release of the information in question i.e. the correspondence and feedback received from members of the public as to how RTÉ should report climate change. I will refer to this information as “the Emails”. RTÉ contacted my Office to advise that the Emails had been released to the appellant but that “the names of individuals and, where included, their addresses and mobile phone numbers” had been redacted from the Emails “to protect the personal information of the authors of the emails”. In further correspondence with my Office, RTÉ confirmed that it had partially released the Emails without prejudice to its position that the Emails did not constitute “environmental information” within the meaning of the AIE Regulations.
7. As noted above, the Emails have been partially released to the appellants. While the AIE Regulations do allow the refusal or partial refusal of environmental information in defined circumstances in which it can be said that the interest in refusal outweighs the public interest in disclosure, the applicability of those grounds depends on whether the information in question constitutes “environmental information”. RTÉ maintains that the Emails do not constitute “environmental information” while the appellant is of the view that they do. My review in this case is therefore concerned with whether the Emails come within the definition of “environmental information” contained in article 3(1) of the AIE Regulations and this is the matter which was remitted to my Office for further consideration by order of the High Court.
8. A further issue arises for consideration by virtue of the fact that in another appeal to my Office, concerning a separate decision made by RTÉ under the AIE Regulations, RTÉ has argued that it does not come within the definition of “public authority” provided for in article 3(1) of the Regulations. For the avoidance of doubt, this issue has not been raised by RTÉ in the context of the present appeal. Instead, RTÉ has argued that this appeal should be deemed withdrawn on the grounds of mootness since it has released copies of the documents which were the subject matter of the appellant’s request. RTÉ also argues that it would be inappropriate to consider the issue of whether it is a “public authority” in the course of this appeal since it did not make the decision to refuse access on that basis and since that issue was not argued in the course of the previous appeal to my Office nor in the proceedings before the High Court.
9. However, as my Office has already communicated to RTÉ, since RTÉ released the Emails subject to redactions and without prejudice to its position that they did not constitute “environmental information” there remains a live issue to be decided in that regard. In addition, while the “public authority” issue was raised in a separate appeal, if RTÉ is correct in its assertion that it does not satisfy the definition of “public authority” contained in the Regulations, then I have no jurisdiction to determine the “environmental information” issue and any decision made by me in that regard would be ultra vires the jurisdiction conferred on me by article 12(5) of the Regulations. It cannot be the case that RTÉ is a public authority for the purposes of certain requests for information under AIE and not a public authority for other requests for information under AIE.
10. For this reason, my review in this case is concerned with the following:
i. whether RTÉ is a “public authority” within the meaning of article 3(1) of the Regulations;
ii. whether the Emails are “environmental information” within the meaning of article 3(1) of the Regulations.
11. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and RTÉ. The submissions made by both parties in the course of the initial appeal of 2 February 2019 have been considered along with the arguments made in the High Court appeal. On remittal, the parties were invited to make further submissions in light of the decision of the High Court on the initial appeal as well as on any other matters they considered relevant. Once the “public authority” issue was raised, RTÉ was notified that its submissions on that point would be considered in this appeal. It was also provided with an opportunity to make further submissions on the point but it did not do so. The appellant also made submissions on both the “environmental information” and the “public authority” point. All submissions have been considered by me for the purpose of this appeal.
12. I have also examined the contents of the records at issue and have had regard to the following:
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
13. As outlined above, if RTÉ is correct in its assertion that it is not a “public authority”, I have no jurisdiction to consider the issue of whether the Emails are “environmental information”. I will therefore deal with the “public authority” question in the first instance.
14. Article 3(1) of the AIE Regulations defines a “public authority” as follows:
a. government or other public administration, including public advisory bodies, at national, regional or local level,
b. any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment, and
c. any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b).
15. Article 3(2) provides for exclusions from the definition of “public authority” which include cases where a body is acting “in a judicial or legislative capacity”. Article 3(2) is not relevant in the circumstances of this appeal.
16. As outlined above, although RTÉ was provided with an opportunity to make specific submissions on the “public authority” point in the context of this appeal, it declined to do so. Therefore, the submissions, on the matter, made by it in the separate appeal to my Office have been considered. The points made by RTÉ in that submission can be broadly summarised as follows:
i. RTÉ argues that many other EU Member States do not consider public service broadcasters to come within the definition of “public authority”. It submits that public service broadcasters in Sweden, the Czech Republic, Germany and Austria are not subject to the provisions of the AIE Directive.
ii. RTÉ points to the decision of the UK’s First Tier Tribunal in Montford v Information Commissioner and British Broadcasting Corporation (BBC) EA/2009/0114 in which it found that the BBC was not a public administrative authority within the meaning of the Environmental Information Regulations 2004, through which the UK transposed the AIE Directive.
iii. RTÉ notes that the judgments of the Court of Justice in C-204/09 Flachglas Torgau GmbH v Feral Republic of Germany, C-619/19 Land Baden-Wurtternberg v DR, C-470/19 Friends of the Irish Environment v Commissioner for Environmental Information along with the decision in Fish Legal emphasise the importance of uniform application of the Directive. It submits on that basis that the approach of other Member States (and former Member States) as outlined in points (i) and (ii) above is therefore important.
iv. RTÉ submits that if it is considered to be a “public authority” then records held by it relating to broadcasting and journalism could be subject to release under the Regulations subject only to the exemptions contained in the Regulations which are not absolute and which, for example, are extremely limited in respect of information relating to emissions. RTÉ submits that press freedom is established clearly and unequivocally under EU law as set out in the Charter of Fundamental Rights and in the European Convention on Human Rights and that an interpretation of “public authority” which includes RTÉ within the remit of the AIE Directive would not give general and unqualified protection to the independence of its broadcast function and all information held for the purposes of its broadcast output. It questions whether sources would continue to provide RTÉ with “off the record” briefings if this were the case.
v. RTÉ relies on the Opinion of Advocate General Bobek (at paras 55 and 96) in Friends of the Irish Environment to argue that the concepts of “public authority” and “public administration” should not be subject to “interpretative creativity” which would result in the extension of obligations to bodies outside those in which environmental decision making “effectively takes place”. RTÉ argues in that respect that the decision making processes with which it is concerned are editorial and commercial decisions which are made independently and cannot be taken as “the routine exercise of governmental authority”.
vi. RTÉ argues that it does not come within article 3(1)(a) of the definition as it is not a governmental or regional body with any political power.
vii. RTÉ argues that it is not a public authority within the meaning of article 3(1)(b) because it is not part of the State apparatus and is not empowered by the State to act on its behalf nor is it controlled by the State save for a number of designated management functions. It notes the Broadcasting Act 2009 requires that its broadcasting functions must be exercised independently. RTÉ relies on the comments of the Court of Justice in Fish Legal which hold that for bodies to be captured by article 3(1)(b) they must carry out functions “normally performed by governmental authorities” and have special powers relating to their functions which go beyond the normal rules applicable in relations between persons governed by private law. It submits that the functions of a public service broadcaster would not normally be performed by the government in a functioning democracy and that RTÉ does not have special powers.
viii. RTÉ also referred to the comments of the Court of Justice in Friends of the Irish Environment in which it noted that bodies captured by article 3(1)(b) were “bodies or institutions which, although not forming part of the government or other public administrations referred to in [paragraph (a) of the definition], perform executive functions related to the environment or assist in the performance of those functions”. RTÉ submits that it is not part of the government nor is it part of the public administration of the State nor does it perform executive functions in relation to the environment nor does RTÉ assist others in the performance of executive functions relating to the environment. RTÉ also note the comments of the First Tier Tribunal in the BBC case which note that “it is not sufficient that the body carried out functions of the public nature. Those functions must be expressly administrative functions”.
ix. RTÉ also referred to comments made by Owens J at paragraphs 64 and 67 of his judgment in Raheenleagh. These references were made in support of RTÉ’s argument that it was not a public body within the meaning of article 3(1)(b). I note, however, that the comments made by Owens J relate to article 3(1)(c) of the definition. Having regard to the comments of Owens J at paragraph 64, RTÉ submitted that it does not have “public responsibilities relating to the environment” nor do its activities “involve the discharge of public functions relating to the environment” nor does it engage in the “performance of public services relating to the environment”. RTÉ argues that its decisions are independent and it does not have a responsibility in law to broadcast any story, programme or advert.
x. Finally, RTÉ submits that it does not satisfy the two limb test set out in Fish Legal to determine whether an entity is captured by article 3(1)(c). In that case, the Court of Justice noted that a public body within the meaning of article 3(1)(c) must (i) have public responsibilities or functions or provide public services related to the environment, and (ii) must be under the control of a body or person falling within article 3(1)(a) or 3(1)(b) of the definition meaning they must not be able to “determine in a genuinely autonomous manner the way in which they provide such services”. RTÉ submits that the Broadcasting Act requires it to be independent with regard to all editorial and commercial functions and decisions regarding broadcasting. It therefore submits that if it is a body at all under article 3(1)(c), the Regulations would only apply in areas where it is not genuinely autonomous or in areas where RTÉ must seek Ministerial or governmental approval to carry out certain activities.
17. The appellant made the following points when invited to provide submissions as to whether RTÉ should be considered a “public authority” for the purpose of the AIE Regulations:
i. The appellant submits that RTÉ falls within the definition contained at article 3(1)(a) as public service broadcasting by a broadcaster established under public law is quintessentially part of the public administration and the editorial independence of RTÉ does not take away from this. The appellant submits that the Court of Justice in Fish Legal found that this category includes all persons governed by public law which have been set up by the State and which the State alone can decide to dissolve. It notes that RTÉ is owned and partially funded by the State and that as well as providing for its independence, the Broadcasting Act establishes RTÉ as a statutory corporation and makes detailed provisions for its governance, operation and funding. It notes that RTÉ’s powers and functions are exclusively derived from the Act since it is not established under the Companies Act. It also notes that the Act provides for regulatory obligations on the part of RTÉ including statutory transparency and accountability obligations. It refers in particular to sections 92 to 94, section 99, 101, 102 and 110 of the Broadcasting Act. It also notes that the principal objects and powers of RTÉ are set out in section 114 of the Broadcasting Act.
ii. With regard to article 3(1)(b), the appellant submits that the Court of Justice in Fish Legal held that a determination of whether a body performs “public administrative functions under national law” should be carried out in functional terms by examining whether they are entrusted, under the legal regime applicable to them, with the performance of services of public interest and are, for this purpose, vested with special powers beyond those which result from normal rules applicable in relations between persons governed by private law. The appellant submits that RTÉ is entrusted with the performance of public service broadcasting under the 2009 Act which is, by definition, a service of public interest. The appellant further argues that although RTÉ benefits from editorial independence, this does not mean it can broadcast whatever it wants and it may only broadcast insofar as it is empowered to do so under the Broadcasting Act, section 114 of which requires it to establish, maintain and operate a national television and sound broadcasting service which shall have the character of a public service and to provide a comprehensive range of programmes including those “that entertain, inform and educate … and cater for the expectations of the community generally as well as members of the community with special or minority interests”. It also notes that RTÉ in fact broadcasts content relating to the environment and it must be presumed such broadcasting is within its statutory functions since it would otherwise be acting ultra vires its powers in engaging in such broadcasts. The appellant argues that broadcasting relating to the environment is clearly a matter of very strong public interest.
iii. In terms of special powers, the appellant argues that it is clear that RTÉ has been given the power to operate a public service broadcasting service and receives public funding to reflect the fact that such services are not necessarily services that the market could or would provide. The appellant also submits that the “special powers” test in Fish Legal only applies where the entity in question is a private law entity which is not the case here and therefore it is unnecessary to examine whether RTÉ, which is a statutory corporation, has special powers. In the alternative it submits that RTÉ’s powers are by definition special powers since they are derived from a statute which makes specific provision for RTÉ.
iv. In response to RTÉ’s contention that its journalistic function and/or the mere possibility of a request for access to information protected by journalistic privilege justifies excluding RTÉ as a whole from the definition of public authority, the appellant notes firstly that RTÉ has both journalistic and non-journalistic functions. It also submits that even within the category of public service broadcasting, some of this will be journalistic in nature but some of it will not be covered by journalistic privilege or engage press freedom concerns. It submits therefore that RTÉ holds environmental information which is both journalistic in nature (and which the appellant agrees has a degree of protection based on journalistic privilege) and other environmental information which has no such protection.
v. The appellant submits that RTÉ’s position that it must be completely excluded from the scope of the Directive, is actually incompatible with the idea of press freedom. The appellant argues that there is a public interest in access to environmental information in relation to how RTÉ should broadcast on climate change. It notes that RTÉ has been subject to public criticism for how it has done so in the past and that it has responded to that criticism by promising to improve that reporting. It considers this to be a case in point as to how public accountability can and has strengthened RTÉ’s public service broadcasting in relation to the environment.
vi. The appellant also notes that the AIE Directive aims to strike a balance between the public’s right of access to environmental information on the one hand and certain public and private interests on the other hand. It gives the example of the right to the protection of personal data which is protected by Article 8 of the Charter of Fundamental Rights and notes that it is possible in principle to access this category of data under the Regulations. It argues that the precise delimitation between the competing rights of access to information and press freedom should be determined on a case-by-case basis where the facts establish that there would be a threat to press freedom. It argues that there is sufficient protection for press freedom within the framework of the Directive (referring in particular to the exceptions which allow refusal on the grounds that access would be manifestly unreasonable or would adversely affect the confidentiality of proceedings of a public authority) and submits that it was never intended that public service broadcasters would be excluded entirely from the scope of the right of access.
vii. The appellant also submits that there is no conflict between RTÉ’s independence and the AIE Directive and notes that there are many independent bodies in Ireland and internationally that must provide public access to information. It also relies on the comments of Barrett J in RTÉ in which he noted that “transparency and independence are not in any event mutually exclusionary terms; indeed transparency could reasonably be contended to buttress and/or better ensure independence”.
viii. The appellant also argues that RTÉ’s survey of a small number of other European public service broadcasters is of no real significance since it is limited to only 5 Member States (including the UK) and provides details of the reason for the alleged exclusion for only two of them. As RTÉ rightly indicates the concept of public authority must be applied uniformly throughout the European Union. It noted that a survey of just five Member States is of limited significance and the differences outlined by RTÉ could be as a result of factual or legal differences between the different Member States or because the issue has never arisen. It points out that the issue of whether those entities should in fact be considered public authorities within the meaning of the Directive has never been decided by the Court of Justice which is the final arbiter on its interpretation.
ix. It submits that the decisions of the Court of Justice in Flachglas and Friends of the Irish Environment do not support RTÉ’s position as the ratio of these decisions is that the AIE Directive makes special provision for bodies performing legislative and judicial functions so that, in principle, bodies which are exclusively performing them are not public authorities, whereas bodies that may occasionally perform those functions are public authorities except to the extent that Member States provide an exception when they are performing legislative or judicial functions. It notes that there is no such provision for public service broadcasting in the AIE Directive, as recognised by the High Court in RTÉ.
x. It also argues that RTÉ is estopped from arguing that it is not a public authority in this case because it did not raise this issue at first instance in the Commissioner’s first decision nor did it raise it in its defence to the High Court proceedings.
18. I think it appropriate to deal in the first instance with the appellant’s arguments on issue estoppel. I note in this regard that RTÉ has not sought to argue in this case that it is not a public authority and, in fact, its position is that it is not appropriate for me to consider this issue in the context of the present appeal for the same reasons as those advanced by the appellant, namely that it did not form part of the basis on which the request was refused and was not mentioned in the proceedings before the High Court. The argument that RTÉ is not a public authority has been raised by RTÉ in a separate appeal. However, as I have previously mentioned, the issue of whether RTÉ is a public authority is a threshold jurisdictional issue. While it is not normally the practice of my Office to have regard to arguments made by the parties to an appeal which are not made in the context of that appeal, I consider this to be an exceptional circumstance since RTÉ’s argument in the separate appeal has put me on notice of the fact that it considers that it is not subject to the AIE Regulations. Article 12(5) of the Regulations requires me to “review the decision of [a] public authority” following receipt of an appeal. It follows from this that if RTÉ is correct in its assertion that it is not a “public authority” I would be acting beyond the remit of the jurisdiction conferred on me by the AIE Regulations were I to make a decision on this appeal. It would be inappropriate for me to ignore this issue and proceed to consider the other issues raised in this appeal in isolation. I am therefore in the somewhat unusual position of considering an issue which both parties argue should not be considered in this appeal. However, as the Court of Appeal noted in Redmond (see paragraph 51) proceedings before me “are inquisitorial rather than adversarial in character” and “the extent of the inquiry is determined by the Commissioner, not by the parties”. I am aware that this matter has been remitted to me on foot of a High Court order and that the public authority issue was not considered in the proceedings which gave rise to such an order however I note that the terms of the order simply require that the appeal be remitted to me “for further consideration”. I have decided, in the context of such further consideration, that the inquiry in this case should be extended to include analysis of whether it can be said that RTÉ is a public authority within the meaning of the AIE Regulations. I consider it would be inappropriate for me to do otherwise when failure to consider this issue might result in me acting ultra vires my powers under the Regulations. I consider that I have also done so in a manner which respects the entitlements of the parties to fair procedures by providing them with an opportunity to make submissions on the point. I have considered these submissions as part of this appeal.
19. Secondly, I consider it appropriate to address the general arguments made with respect to press freedom before going on to consider the definition of “public authority” in more detail. I accept RTÉ’s position that were it to be subject to the access regime provided for in the Regulations and the Directive, this “would not give general and unqualified protection to the independence of its broadcast functions”. However, no such unqualified protection exists for any fundamental right and, as Article 52 of the Charter of Fundamental Rights of the European Union notes, limitations on the exercise of the rights and freedoms recognised by the Charter may be made if they “are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others”.
20. Access to environmental information is an objective of general interest recognised by the Union. This is clear from the Recitals to the Directive, Recital 1 of which 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”.
21. If RTÉ satisfies the definition of “public authority” contained in the Directive, it does not appear to me that its inclusion would necessarily result in an unwarranted interference with the exercise of press freedom, particularly given that the Directive and the Regulations provide grounds for refusal in defined circumstances where the interest in refusal outweighs any public interest in disclosure. It is also interesting that RTÉ’s submissions question whether sources would continue to provide it with off the record briefings were it to be considered a “public authority” as records relating to broadcasting and journalism could be subject to release. As matters currently stand, RTÉ’s website contains a section on “Access to Information on the Environment” which advises members of the public of their entitlement to make a request for environmental records held by it. It appears to me therefore that the stymying effect on sources suggested by RTÉ in its submissions would most likely have come to pass by now if this concern was valid. Therefore, I believe that any concerns of this nature might be more hypothetical than real. I am not persuaded by the argument put forward by RTÉ that the requirements of press freedom, as protected by the European Charter of Fundamental Rights and the European Convention on Human Rights, warrants its automatic exclusion from the remit of the AIE Regulations. It was open to the EU legislature to provide for such an automatic exclusion but this did not occur and there is no textual basis in the Directive or the Regulations which would support the existence of such an exclusion. I will therefore go on to consider the relevant aspects of the definition of “public authority”.
22. In this regard, I note RTÉ’s submission that EU law must be subject to an autonomous and uniform interpretation throughout the EU. As noted by the Supreme Court in NAMA the decision of the Court of Justice in Fish Legal provides an authoritative interpretation of the Directive with regard to the definition of public authority. I am therefore bound to consider the question of whether RTÉ is a public authority in light of the guidance provided by the Court of Justice in the Fish Legal case. I should point out in this regard that, as noted by the appellant, the BBC decision is a decision of a First Instance Tribunal in the UK which preceded the seminal decision of the Court of Justice in Fish Legal and is therefore of limited persuasive value. To the extent that any conflict exists between the conclusions in the BBC case and the guidance set out in Fish Legal, it is the Fish Legal case which takes precedence.
23. The first question for me to consider is whether RTÉ is part of “government or other public administration” for the purposes of article 3(1)(a). As noted above, the decision in Fish Legal provides an authoritative interpretation of the definition of “public authority” contained at article 2 of the Directive (which is identical in its terms to that contained at article 3(1) of the Regulations) and I consider it useful to look to that decision for guidance in the first instance. At paragraph 51 of its decision in that case, the Court of Justice held that “entities which, organically, are administrative authorities, namely those which form part of the public administration or the executive of the State at whatever level, are public authorities for the purposes of Article 2(2)(a) of Directive 2003/4”. It also noted that “this first category includes all legal persons governed by public law which have been set up by the State and which it alone can decide to dissolve”.
24. RTÉ was established by section 3 of the Broadcasting Authority Act 1960 as a body corporate with perpetual succession and the power to sue and be sued in its corporate name and to acquire, hold and dispose of land. The Broadcasting Authority Act 1960 was repealed, for the most part, by the Broadcasting Act 2009, section 113(2) of which provided for the continuation in being of RTÉ. As the appellant notes, the Broadcasting Act 2009 makes detailed provisions for the governance, operation and funding of RTÉ and sets out its principal objects and powers.
25. It is clear therefore that RTÉ is a legal person set up by the State through the enactment of the Broadcasting Authority Act 1960 and the Broadcasting Act 2009. It is also clear that the State could decide to dissolve RTÉ should it wish to do so by passing legislation to repeal the Broadcasting Act. In that regard, it is notable that the Oireachtas considered it necessary to enact section 113 of the Broadcasting Act 2009 to provide for the continuation in being of RTÉ, which, presumably, would have ceased to exist on repeal of the 1960 Act, were it not for that section.
26. The final question therefore is whether RTÉ is governed by public law. In order to answer this question, it is necessary to consider what is meant by public law. As Hogan, Morgan and Daly note in their work “Administrative Law in Ireland” (5th ed, 2019), the starting point from which to understand “public law” is to compare it with private law. Public law consists of rules governing the relations between a public body and private individuals or companies while private law governs relations between private individuals. However, the straightforward distinction in theory has been complicated by what those authors refer to as “a number of historical/political developments which have stretched public law from its pristine (and possibly unrealistic) simplicity to the uncertainties and anomalies of today” (paras 19-01 and 19-03).
27. Hogan, Morgan and Daly thus provide some guidelines for determining whether an entity might be considered to be governed by public law. The first is whether that entity falls within the remit of legislation which is specified to apply only to public bodies. The authors note that “while far from dispositive of the question, the fact that a body has been classified as a public body for these legislative purposes may serve to indicate whether the rest of the body of public law should also apply” (para 19-03). I am conscious that I must take a guarded approach to this guidance as I am only concerned with the question of whether it can be said that RTÉ is “governed by public law” for the purposes of considering whether it comes within article 3(1)(a) of the definition of “public authority” contained in the Regulations. However, I note in this regard that RTÉ is considered to be a public body for the purposes of the Official Languages Act 2003 and the Freedom of Information Act 2014. I also note in this regard that the Broadcasting Act 2009 was enacted in the aftermath of an investigation by the European Commission on the question of whether licence fee financing of RTÉ constituted incompatible state aid under EU law, indicating that one of the purposes of that Act was to bring RTÉ more firmly within the field of public law so as to avoid any inference or likelihood that the provision of financial assistance to RTÉ might be construed as unlawful State Aid (see C 2008723 final - State aid E 4/2005 ex NN 99/1999 – Ireland ). I note in particular that while the European Commission was satisfied that RTÉ had a public service remit (para 86), it was not satisfied that RTÉ’s public service obligations were sufficiently clearly defined (para 58). One of the purposes of the Broadcasting Act 2009 was to address the European Commission’s concerns in that regard and to provide for increased supervision with respect to RTÉ’s activities, inter alia, through the creation of the Broadcasting Authority of Ireland. In a 2014 decision (see C 2017 5024 final - State Aid SA.39346 2014/FC – Ireland ), the European Commission confirmed that the Broadcasting Act 2009 satisfied its concerns, including with regard to the specification of RTÉ’s public service remit. It therefore appears to me that RTÉ can be said to be “governed by public law” for the purposes of the test set out by the CJEU in Fish Legal with regard to the application of paragraph (a) of the definition of “public authority”. I would also note in this respect that RTÉ appears to have been of the view, until relatively recently, that it was “governed by public law” as evidenced by its processing of AIE requests to date. I am not aware of any reason justifying a change to this approach.
28. The second guideline referred to by Hogan, Morgan and Daly is whether the entity in question could be subject to judicial review proceedings, such proceedings not being applicable where the circumstances relate to private law notwithstanding the fact that substantive judicial review principles (such as legality, rationality and procedural propriety) may be considered to apply in a private law setting. While I accept that there is a long list of factors governing amenability to judicial review, including the subject matter of the dispute in question, the fact remains that “the application for judicial review is available only where the proceedings relate to the exercise of public law powers by a public body” (see Hogan et al, paragraph 19-84). I note in this regard that RTÉ has been the subject of judicial review proceedings including, for example, in Coughlan v Broadcasting Complaints Commission and Raidio Teilfís Éireann [2003] 3 IR 1, O’Toole v Raidio Teilfís Éireann [1993] ILRM 458, Brandon Book Publishers Limited v Raidio Teilfís Éireann [1993] ILRM 106. Indeed a search of the High Court database (available at www.csol.ie/ccms/highCourtSearch.html ) shows that RTÉ has been consistently named as a respondent in judicial review applications over the past 30 years.
29. Hogan, Morgan and Daly, in their discussion of the executive power of administration, also note that “the most fundamental feature is that there is no general grant of administrative power. Instead such power is created and bestowed by an Act of the Oireachtas, amplified by regulations, in discrete subject areas: for example, planning, immigration, taxation, licensing, and welfare. Each law is qualified and detailed. This is the basic tenet on which the ultra vires (or jurisdictional) principle operates”. They note that “the actions of the public body may be cast, in the governing legislation, in the form of an obligation (duty) or a discretionary power. And the discretionary power may be either absolute or made subject to specified conditions” (paras 1-60 and 1-61).
30. Having regard to the above factors, I am satisfied that RTÉ is an entity governed by public law. I am also satisfied that it is a legal person established by the State through its enactment of the Broadcasting Acts and that its dissolution can be achieved through State action alone. I consider it to form part of the “public administration” and that its role in this respect is laid out in section 114(2) of the Broadcasting Act which provides that in pursuit of its objects (which are laid out in section 114(1)) RTÉ shall:
“(a) be responsive to the interests and concerns of the whole community, be mindful of the need for understanding and peace within the whole island of Ireland, ensure that the programmes reflect the varied elements which make up the culture of the people of the whole island of Ireland, and have special regard for the elements which distinguish that culture and in particular for the Irish language,
(b) uphold the democratic values enshrined in the Constitution, especially those relating to rightful liberty of expression, and
(c) have regard to the need for the formation of public awareness and understanding of the values and traditions of countries other than the State, including in particular those of other Member States”.
31. I am thus satisfied that RTÉ is a “public authority” within the meaning of article 3(1)(a).
32. While it is not necessary for me to consider article 3(1)(b) in circumstances where I am satisfied that RTÉ is a public authority for the purposes of article 3(1)(a), in the interests of providing further clarity given RTÉ’s apparent change in position, I should say that if I am wrong in my analysis as to whether RTÉ can be considered to organically form part of the public administration such that it falls within category (a), I am satisfied that it can be said to be an administrative authority “in functional terms” such that it would satisfy the test set out in Fish Legal for a category (b) public authority. That test is set out at paragraph 52 of the CJEU’s decision and reads as follows:
“The second category of public authorities, defined in article 2(2)(b) of Directive 2003/4, concerns administrative authorities in functional terms, namely entities, be they legal persons governed by public law or by private law, which are entrusted, under the legal regime which is applicable to them, with the performance of services in the public interest, inter alia in the environmental field, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law”.
33. Section 114(1) of the 2009 Act sets out the objects of RTÉ as follows:
a. to establish, maintain and operate a national television and sound broadcasting service which shall have the character of a public service, be a free-to-air service and be made available, in so far as it is reasonably practicable, to the whole community on the island of Ireland,
b. to establish and maintain a website and teletext services in connection with the services of RTÉ under paragraphs (a), (c), (d), (e), (f), (g), (h) and (i),
c. to establish and maintain orchestras, choirs and other cultural performing groups in connection with the services of RTÉ under paragraphs (a), (f), (g) and (h),
d. to assist and co-operate with the relevant public bodies in preparation for, and execution of, the dissemination of relevant information to the public in the event of a major emergency,
e. to establish and maintain archives and libraries containing materials relevant to the objects of RTÉ under this subsection,
f. to establish, maintain and operate a television broadcasting service and a sound broadcasting service which shall have the character of a public service, which services shall be made available, in so far as RTÉ considers reasonably practicable, to Irish communities outside the island of Ireland,
g. subject to the consent of the Minister [for Culture, Heritage and the Gaeltacht], the Minister having consulted with the Authority, to establish, maintain and operate, in so far as it is reasonably practicable, community, local, or regional broadcasting services, which shall have the character of a public service, and be available free-to-air,
h. subject to the consent of the Minister, the Minister having consulted with the Authority, to establish and maintain non-broadcast non-linear audio-visual media services, in so far as it is reasonably practicable, which shall have the character of a public broadcasting service (such consent not being required in respect of such services which are ancillary to a broadcasting service provided under paragraphs (a), (d), (f) and (g)),
i. to establish, maintain, and operate one or more national multiplexes,
j. so far as it is reasonably practicable, to exploit such commercial opportunities as may arise in pursuit of the objects outlined in paragraphs (a) to (i).
34. As it evident from the wording set out above, RTÉ has been entrusted with the performance of services in the public interest.
35. The next question to consider is whether RTÉ is vested with special powers for the purpose of performing the objects set out in section 114 of the 2009 Act. Having reviewed the Broadcasting Act 2009, I consider that it provides for a number of special powers applying to RTÉ including those referred to in the ensuing paragraphs.
36. Section 123(1A)(a) of the 2009 Act provides that “the Minister shall … determine the portion of [the amount equal to the total receipts of that year in respect of television licence fees] to be paid to RTÉ and TG4 respectively” and section 123(1A)(b) provides that “when making a determination for the purposes of paragraph (a), the Minister shall have regard to the ability of RTÉ and TG4 to fulfil their public service objects”. While other paragraphs of section 123 provide for a degree of Ministerial discretion, section 123(1A) is a mandatory provision, the use of the word “shall” indicating an entitlement on the part of RTÉ to be provided with a sufficient level of funding to enable fulfilment of its public service obligations. As outlined above, that entitlement is of course subject to RTÉ performing its public service objects, with the Broadcasting Authority of Ireland (BAI) exercising a supervisory function in this regard in order to satisfy State Aid requirements. However, subject to compliance with such requirements, RTÉ is provided with significant public funding in order to carry out the tasks entrusted to it, funding which is not available on the same terms to broadcasters operating in the private sector.
37. In addition, section 71 of the 2009 Act exempts RTÉ from the requirement to enter into a content provision contract with the BAI. A content provision contract is a contract authorising the supply of a compilation of programme material via multiplex or for the purpose of it being transmitted as a broadcasting service. The entry into a content provision contract by the BAI is be subject to the payment of an application fee of €1500 plus VAT and an annual fee of €2000 for a minimum of five years. The application process takes between three and five months and may result in a refusal by the BAI. As such, an exemption from the requirements of section 71 grants RTÉ a special power not enjoyed by other persons wishing to broadcast programming to whom the exception does not apply. I note that there are other entities which are exempted from the requirements under section 71 but I consider this situation to be analogous to that which arose in the Raheenleagh case in which Owens J noted that the test set out at paragraph 52 of Fish Legal did not require that Raheenleagh’s position be contrasted with that of other holders of authorisations to generate electricity and construct generating stations under the Electricity Regulation Act 1999 who were given the same powers. Rather, the salient point was that “entities governed by private law and outside the statutory regime have no right of access to valuable State infrastructure or to supply electricity. They have no right of compulsory acquisition for private or commercial purposes. Holders of authorisations under the 1999 Act are entrusted by public law with rights and responsibilities and they are given “special powers” in that context” (see paragraph 48). Similarly, in this case, entities which fall outside the exception granted by section 71 of the 2009 Act must obtain a content provision contract in the circumstances set out in section 71(2). As of March 2022, there are 10 entities who have entered into a contract with the BAI in accordance with the provisions of section 71 including Virgin Media Television and eir. RTÉ, unlike those entities, can act without such a contract and is therefore given “special powers” in that context.
38. While I do not propose to set out an exhaustive list of what I consider to be the “special powers” conveyed on RTÉ under the 2009 Act, these also include the obligation placed by section 77(4) on “appropriate network providers” to ensure the retransmission of any free-to-air television service provided for the time being by RTÉ, TG4 or a television service programme contractor. This benefit is conferred on RTÉ without it having to comply with the conditions applicable to “television programme service contractors”, which are entities who have entered into contracts with the Broadcasting Authority which entitle them to establish and maintain a television programme service and establish, maintain and operate broadcasting transmitters. Unlike the “television programme service contractors” RTÉ is not required to enter into a contract with the Broadcasting Authority for the purpose of achieving such priority status. Section 77(6) provides for a similar provision with regard to sound broadcasting carried out by RTÉ.
39. Section 74 of the Act requires any person wishing to prepare an “electronic programme guide” to enter into a contract with the BAI for that purpose and requires that such a contract include a condition that the contract “prioritise within the guide or guides the positioning of each broadcasting service provided in the State by RTÉ”. This prioritisation must also be provided to “television programme service contractors” however, as outlined above, those entities must comply with conditions which do not apply to RTÉ. The BAI’s website notes that it “is responsible for the licensing of electronic programme guide contracts and, in consultation with ComReg, may prepare rules as to how the information concerning programme schedule material, if part of a guide, is presented” suggesting that the provisions of section 74 have yet to have been implemented in practice. Nonetheless the provisions of section 74 provide RTÉ with a status which is not available to entities outside of the statutory regime and is only available to other entities within the regime (with the exception of TG4) subject to conditions which do not apply to RTÉ. I am therefore of the view that the above sections confer RTÉ with “special powers”.
40. Section 114(4) sets out in detail “the principal express powers of RTÉ in pursuance of the objects outlined in [section 114(1)]”. These include the power to establish, maintain and operate broadcasting stations and to acquire, install and operate apparatus for wireless telegraphy, the power to make contracts, agreements or arrangements incidental or conducive to its objects. While these powers are available to entities which register for legal personality in accordance with the Companies Act, RTÉ is provided with such powers via a public law mechanism which absolves it from the requirement to register in accordance with the Companies Act. In addition, section 114(7) gives RTÉ all such powers as are necessary or incidental to the attainment of its objects so long as they are consistent with the Act.
41. Sections 130(2), (4), (6), (8) and (11) gives RTÉ the power to receive payments from various entities (as determined by the Minister) in connection with the establishment, maintenance and operation the national television multiplex to provide for the broadcasting of certain services provided by those entities by digital means. Similar provisions are made in section 130(14) with regard to a national sound multiplex.
42. I am therefore satisfied that RTÉ would satisfy the definition contained in article 3(1)(b) of the Regulations if it were the case that it did not satisfy the definition contained in article 3(1)(a).
43. Although it is not necessary for me to consider article 3(1)(c) in circumstances where I am satisfied that RTÉ would come within the definition of “public authority” contained both in paragraph (a) and (b) of article 3(1), for completeness I would also make it clear that I am satisfied that RTÉ would also satisfy the conditions applying to a category (c) public authority.
44. The definition of public authority contained at paragraph (c) of article 3(1) includes “any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b)”. As outlined above, RTÉ has public functions and provides public services in its capacity as the national broadcaster. Those functions and services include broadcasting on climate change and a range of other environmental matters, and therefore relate to the environment. RTÉ itself has recognised that it performs such functions and provides such services with the Managing Director of RTÉ News noting as follows:
“Public service journalism means RTÉ News has a responsibility to lead the conversation about the climate crisis, and the impact it is having. From September, every journalist in RTÉ News will take part in a workshop looking at climate science, and the reporting of it.
And we will create a team, working across RTÉ News & Current Affairs, dedicated to reporting the climate crisis, beginning with extensive coverage of COP26, the United Nations Climate Change conference in Glasgow in November” (see how RTÉ News is covering climate change, 27 July 2021 ).
45. I also note in this regard that RTÉ has a senior correspondent dedicated to environmental issues.
46. The next question to be considered then is whether RTÉ could be said to be “under the control of a body or person falling within paragraph (a) or (b)” of the definition. In its consideration of paragraph (c) of the definition, the Court of Justice in Fish Legal noted that “in defining three categories of public authorities, Article 2(2) of [the AIE Directive] is intended to cover a set of entities, whatever their legal form, that must be regarded as constituting a public authority, be it the State itself, an entity empowered by the State to act on its behalf or an entity controlled by the State”. It also noted that “it is apparent from article 1(a) and (b) of [the Directive] that its objectives are, in particular, to guarantee the right of access to environmental information held by or for public authorities, to set out the basic terms and conditions of, and practical arrangements for, exercise of that right and to achieve the widest possible systematic availability and dissemination to the public of such information”. It went on to find that:
“[T]hose factors lead to the adoption of an interpretation of ‘control’, within the meaning of Article 2(2)(c) of Directive 2003/4, under which this third, residual, category of public authorities covers any entity which does not determine in a genuinely autonomous manner the way in which it performs the functions in the environmental field which are vested in it, since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on the entity’s action in that field.
The manner in which such a public authority may exert decisive influence pursuant to the powers which it has been allotted by the national legislature is irrelevant in this regard. It may take the form of, inter alia, a power to issue directions to the entities concerned, whether or not by exercising rights as a shareholder, the power to suspend, annul after the event or require prior authorisation for decisions taken by those entities, the power to appoint or remove from office the members of their management bodies or the majority of them, or the power wholly or partly to deny the entities financing to an extent that jeopardises their existence.
[...]
If the system concerned involves a particularly precise legal framework which lays down a set of rules determining the way in which such companies must perform the public functions related to environmental management with which they are entrusted, and which, as the case may be, includes administrative supervision intended to ensure that those rules are in fact complied with, where appropriate by means of the issuing of orders or the imposition of fines, it may follow that those entities do not have genuine autonomy vis-à-vis the State, even if the latter is no longer in a position, following privatisation of the sector in question, to determine their day-to-day management” (see paras 68, 69 and 71).
47. As outlined above, while RTÉ does of course benefit from press freedom and editorial independence, it is to a certain extent under the control of the Oireachtas. In the first instance, the Oireachtas has provided for increased supervision of RTÉ by the Broadcasting Authority of Ireland (a creature established under statute, in part, to exercise greater supervisory authority over RTÉ in order to satisfy the concerns of the European Commission with regard to State Aid as discussed above). In addition, RTÉ is a legal person set up by the State through the enactment of the Broadcasting Authority Act 1960 and the Broadcasting Act 2009 and it is clear that the State could decide to dissolve RTÉ should it wish to do so by passing legislation to repeal the Broadcasting Act. It could also amend the Broadcasting Act 2009 in a manner which wholly or partly denied RTÉ financing through TV License revenue to an extent that jeopardises its existence. The extent to which RTÉ relies on public financing for its operations and the influence of the Oireachtas in this regard is evident in comments made by its Director General and other senior figures in RTÉ in their appearance before the Oireachtas Joint Committee on Communications, Climate Action and Environment in December 2019 (see Future Funding of Public Service Broadcasting: Discussion ) which include the following comments of the Director General:
“By virtue of outdated legislation, a further 11% of households, and the figure is growing, do not pay the television licence and yet can consume public service programming on their online devices … This lag in legislation is resulting in a further loss of €20 million in public funding annually. Licence fee receipts are down against forecast for this year, and have been for the past number of months, making a difficult financial situation even more acute for us and for the industry. Ireland’s television licence system is irrevocably broken and is no longer capable of properly sustaining public service broadcasting or Ireland’s broader audiovisual and creative sector.
[...]
The challenges being faced are a serious threat to the future of public service broadcasting at a time when public service media, with a publicly owned national service to reflect Ireland's voice and identity, have never been more important. It has material consequences for the audiovisual, sports and cultural sectors of the country. RTÉ has a plan to address this, but unless there is commensurate policy and legislative action, then public service media will potentially be weakened irrevocably”.
48. RTÉ’s Chief Financial Officer also commented as follows:
“Our overall financial strategy is a three-strand approach. It is based on three pillars … The third part of the strategy, which is of key importance, is securing additional public funding … The increase we are calling for is in line with the recommendations of our regulator, the BAI. This was recommended in 2017 … The BAI recommended €30 million in immediate additional public funding for RTÉ per annum”.
49. The provisions of the Broadcasting Act also provide a significant degree of control to the Government, the Minister for Culture, Heritage and the Gaeltacht and the Oireachtas with regard to the appointment of RTÉ’s Board of Directors. Pursuant to section 83 of the Act, six of RTÉ’s twelve Board members are appointed by Government on the nomination of the Minister. A further four are appointed by the Government on the nomination of the Minister following consultation by the Minister with the Joint Oireachtas Committee responsible for examining matters relating to broadcasting. The eleventh member of the Board is the Director General. Section 89 provides that the Director General cannot be appointed without the consent of the Government. The final member of the Board is a staff member of RTÉ nominated by the Government having been elected by their fellow staff members who fulfil the eligibility criteria set out in section 83 of the Act. Section 85 also provides that it is for the Government to appoint the Chairperson of the Board who cannot be the Director General or the member elected by RTÉ staff.
50. On that basis, I consider RTÉ would come within paragraph (c) of the definition, even if it did not satisfy the criteria applying to either paragraph (a) or paragraph (b).
51. As I am satisfied that RTÉ is a “public authority” within the meaning of the AIE Regulations, the next question I must consider is whether the Emails constitute “environmental information” within the meaning of those Regulations.
52. Before addressing this question, I think it is important to address the second argument raised by the appellant with regard to issue estoppel. As well as arguing that RTÉ is estopped from asserting that it is not a public authority (which I have addressed at paragraph 18), the appellant argues that RTÉ is estopped from arguing that broadcasting on climate change is not a measure affecting or likely to affect the environment. RTÉ has noted in its submissions however that it accepts that the High Court in RTÉ found that broadcasting and reporting on the issue of climate change by the national broadcaster was both a factor within the meaning of paragraph (b) of the definition of “environmental information” and a measure within the meaning of paragraph (c) of that definition. It does not accept however that the Emails constitute “information on” that factor or measure.
53. RTÉ’s submissions in this regard can be summarised as follows:
i. It argues that the term “information on”, contained in the definition of “environmental information” must be construed by reference to the purpose of the Aarhus Convention and the AIE Directive and relies on the decision of the Court of Appeal of England and Wales in Henney and the decision of the Irish Court of Appeal in Redmond. It refers in particular to paragraph 99 of the judgment of Collins J in Redmond in which he notes:
“The decision of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner indicates that there may be some scope for debate on [the “information on”] issue, with Beatson LJ suggesting that regulation 2(1)(c) should be “read down” by reference to the purpose of the Aarhus Convention and the AIE Directive to provide for access to environmental information so as to enable members of the public to be better informed and better able to contribute to environmental decision-making. Information not relevant or useful to that purpose, he suggests, may not be required to be provided”.
ii. RTÉ submits that the Emails are not useful or relevant to the purposes of the AIE Directive and/or the Aarhus Convention and therefore are not information ‘on’ an environmental factor within the meaning of article 3(1)(b) or an environmental measure within the meaning of article 3(1)(c).
iii. It argues that even given a wide interpretation, the AIE Directive is not limited in its reach and refers to the decision of the Court of Justice in Glawischnig in support of its position that there must be something more than a minimal connection between the information and the measure or activity at issue.
iv. It notes that while the judgment of the High Court in the RTÉ case suggests that it was “difficult to conceive of how the Community legislature could have taken a more expansive approach to the scope of the concept of ‘environmental information’” and while this sentiment is echoed by Advocate General Kokott in C-524/09 Ville de Lyon v Caisse des dépôts et consignations the Advocate General also noted that the expansive approach still had its limits such that “neither the old nor the new Environmental Information Directive is intended…to give a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with an environmental factor…”. It submits therefore that there must be more than a minimal connection between the factor (i.e. climate change), RTÉ “broadcasting a measure on climate change after an editor decided to do that same item and based on the content of the story reported on by a journalist” and the information held by RTÉ.
v. RTÉ relies on the decision of the English Court of Appeal in Henney and the High Court in ESB to argue that the information at issue must be critical, fundamental or integral to broadcasting and journalism to allow the information become ‘environmental’ under article 3(1)(b) / (c) of the Regulations and disclosure of the information must advance and/or be consistent with, the achievement of the purpose of the AIE Directive. It argues that the Emails are not critical or fundamental to RTÉ’s reporting on climate change as RTÉ does not rely on public commentary to make editorial decisions and editorial decisions are not made on the basis of emails such as those at issue in this appeal. It submits that since RTÉ can broadcast on the issue of climate change in the absence of receipt of emails from members of the public those Emails are not crucial or fundamental to the broadcasting of climate change matters.
vi. RTÉ also points to the decision of the Court of Justice in Mecklenburg in which the Court of Justice found that a statement of views given by a countryside protection authority in development proceedings would be environmental information “if that statement is capable of influencing the outcome of those proceedings as regards interests pertaining to the protection of the environment”. It submits that since RTÉ must be independent in its broadcasting and reporting functions, the Emails could not influence its editorial decision making processes. RTÉ’s position therefore is that while it is always cognisant of what its viewers and listeners are saying, the Emails did not influence editorial decisions and therefore cannot be fundamental to broadcasting and reporting on climate change.
vii. RTÉ also submits that the Court in Henney considered the starting point of the analysis to be the recitals to the Aarhus Convention and the Directive which “refer to the requirement that citizens have access to information to enable them to participate in environmental decision making more effectively and the contribution of access to a greater awareness of environmental matters and eventually to a better environment”. It therefore argues that the mere holding of environmental information is not sufficient for it to be captured by the Regulations and that there must be some decision making process relating to the holding of the records. It also submits that the information at issue cannot assist the effective participation by the public in environmental decision making as RTÉ is bound by law to be independent such that the public cannot legally be involved in those decision making processes. It argues that it would be impractical for RTÉ to incorporate or be influenced by public participation (or outside participation of any kind) in its editorial decision making processes every time a story on climate change was to be broadcast and that this would destroy the principle of press freedom. Its position therefore is that the Emails did not and cannot influence RTÉ’s decision making process such that they cannot advance the principles of the Aarhus Convention or the AIE Directive and therefore are not environmental information.
viii. RTÉ also seeks to argue that no evidence or suggestion has been put forward to say that broadcasting by it has a “real and substantial” possibility of impacting the environment such that it would satisfy the test set out by the Court of Appeal in Redmond when it noted that “a measure or activity is ‘likely to affect’ the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly”. However, the High Court has dealt with this question in its judgment in RTÉ and RTÉ has accepted in its submissions that the High Court found that broadcasting and reporting on the issue of climate change by the national broadcaster was both a factor within the meaning of paragraph (b) of the definition of “environmental information” and a measure within the meaning of paragraph (c) of that definition. I am therefore not considering the issue of whether RTÉ’s broadcasting on climate change is a measure or factor affecting or likely to affect the environment, I am considering whether the Emails are information “on” that measure or factor.
54. The relevant submissions made by Right to Know on this point are summarised below:
i. Having received redacted copies of the Emails on a without prejudice basis, Right to Know submits that this is exactly the type of information that is on “climate change” and on the “broadcasting of climate change”. It submits that the information includes the opinions and perceptions of members of the public of climate change as well as their opinions of RTÉ’s reporting of climate change issues.
ii. In its submissions in the earlier appeal Right to Know argued that access to the Emails is entirely in line with the objectives of the Aarhus Convention and the AIE Directive since RTÉ, as a public authority, has a role to play in disseminating environmental information to the fullest extent possible and this includes state-owned media organisations and their reporting on environmental issues including climate change.
iii. In its submissions as part of the High Court appeal, Right to Know referenced the decision in Henney noting that the Court of Appeal in that case stated that information is “on” a measure if it is “about, relates to or concerns” the measure in question (para 37) and that it may be necessary to consider the wider context and consideration is not strictly limited to the precise issue with which the information is concerned (para 43).
iv. It notes that the Aarhus Convention specifically recognises the importance of the media in advancing its purposes and refers to the following recitals in this regard:
“Desiring to promote environmental education to further the understanding of the environment and sustainable development and to encourage widespread public awareness of, and participation in, decisions affecting the environment and sustainable development.
Noting in this context, the importance of making use of the media and of electronic or other, future forms of communication”.
v. It also refers to Recital 1 of the AIE Directive which provides 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”.
vi. Finally, it relies on the following paragraph (para 57) of the decision of the Court of Appeal in Redmond to argue that if climate change broadcasting is a measure, then all information on the measure must fall within the ambit of article 3(1)(c) (emphasis added by appellant):
“The essential question, therefore, is not whether the sale of Coillte Lands was or was capable of being a “measure” but rather whether it was a “measure affecting or likely to affect” the environment. If it was, then “any information…on” the sale is prima facie required to be provided under the Regulations. That is how this part of the definition of “environmental information” operates. In my opinion, it is not correct to look at the information sought to see whether, in itself, it is information that can be described as “affecting or likely to affect” the elements and factors set out in article 3(1), paragraphs (a) and/or (b). It is the “measure” not the information “on” that measure, that is subject to the threshold test”.
55. Article 3(1) of the AIE Regulations defines “environmental information” as any information in written, visual, aural, electronic or any other material form on-
a. the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
b. factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
c. measures (including administrative measures) such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
d. reports on the implementation of environmental legislation,
e. cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
f. the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c).
56. The AIE Regulations transpose the AIE Directive at national level and the definition of “environmental information” in the Regulations, mirrors that contained in the Directive. The AIE Directive was adopted to give effect to the first pillar of the Aarhus Convention in order to increase public access to environmental information and enable an informed public to participate more effectively in environmental decision-making. It replaced Council Directive 90/313/EEC, the previous AIE Directive.
57. According to national and EU case law on this matter, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the national and European courts.
58. The right of access to environmental information that exists includes access to information “on” one or more of the six categories at (a) to (f) of the definition. As outlined above, it has been accepted by both parties in this case that climate change is a factor affecting or likely to affect the elements of the environment (i.e. a factor within the meaning of paragraph (b)) and that broadcasting on climate change by the national broadcaster is a measure affecting or likely to affect the environment (within the meaning of paragraph (c)). The question I must address therefore is whether the Emails constitute information “on” climate change and/or broadcasting on climate change by RTÉ.
59. In his decision in RTÉ, Barrett J expressly endorsed the approach set out by the Court of Appeal of England and Wales in Henney to determine the “information on” element of the definition (RTÉ at paragraph 52). The first step is to identify the relevant measure or factor. It is important to note that information may be “on” one measure or activity, more than one measure or activity or both a measure or an activity which forms part of a broader measure (Henney at paragraph 42). In identifying the relevant measure or activity that the information is “on” one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned, and it may be relevant to consider the purpose of the information (ESB at paragraph 43). As outlined above, the factor at issue in this case is climate change and the measure at issue is broadcasting by RTÉ (as the national broadcaster) on climate change.
60. In determining whether the relevant information is information “on” the measure or factor, the High Court in RTÉ (see paragraph 52) again endorses the approach set out by the Court of Appeal of in England and Wales in Henney which is as follows (see paragraphs 47 and 48):
“…the way the line will be drawn [i.e. in determining whether one is dealing with ‘information on…’] is by reference to the general principle that the Regulations, the Directive, and the Aarhus Convention are to be construed purposively. Determining on which side of the line the information falls will be fact and context-specific. But it is possible to provide some general guidance as to the circumstances in which information relating to a project will not be information on the project for the purposes of section 2(1)(c) because it is not consistent with or does not advance the purpose of those instruments.
My starting point is the recitals to the Aarhus Convention and the Directive, in particular those set out at para 15 above. They refer to the requirement that citizens have access to information to enable them to participate in environmental decision-making more effectively, and the contribution of access to a greater awareness of environmental matters, and eventually, to a better environment. They give an indication of how the very broad language of the text of the provisions may have to be assessed to provide a framework for determining the question of whether in a particular case information can properly be described as on a given measure”.
61. Henney also suggests that, in determining whether information is “on” the relevant measure or activity, it may be relevant to consider the purpose of the information such as why it was produced, how important it is to that purpose, how it is to be used, and whether access to it advances the purposes of the Aarhus Convention and AIE Directive (paragraph 43; see also ESB at paragraph 42). Information that does not advance the purposes of the Aarhus Convention and AIE Directive may not be “on” the relevant measure or activity (Redmond at paragraph 99). As the Court noted in Henney, the recitals of both the Aarhus Convention and the AIE Directive refer to the requirement that citizens have access to information to provide for a greater awareness of environmental matters, to enable more effective participation in environmental decision-making and to facilitate the free-exchange of views with the aim that all of this should lead, ultimately, to a better environment. They give an indication of how the very broad language of the text of the provisions in the Convention and Directive may have to be assessed and provide a framework for determining the question of whether in a particular case information can properly be described as on a given measure (see Henney at paragraph 48 and RTÉ at paragraph 52). Finally, as the High Court noted in ESB information that is integral to the relevant measure or activity is information “on” it (see paragraphs 38, 40 and 41) while information that is too remote from the relevant measure or activity does not qualify as environmental information (ESB at paragraph 43).
62. RTÉ submits that both Henney and ESB are authorities for the proposition that the information at issue must be critical, fundamental or integral to broadcasting and journalism to allow the information become “environmental” under article 3(1)(b) or 3(1)(c) of the Regulations and disclosure of the information must advance, and/or be consistent with, the achievement of the purpose of the AIE Directive. It argues that the Emails are not critical or fundamental to RTÉ’s reporting on climate change as RTÉ does not rely on public commentary to make editorial decisions and editorial decisions are not made on the basis of emails such as those at issue in this appeal. It submits that, since RTÉ can broadcast on the issue of climate change in the absence of receipt of emails from members of the public, those Emails are not crucial or fundamental to the broadcasting of climate change matters.
63. However, my reading of the guidance provided by the Courts in Henney, ESB and RTÉ is not that the information must be critical, fundamental or integral to the measure or factor at issue, but rather that there is a sliding scale, with information integral to a measure or factor at one end (in the sense that it is quite definitively information “on” a measure or factor) and information considered too remote from the relevant measure or factor at the other (in the sense that it is not). The example referred to in Henney noted that a report on PR and advertising strategy might be considered information “on” the Smart Meter Programme “because having access to information about how a development is to be promoted will enable more informed participation by the public in the programme”. However, information relating to a public authority’s procurement of canteen services in the department responsible for delivering a road project would likely be considered too remote (see paragraph 46).
64. The Emails, which consist of feedback from members of the public on RTÉ’s climate change broadcasting, may be somewhat less than critical to the immediate broadcasting process in that they do not, and cannot in RTÉ’s view, directly influence editorial decisions in relation to such broadcasting. However, they do have some impact. RTÉ itself accepts that it is always cognisant of what its viewers and listeners are saying. As outlined above, section 114(2) of the Broadcasting Act 2009 requires RTÉ to “be responsive to the interests and concerns of the whole community” in pursuit of its objectives as a public service broadcaster. Section 114(3) requires RTÉ to ensure that the programme schedules of its broadcasting services “provide a comprehensive range of programmes in the Irish and English languages that reflect the cultural diversity of the whole island of Ireland and include programmes that entertain, inform and educate, provide coverage of sporting, religious and cultural activities and cater for the expectations of the community generally as well as members of the community with special or minority interests and which, in every case, respect human dignity” (emphasis added). The Emails cannot therefore be considered so remote from RTÉ’s broadcasting on climate change as to render them incapable of being considered information “on” that measure.
65. As RTÉ also observes, Henney (as endorsed by the High Court in RTÉ) provides that when considering whether information is “on” a measure or factor, regard should be had to the purposes of the Aarhus Convention and the AIE Directive. In that regard, I do not agree with RTÉ’s position that simply because the Emails (or feedback from the public generally) cannot directly influence editorial decisions, they cannot advance the principles of the Aarhus Convention or the AIE Directive. In my view, Henney makes it clear that the definition of environmental information should be applied purposively having regard to matters such as “the purpose for which the information was produced, how important it was to that purpose, how it is to be used and whether access to it would make the public better informed above, or to participate in, decision-making in a better way” (see paragraph 43).
66. The Emails were produced by members of the public in order to provide feedback to RTÉ with regard to its broadcasting on climate change. The extent to which the national broadcaster, which has been given statutory responsibility for public broadcasting in a manner which is responsive to the needs of the community, is considering public feedback on matters related to climate change is of course relevant and important for the purposes of contributing to a greater awareness of environmental matters, a free exchange of views and more effective participation by the public in environmental decision-making as referred to in Recital 1 of the Directive. While feedback from members of the public may be incapable of having a direct impact on editorial decisions relating to the precise content of a broadcast, it must be capable of influencing other matters such as the level of broadcasting which takes place. Indeed, to ignore such feedback would appear to be contrary to RTÉ’s obligations under section 114(2) and 114(3) of the Broadcasting Act 2009 which implies that it must be considered in some way.
67. I am therefore satisfied that the Emails are information “on” broadcasting on climate change by RTÉ and on that basis, are “environmental information” within the meaning of article 3(1) of the Regulations.
68. Having carried out a review under article 12(5) of the AIE Regulations, I annul RTÉ’s decision that the Emails do not constitute “environmental information” within the meaning of article 3(1) of the AIE Regulations. The matter is now remitted to RTÉ who should process the appellant’s request in accordance with the AIE Regulations.
69. 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