Cinneadh
Mr Ken Foxe and RTÉ
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-113639-G4G9Z9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-113639-G4G9Z9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether (i) RTÉ is a public authority within the meaning of the AIE Regulations; (ii) the information requested is “environmental information” within the meaning of the Regulations; and (iii) article 9(2)(a) of the Regulations provides grounds for refusal of the request
1. On 19 July 2021, the appellant wrote to RTÉ requesting the following:
i. copies of any guidance, training or other such advice issued to RTÉ journalists on how to communicate/cover climate change to audiences…to cover the period 1 January 2020 to the date of receipt of the request;
ii. a record of how many representations RTÉ has received regarding its coverage of climate change in (a) the calendar year 2020; and (b) the calendar year so far 2021;
iii. a copy of all representations/correspondence received by RTÉ relating to their coverage of climate change issues in 2021. If there is a particularly large volume of such correspondence this year, I am happy to take a representative sample of say 25 pieces.
2. RTÉ issued its original decision on the appellant’s request on 17 August 2021. It informed the appellant that it held no records within the scope of parts (i) and (ii) of his request. It went on to note that “in relation to [part (iii)] RTÉ has decided to release the enclosed records, with all personal information contained therein duly redacted”. The decision advised the appellant “that this is a pragmatic decision which RTÉ has taken and it is not intended to create any precedent”. It explained that “the decision to release this information should not be taken as an acceptance that RTÉ is under a legal obligation to do so” and that “RTÉ reserves its position in respect of all legal issues concerning the application of the AIE Regulations, including, but not limited to, the scope and application of the grounds for refusal of access under the Regulations”.
3. The appellant sought an internal review on the same date. He accepted RTÉ’s position with regard to part (i) of his request but took issue with the decision as it related to parts (ii) and (iii). With regard to part (ii), he submitted that “while the [Freedom of Information] Act may specify that a requester must seek access to records, the AIE Regulations do not and I believe that RTÉ can provide the requested information (certainly the overall figure for 2021) with a minimum of effort”. In relation to part (iii), he noted that “redactions have been made to the records with no detailed explanation or justification of why this has happened”. He took issue with the “pragmatic approach” RTÉ had taken to the request and argued that “a decision must be made in accordance with the AIE Regulations”. He noted that while it had been suggested by RTÉ that redactions had been made on the grounds that the information contained personal information, this had not been made clear “because of RTÉ’s pragmatic approach to the request”. He submitted that “this pragmatism…significantly undermines the ability of a requester to access information and clear reasons for why it can or cannot be released”. He also submitted that this approach compromised “a requester’s right to an internal review, appeal to the OCEI, and indeed to the courts…particularly where a requester might be unfamiliar with the recent judgment of the High Court [in Right to Know v Commissioner for Environmental Information & Raidio Teilifís Éireann [2021 IEHC 353 ] ] and might believe there is some legal basis underpinning the approach”.
4. RTÉ issued its internal review decision on 14 September 2021. The internal reviewer affirmed the original decision on part (ii) of the request. With regard to part (iii) of the request, the internal reviewer noted that she had “reviewed the basis of the decision informing…release” and that “the redactions were made with regard to personal information”. She noted that she was “of the view that it is imperative to ensure that personal information of individuals is protected and that those redactions were justified in the circumstances”. She went on to note that she was also “of the view that the records that have been released do not meet the threshold of being ‘environmental information’”. She referred specifically to categories (b) and (c) of the definition of “environmental information” contained in article 3(1) of the AIE Regulations before noting her view that “the records sought do not comprise “information” that is useful or relevant to the provisions or purpose of the AIE Directive and/or the Aarhus Convention”.
5. She concluded by suggesting that the reference to the term “pragmatic” in the original decision arose in circumstances where “the decision taken…to make the sample records [relating to part (iii) of the request] available to you was taken without prejudice to RTÉ’s position that it is of the view that those records do not comprise ‘environmental information’”. Nonetheless, she outlined that the internal review had been conducted “for the purposes of section 11(2) of the Regulations” and that the appellant was entitled to “seek a further independent review by contacting the Commissioner for Environmental Information under section 12 of the Regulations”.
6. The appellant appealed to this Office on 29 September 2021.
##Preliminary Matters
7. Before I address the question of scope, I consider it important to express my views on some preliminary matters. I accept that RTÉ’s position is that the information sought falls outside the scope of the AIE Regulations and that it did provide the appellant with certain information requested despite that position. The release of this information is welcome. However, I do not consider RTÉ’s approach to this case to be in accordance with the spirit of the duty to give reasons which arises not just by virtue of the AIE Regulations and Directive but is recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both those decisions, and indeed the duty to provide reasons contained in the Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal so that they can take a view as to whether they consider refusal justified or whether they wish to exercise their entitlement to have the refusal reviewed. In other words, while RTÉ may argue that it is not obliged to provide the information requested under the AIE Regulations and notwithstanding that this Office would welcome steps take to provide information in response to AIE requests voluntarily where the recipient of the request is of the view that there is no obligation to provide such information, a requester should be clearly advised, in all circumstances, of the reasons for the conclusion that such an obligation does not exist. That did not occur in this case.
8. In the first instance, RTÉ sought to take what it characterised as a “pragmatic” approach to the request. It provided some of the information requested by the appellant while reserving its position as to whether it was subject to an obligation to do so by virtue of the AIE Regulations. RTÉ provided no reasoning for its suggestion that the AIE Regulations might not apply to this request. A potential effect of this equivocation, as the appellant points out, is to create confusion among requesters as to their entitlements.
9. In its internal review decision, RTÉ did outline the potential for appeal to this Office and elaborated that its “pragmatic” approach was taken on the basis that it did not consider the information requested at part (iii) of the appellant’s request to constitute environmental information. It did not make a similar argument in relation to part (ii) of the request, having previously indicated to the appellant that it did not hold information relating to part (ii).
10. In the course of submissions to this Office, RTÉ has introduced a number of additional arguments. It now argues that neither the information sought at part (ii) nor part (iii) of the request is “environmental information”. It also argues that it is not a “public authority” within the meaning of the AIE Regulations. It argues that the issues to be determined in the appeal are moot as it does not hold information in relation to part (ii) of the request and has released records falling within the scope of part (iii). RTÉ admits however that it has adopted an interpretation of “environmental information” which would mean that it was only obliged to provide “a record of how many representations it has received regarding its coverage of climate change [in 2020 and 2021]” (as requested in part (ii)) if it already had that precise information in an individual record and that it should not be obliged to search the information it does hold to calculate the number of representations it has received in order to provide a response to the request. Although that would appear to contradict the argument that the question was moot, RTÉ did not respond to a request from this Office to clarify its position on this point. Instead, it sought to rely on an additional argument that it would be manifestly unreasonable to expect it to provide information as to the number of representations it had received as these could number in the thousands and that article 9(2)(a) of the Regulations should be considered to apply.
11. It is regrettable that RTÉ has approached its decision-making in this case in a haphazard manner which has involved significant shifts in its position, has created unnecessary confusion and results in a rather inefficient use both of RTÉ’s resources and those of this Office. This approach has also contributed to the significant delays in the resolution of this appeal, which is also regrettable.
12. RTÉ’s approach of seeking to adopt non-committal positions “without prejudice” to any desire to change its position in the future undermines the fundamental purpose of the duty to give reasons which is outlined above. It also forms the basis of an argument which, if accepted, would circumvent the access to justice provisions in article 6 of the AIE Directive. RTÉ argues that since it does not hold any records falling within parts (i) and (ii) of the request and has provided the appellant with a sample of 25 communications received from members of the public in response to part (iii) of the request (“without prejudice” to its position that it is not obliged to do so under the AIE Regulations), the appeal is in fact moot and further argues that I am deprived of jurisdiction to consider it. It relies on article 15(5) of the Regulations and the decision of the High Court in Right to Know v Commissioner for Environmental Information & Minister for Transport, Tourism & Sport [2020 IEHC 392 ] .
13. For the avoidance of doubt, I do not consider this appeal to be moot in circumstances where RTÉ has refused access to certain information requested by the appellant and where the appeal raises issues as to the obligations applying to RTÉ when processing the appellant’s request. In addition, I note that, in the Minister for Transport case, the appellants had been provided with “possession of the entirety of the documents covered by its request for access” (see paragraph 11). In this case, there is a dispute as to whether RTÉ is obliged to process the request under the AIE Regulations. There is also a dispute as to whether RTÉ must provide information within the scope of part (ii) of the appellant’s request and the extent of the information it must provide in response to part (iii). In those circumstances, it appears to me that there remain live issues in this case to be decided.
14. It is also worth noting that the information requested at part (iii) of the appellant’s request is very similar to information sought in a previous request which was the subject of an appeal to this Office. That request sought copies of “any records held relating to how RTÉ should report on climate change issues” and “any records relating to the creation of policies or guidelines on climate change reporting”. RTÉ identified information relating to how it should report on climate change issues “in the form of correspondence and feedback from members of the public” but did not consider that information to be “environmental information”. The decision reached by this Office in CEI/19/0007 was the subject of an appeal to the High Court which issued a decision on the matter in Right to Know v Commissioner for Environmental Information & Raidio Teilifís Éireann [2021 IEHC 353 ](RTÉ). 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. It set aside the decision in CEI/19/0007 and remitted the matter to this Office for further consideration.
15. 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. As in this case, it redacted what it characterised as “personal information” from that information and stated that it was releasing the information without prejudice to its position that it was not “environmental information” within the meaning of the AIE Regulations. It also sought to argue that there was no need for this Office to proceed with further consideration of the matter as the issue was moot since the information had been released.
16. I issued a decision on the remitted case in July 2022 in OCE-108819-S8Z3Y7 . During the course of the investigation in OCE-108819-S8Z3Y7 , RTÉ provided submissions to this Office in separate cases (including the present case) in which it argued that it did not fit the definition of “public authority” contained in the AIE Regulations. As the AIE Regulations only apply to “public authorities”, the Investigator wrote to RTÉ to notify it that the issue of whether it was a “public authority” would be considered in OCE-108819-S8Z3Y7 since, if it was the case that RTÉ was not, in fact, a “public authority”, this Office would have no jurisdiction in the matter.
17. My decision in OCE-108819-S8Z3Y7 found that RTÉ was a public authority within the meaning of the Regulations. I also found that the information in question was information “on” broadcasting and reporting on the issue of climate change by the national broadcaster and was therefore environmental information within the meaning of the AIE Regulations. I remitted the matter to RTÉ and directed it to process the request in accordance with the provisions of the AIE Regulations.
18. While my previous decisions are not binding and I consider each case afresh, I note the comments of Simons J in Chubb v Financial Services and Pensions Ombudsman [2023 IEHC 74 ]that the requirement to act reasonably implies a general obligation to act consistently by treating like cases alike unless there is good reason for not doing so (paragraph 39). The issue of whether RTÉ is a “public authority” was decided by me in July 2022 based on facts about RTÉ’s position which have not changed since that decision. Indeed many of the arguments made by RTÉ in this case are identical to arguments which I considered in OCE-108819-S8Z3Y7 . However, I must also acknowledge that there has been a Superior Court decision on the “public authority” question in the interval between my last decision and this one and that RTÉ has made additional arguments in light of that decision such that it is appropriate for me to consider once again, whether RTÉ satisfies the definition of “public authority”.
Scope of Appeal
19. As noted above, the issues to be addressed as part of this appeal have expanded significantly as a result of a number of changes of position on the part of RTÉ. My review in this case is therefore concerned with:
i. whether RTÉ is a “public authority” within the meaning of article 3(1) of the AIE Regulations;
ii. whether the information requested is “environmental information” within the meaning of article 3(1) of the AIE Regulations; and
iii. whether RTÉ is entitled to rely on article 9(2)(a) of the AIE Regulations to refuse all or part of the request.
##Analysis and Findings
20. 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. I have examined the contents of the records provided to this Office by RTÉ. In addition, I have had regard to:
* Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
* the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
* the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
* the judgments in National Asset Management Agency v Commissioner for Environmental Information (NAMA) [2015 IESC 51 ] , Right to Know v Commissioner for Environmental Information & Office of the Secretary General to the President [2022 IESC 19 ](the President’s case) and Right to Know CLG v Commissioner for Environmental Information and Raheenleagh Power DAC (Raheenleagh) [2021 IEHC 46 ]and [2022 IECA 210 ] ;
* the decisions of the Court of Justice of the European Union (CJEU) in C-279/12 Fish Legal and Emily Shirley v Information Commissioner & Ors (Fish Legal), C-204/09 Flachglas Torgau GmbH v Federal Republic of Germany (Flachglas) and C-470/19 Friends of the Irish Environment v Commissioner for Environmental Information (Friends of the Irish Environment);
* the judgments in Minch v Commissioner for Environmental Information [2017 IECA 223 ](Minch), Redmond & Anor v Commissioner for Environmental Information & Anor [2020 IECA 83 ](Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020 IEHC 190 ](ESB) and Right to Know v Commissioner for Environmental Information & RTÉ [2021 IEHC 353 ](RTÉ);
* the judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017 EWCA Civ 844 ](Henney) which is referenced in the decisions in Redmond, ESB and RTÉ;
* the decisions of the CJEU in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig), T-2/03 Verein für Konsumenteninformation v Commission (Verein für Konsumenteninformation) and C-619/19 Land Baden-Württemberg v DR (Land Baden-Württemberg);
* the opinion of the Advocate General in C-217/97 Commission v Germany.
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
21. As noted above, there are a number of issues to be considered as part of this appeal. The first two, i.e. whether RTÉ is a “public authority” and whether the information is “environmental information”, are threshold issues and therefore I will consider those issues first.
Is RTÉ a “public authority” within the meaning of the AIE Regulations?
22. 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).
23. As noted above, RTÉ first raised the issue of whether it came within the definition of “public authority” in submissions to this Office. Its initial arguments in this regard can be summarised as follows:
i. It submits that if I accept that RTÉ is a public authority within the meaning of categories (a) or (b) of article 3(1) of the AIE Regulations, that would mean that records held by RTÉ relating to broadcasting and journalism could in principle be subject to release under the Regulations subject to the application of exemptions which are not absolute. It argues that it cannot be correct that journalism and programme-making records can, in principle, be subject to the AIE Directive because press freedom is established, clearly and unequivocally, as a founding principle of the EU. It relies on articles 11.2 and 52 of the Charter of Fundamental Rights of the European Union, article 10 of the European Convention on Human Rights, article 19 of the Universal Declaration of Human Rights and article 19(2) of the International Covenant on Civil and Political Rights in this regard. It also relies on the constitutional protection of freedom to report which the High Court considered to be inherent in the right to freedom of expression in The Irish Times v Ireland [1999] IR 359 and on the decision in Mahon v Post Publications [2005] IEHC 397 which recognised “the cardinal importance of press freedom” and found that “any restriction on it must be proportionate and no more than is necessary to promote the legitimate object of the restriction”. RTÉ refers also to the decision of the First Tier Tribunal in the UK in Montford v the Information Commissioner EA/2009/0114 in which the Tribunal found that the BBC was not a “public administrative authority” and therefore was not amenable to requests under the Directive. It refers in particular to the comment of the Tribunal that “the fact that Parliament clearly intended that the BBC’s right to freedom of expression meant that a general and unqualified protection for information held for the purposes of the BBC’s journalistic, artistic and literary output was warranted in order to avoid any interference with its broadcast functions”. RTÉ argues that an interpretation of the Directive that includes RTÉ as a public authority within the meaning of category (a) or (b) would mean RTÉ is subject to AIE requests in a manner that does not give general and unqualified protection for the independence of its broadcast function and all information held for the purposes of its broadcast output. It submits that, in theory, any ‘off the record’ briefing to an RTÉ journalist on a whole range of issues, including farming and transport, could be subject to the AIE Regulations making it less likely that individuals would be willing to provide such confidential briefings. It submits that if this were the case, a government department, or a corporate body could use the Regulations to ascertain who leaked a report and that, in this context, the limited exemptions applicable in respect of information with any connection to emissions is relevant.
ii. RTÉ submits that public service broadcasters in Sweden, the Czech Republic, Austria and Germany are not subject to the AIE Directive. It refers again to the decision of the First Tier Tribunal in the UK in Montford in which the Tribunal found that the BBC was not a “public administrative authority” and therefore was not amenable to requests under the Directive. It submits that this decision was given at a time when the UK was still a member of the EU. It argues that the practice in other States where public service broadcasters are not treated as public authorities subject to the Directive is important as EU law must be applied equally throughout the Union as found by the CJEU in Flachglas. It also relied on the decision of the CJEU in Fish Legal in this regard. It therefore argues that the type of body which must grant access to records under the AIE Directive must be uniform across the EU and that it is therefore clear that either all public service broadcasters are “public administrative authorities” or none are.
iii. RTÉ argues that the Opinion of the Advocate General in Friends of the Irish Environment emphasises the importance of linking records to the decision-making powers of public administrative authorities. It refers in particular to paragraph 96 of that Opinion in which the Advocate General notes his belief that neither the Directive nor the Aarhus Convention “was meant to make the mere potential possession of documents relating to the environment subject to the unfettered duty to disclose” since “if that were the case, any IT department of a public authority, or any third party, including perhaps even national security bodies, would be under a duty to disclose the ‘environmental information’ in their possession upon request….without however playing any role in the underlying decision-making process to which that information pertains” and this “would also render meaningless the very objective of increased public participation in environmental decision-making”. It also refers to paragraph 55 of that Opinion in which, it submits, the Advocate General warns against an expansive interpretation of “public authority” and notes that “the overall purpose and spirit of the Aarhus Convention should limit any interpretative creativity which could be attached to the definition of ‘public authority’” and that “if the overall aim of the instrument is to increase public participation and accountability in decision-making in the field of the environment (as the preamble to the Aarhus Convention notes) then the instrument should logically cover the type of bodies or institutions before which such decision-making effectively takes place”.
iv. It submits that in its own case, the decision-making processes at issue are those of journalists and programme editors/makers as it is they who produce and broadcast the material as well as commercial staff in charge of advertising. It submits that those decision-making processes are made independently and do not involve the routine exercise of governmental authority. It also submits that were those decision-making processes to be subject to AIE, items such as editorial records and reporters’ notes would be subject to request and release under the Regulations which would conflict with the EU Charter of Fundamental Rights amongst other things.
v. It submits that RTÉ cannot be considered a “public authority” within the meaning of category (a) of the definition as it is not a governmental or regional body with any political power.
vi. With regard to category (b) of the definition, RTÉ refers to the decision of the CJEU in Fish Legal. It submits that, at paragraph 50 of its decision, the Court endorsed the Aarhus Convention Implementation Guide to the effect that for bodies to be captured under category (b), they must carry out functions “normally performed by governmental authorities” although that function does not have to necessarily relate to the environment. It submits that the functions of a public service broadcaster would not normally be performed by the government in free, democratic societies.
vii. RTÉ also refers to paragraph 52 of the decision in Fish Legal in which the Court found that category (b) concerns administrative authorities defined in functional terms. It submits that the Court stated that such bodies must have been vested with special powers relating to their functions which go beyond the normal rules applicable in relations between persons governed by private law. It submits that it does not have any such special powers and refers to paragraph 83 of the Opinion of the Advocate General which considered public administrative functions to be “functions by virtue of which individuals have imposed on them a will, the immediate effectiveness of which, albeit subject to review, does not require their consent”. It submits that RTÉ does not have special powers to impose its will on individuals.
viii. It submits that RTÉ 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 submits that under the Broadcasting Act 2009, RTÉ is required to be independent.
ix. It refers to the decision of the High Court in Raheenleagh, in which the Court found that it was necessary to examine the activities of the entity concerned and assess whether those activities involved public responsibilities relating to the environment, the discharge of public functions relating to the environment or the performance of public services relating to the environment. RTÉ refers in particular to paragraphs 64 and 67 of that decision and submits 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. It submits that its decisions are independent and it does not have a responsibility in law to broadcast any story or programme or advert.
x. RTÉ also refers to the decision of the CJEU in Friends of the Irish Environment in which it found that category (b) entities were “bodies or institutions which, although not forming part of the government or other public administrations referred to in that first provision, perform executive functions related to the environment or assist in the performance of those functions”. It submits that RTÉ 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 or assist others in the performance of executive functions relating to the environment.
xi. Finally, it refers again to the judgment of the First Tier Tribunal in Montford in which the Tribunal found, at paragraph 37, that “it is not sufficient that the body carried out functions of a public nature” but that “those functions must be expressly administrative functions” as “the limited effect of the word ‘administration’ is critical and determinative when interpreting [section 2(2)(c) of the Environmental Information Regulations]”. It went on to find that “a body which carries out public functions will not fall within the scope of the Regulations unless it is also a body which performs public administrative functions and those functions include ‘specific duties, activities or services in relation to the environment’”.
xii. RTÉ submits that it cannot be considered a “public authority” within the meaning of category (c) as it does not satisfy the test set out at paragraph 71 of Fish Legal which provides that such entities “must perform the public functions related to environmental management with which they are entrusted” and must not be able to “determine in a genuinely autonomous manner the way in which they provide such services”. It submits that the Broadcasting Act 2009 sets out RTÉ’s role, its functions and where ministerial approval is needed and also provides for independence from the state and all others.
xiii. Without prejudice to the above argument, it submits that if RTÉ were a category (c) body at all, the Regulations would only apply in areas where it was not genuinely autonomous or in areas where RTÉ must seek ministerial or governmental approval to carry out certain activities. It refers to the decision in Fish Legal and the Aarhus Convention Implementation Guide in this respect. It submits that RTÉ’s editorial and commercial functions are not under the control of any government department so would not be ‘captured’ if RTÉ was a category (c) body. It submits that certain management functions do require ministerial approval but these do not relate to its broadcasting functions which are independent. It also refers to the decision of the High Court in Raheenleagh where it noted that it was not sufficient for a body to be “under the control” of a category (a) or (b) entity but that the body in question must also have public responsibilities or functions or provide public services relating to the environment. It noted that it was unclear in what manner it could be said that management functions requiring ministerial approval related to the environment.
24. As these were almost identical to the arguments which had been made by RTÉ and considered by me in OCE-108819-S8Z3Y7 , the Investigator wrote to RTÉ to ascertain whether it wished to maintain its position and whether it had any additional comments to make.
25. RTÉ responded with additional submissions in support of its position that it should not be considered a “public authority” which can be summarised as follows:
i. RTÉ referred to the decision of the Supreme Court in Right to Know v Commissioner for Environmental Information & Office of the Secretary General to the President (the President’s case) [2022 IESC 19 ]and submitted that Baker J, in that decision, considered that there were two broad categories of public authorities which come within the scope of the AIE Regulations: entities which are ‘organically’ administrative authorities and administrative authorities defined in functional terms which are entrusted with the performance of services of public interest in the environmental field and which are vested with special powers (paras 166 to 173).
ii. It also submitted that Baker J noted the significance of comments made by Advocate General Bobek in Friends of the Irish Environment, where he warned against “an interpretative creativity” in the interpretation of public authority, and the statement by the CJEU in Flachglas that the purpose of the Directive was to permit access to information from public authorities only to the extent that they act as administrative authorities holding environmental information in the exercise of their functions.
iii. It reiterated the points made about public sector broadcasters in Sweden, the Czech Republic, Austria and Germany not being considered public authorities and the reference to the First Tier Tribunal’s decision in Montford.
iv. It also reiterated the points about press freedom and the independence of its broadcast function which are summarised above.
v. It argued that it does not satisfy the definition of a category (a) public authority as considered in either Fish Legal or NAMA and that my decision in OCE-108819-S8Z3Y7 is inconsistent with those decisions. It argued that it is driven by the national law concept of public law, which is not relevant to the interpretation of the Regulations or Directive. It also argued that the decision displays “the type of ‘interpretative creativity’ which was deprecated by Advocate General Bobek in Friends of the Irish Environment”.
vi. With regard to category (b) of the definition, RTÉ relied on paragraphs 187 and 188 of the judgment of Baker J in the President’s case in which she endorsed what it describes as “an institutional and functional test to the interpretation of the definition of public authority, which requires a consideration of whether entities are either institutionally or functionally those which have been vested with decision-making functions which affect or are capable or affecting the environment”.
vii. RTÉ referred to the judgment of the Court of Appeal in Raheenleagh (para 61) in which it noted that determining whether a body has been entrusted with the performance of services in the public interest involves two aspects – determining whether it has been entrusted with a function in relation to the environment under national law and whether the function is the performance of a service of public interest. It submitted that it is not an administrative authority as it is not a body which has been entrusted with the performance of services of public interest in the environmental field and it has not been vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.
viii. It submitted that it does not perform any functions which are normally performed by governmental authorities and has not been entrusted with any functions under national law which could be regarded as the performance of a service of public interest. It submitted that it does not exercise any decision-making functions with regard to matters which affect or are capable of affecting the environment or in respect of policy on the environment and does not operate upstream or downstream of the legislature in the manner envisaged by Advocate General Bobek in Friends of the Irish Environment.
ix. RTÉ accepted that the Broadcasting Act 2009 assigns certain functions to it but argued that this Act does not mean that RTÉ can be assimilated to natural or legal persons performing public administrative functions within the meaning of category (b) of the definition as it does not perform executive functions relating to the environment or assist in the performance of those functions. It referred to paragraph 35 of the Friends of the Irish Environment case and submitted that the provision of public service broadcasting and the exercise of journalistic functions cannot be described as “executive functions” and that it is not under any statutory obligation to broadcast matters in relation to the environment.
x. It denied that it is vested with any special powers and submitted that my decision in OCE-108819-S8Z3Y7 conflated the provision of funding to it with the concept of special powers. It submitted that the provision of funding to RTÉ and other media organisations cannot be equated with the grant of CPO powers or powers to make bye-laws which were central to the analysis of the issue in Fish Legal. It submitted that the consideration of this issue in Fish Legal, NAMA and Raheenleagh demonstrates that something will be a special power if it allows the body to do something which other persons are not allowed to do.
xi. It submitted that funding arrangements established under the Broadcasting Act 2009 are entirely irrelevant to that question. It also argued that the sections of the 2009 Act referred to in the decision in OCE-108819-S8Z3Y7 (sections 71, 77(4), 77(6) and 74) did not confer RTÉ with the power to do anything, were not equivalent to the power of compulsory acquisition of land, could not be considered analogous to the powers vested in NAMA and were not the type of powers mentioned by the Advocate General at paragraph 85 of his opinion in Fish Legal.
xii. It also submitted that in suggesting that section 114(4) and section 130 of the 2009 Act meet the test of special powers, the decision in OCE-108819-S8Z3Y7 conflates the concept with functions granted by RTÉ to allow it to operate as a matter of law with that of special powers.
xiii. RTÉ reiterated the points summarised at (viii) and (ix) above in support of its argument that it is not a body which has public responsibilities or functions or performs public services relating to the environment such that it cannot come within category (c) of the definition of “public authority” set out in the Regulations and the Directive. It reiterated that it is not under any statutory obligation with regards to the environment and is not required by law to broadcast on issues relating to the environment.
xiv. RTÉ’s submissions then dealt with the “control” test which is the second limb of the test to establish whether an entity can be considered a “public authority” within the meaning of category (c) of the definition. RTÉ noted that the assessment of control requires it to be shown that the body in question “does not determine in a genuinely autonomous manner the way in which it performs its functions in the environmental field which are vested in it”. It submitted that it is also necessary to show that a public authority has had an actual impact on the entity’s decision making and referred to paragraph 85 of the Court of Appeal’s decision in Raheenleagh in this regard.
xv. RTÉ noted that the common provisions for Public Service Broadcasting Corporations are contained in Chapter 1 of Part 7 of the Broadcasting Act 2009. It noted that these provide for the appointment of a Board of Directors, the duties of which are set out at section 87 of the Act and include an obligation to “safeguard the independence of the corporation, as regards, the conception, content and production of programmes, the editing and presentation of news and current affairs programmes and the definition of programme schedules from State, political and commercial influences”. It also referred to section 98 of the Act which provides that “subject to the requirements of this Act, a corporation shall be independent in the pursuance of its objects”.
xvi. It argued that as a matter of law, RTÉ is independent in the discharge of its objectives and that such statutory independence demonstrates that RTÉ is genuinely autonomous in the discharge of its functions and is not subject to the decisive influence of a public authority which comes within category (a) or (b) of the definition. It submitted that in the absence of such control from another entity, RTÉ cannot be a public authority within the meaning of category (c) of the definition.
xvii. It stated that the decision in OCE-108819-S8Z3Y7 is premised on a suggestion that RTÉ is under the control of the Oireachtas on the basis that the legislative regime provides for “supervision” by the Oireachtas and that this is incorrect as a matter of law and fact. It provided the following reasoning in support of its position:
a. It stated that the Oireachtas is exempt from the definition of “public authority” when acting in a legislative capacity by virtue of article 3(2) of the AIE Regulations and therefore cannot be the body under whose control RTÉ is for the purposes of category (c).
b. It submitted that the suggestion that RTÉ is under the control of either the Government, the Minister for Culture, Heritage and the Gaeltacht or the Oireachtas because of the appointments process for the Board of RTÉ is misconceived. It submitted that the nomination of persons to the Board of Directors does not imply that either those individuals or the entity as a collective are subject to the control of the Government, the Minister or the Oireachtas. It submitted that the decision in OCE-108819-S8Z3Y7 ignores the statutory obligations placed on directors and the requirement of independence in the Broadcasting Act 2009.
c. It submitted that the conclusion reached in OCE-108819-S8Z3Y7 is unsupported by any evidence as there is nothing which could allow a conclusion that RTÉ does not determine in a genuinely autonomous manner how its functions are to be exercised. It submitted that the Upper Tribunal in Fish Legal notes that it is not sufficient to show the potential for influence, it is necessary to show an actual impact on decision-making.
26. In my decision in OCE-108819-S8Z3Y7 I found that RTÉ satisfied categories (a), (b) and (c) of the definition contained at article 3(1) of the AIE Regulations. As I have outlined on a number of previous occasions, my decisions are not binding and I consider each case afresh on the basis of its individual facts. That being said, the facts underlying the analysis of whether RTÉ is a public authority have not altered since my previous decision and I note my obligation to act consistently by treating like cases alike unless there is good reason for not doing so.
27. It must be acknowledged however that the legal position has altered since the decision in OCE-108819-S8Z3Y7 . In September 2022, the Court of Appeal in Raheenleagh issued a decision which dealt with the interpretation and application of categories (b) and (c) of the definition of “public authority”. That decision is the subject of an appeal to the Supreme Court and the decision of the Supreme Court is awaited. I did consider therefore whether it would be appropriate to put this appeal on hold pending the Supreme Court’s decision. However, for the reasons outlined below, I do not ultimately consider that to be necessary.
Category (a) – government or other public administration, including public advisory bodies, at national, regional or local level
28. In the first instance, the decision in Raheenleagh does not deal with category (a) of the “public authority” definition. The decision of the CJEU 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 it is therefore useful to look to that decision for guidance in the first instance, as I did in OCE-108819-S8Z3Y7 . At paragraph 51 of its decision in that case, the CJEU 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”.
29. RTÉ has criticised my reasoning in OCE-108819-S8Z3Y7 in its additional submissions arguing that it is inconsistent with NAMA and Fish Legal and driven by the national law concept of public law, which is not relevant to the interpretation of the Regulations or Directive. It also argues that the decision displays “the type of ‘interpretative creativity’ which was deprecated by Advocate General Bobek in Friends of the Irish Environment”.
30. I acknowledge that the Supreme Court in NAMA notes that provisions of national law must be interpreted in a manner which is “consistent with the provisions of the Directive” and that it “would not be correct, to approach the question of interpretation solely through the prism of national law” since the AIE Directive is “addressed to member states and intended to take effect in different national legal systems” (see paragraphs 10 and 11). However, the essential function of a directive is to allow for the application of principles of EU law in a national law context and it is therefore necessary to have some regard to national systems. Category (a) of the definition specifically refers to bodies existing “at national, regional or local level” and the guidance in Fish Legal specifically refers to category (a) bodies as “legal persons governed by public law which have been set up by the State”. I am satisfied on that basis that it is not only correct, but also necessary, to approach the question by considering whether the national law which applies to the establishment and governance of RTÉ brings it within category (a) of the definition. I reiterate the basis for my conclusion that RTÉ satisfies category (a) of the definition below and cannot see how this conclusion involves “the type of ‘interpretative creativity’ which was deprecated by Advocate General Bobek in Friends of the Irish Environment” as RTÉ suggests.
31. 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. The Broadcasting Act 2009 makes detailed provisions for the governance, operation and funding of RTÉ and sets out its principal objects and powers.
32. 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.
33. 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).
34. 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(2008)723 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 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 (which has been replaced by Coimisiún na Meán with effect from 15 March 2023). 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.
35. 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.
36. 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).
37. 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” referred to in category (a) of the definition 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”.
38. I therefore remain satisfied that RTÉ is a “public authority” within the meaning of article 3(1)(a). In the circumstances, it is not therefore necessary for me to analyse whether RTÉ might also fit the definitions of “public authority” contained at categories (b) and (c) of the definition. I am therefore satisfied that I can conclude that RTÉ is a “public authority” within the meaning of the AIE Regulations pending the delivery of the Supreme Court judgment in Raheenleagh which will deal only with categories (b) and (c) of that definition.
Press Freedom
39. Before I move on to the question of whether the information at issue in this appeal is “environmental information”, I should note that RTÉ has also reiterated the arguments considered in OCE-108819-S8Z3Y7 relating to press freedom. As noted in that decision, 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”.
40. 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”.
41. I remain unconvinced that a finding that RTÉ is subject to the requirements of the AIE Regulations would 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.
Is the information sought “environmental information” within the meaning of the AIE Regulations?
42. As I am satisfied that RTÉ is a “public authority” within the meaning of the Regulations, I must now go on to consider whether the information requested by the appellant is “environmental information”. Article 3(1) of the 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).
43. The information at issue in this appeal is that requested in parts (ii) and (iii) of the appellant’s original request, that is:
ii. a record of how many representations RTÉ has received regarding its coverage of climate change in (a) the calendar year 2020; and (b) the calendar year so far 2021;
iii. a copy of all representations/correspondence received by RTÉ relating to their coverage of climate change issues in 2021. If there is a particularly large volume of such correspondence this year, I am happy to take a representative sample of say 25 pieces.
44. RTÉ submits that neither part (ii) nor part (iii) of the requests relate to “environmental information” and its arguments in this regard can be summarised as follows:
i. In its internal review decision, RTÉ indicated that it was dealing with the request outside the scope of the AIE Regulations as it did not consider the information requested to be “environmental information” within the meaning of article 3(1) of the Regulations.
ii. RTÉ accepts that the High Court in RTÉ found that broadcasting and reporting on the issue of climate change are measures and activities within the meaning of paragraph (c) of the definition of “environmental information”. However it does not accept that the information sought by the appellant is information “on” broadcasting and reporting of climate change and argues that the information in question is too remote from the identified measure or activity.
iii. RTÉ notes that part (ii) of the appellant’s request seeks the number of representations received by RTÉ relating to its coverage of climate change issues in 2020 and 2021. It submits that there is no record which contains the answer to this question so that providing the information requested would require it to examine the thousands of representations it receives every week from a whole host of sources on a whole range of issues to determine how many relate to climate change. It submits that the definition of “environmental information” contained at article 3(1) covers information in a “material form” meaning that it is a pre-requisite that the information exists in the first place. It argues that if “information” is to be interpreted to include something that does not actually exist at the time of a request, it would create almost infinite possibilities of questions that must be answered under AIE. It submits that the Regulations, Directive and Convention do not require the creation of information or a record and that requiring a public authority to do so would be an exceptionally broad interpretation of the legal requirements.
iv. RTÉ refers to the decision of the CJEU in Glawischnig in which it was held that something more than a minimal connection between records and the relevant environmental factor was required. 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 (in particular paragraph 40 and paragraphs 45-50), the Court of Appeal in Redmond (in particular paragraphs 99-101) 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 categories (b) or (c) of the definition 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 information sought at part (iii) of the appellant’s request is 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 representations/correspondence 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 feedback from members of the public the information sought at part (iii) is not crucial or fundamental to the broadcasting of climate change matters.
vi. RTÉ also points to the decision of the CJEU in Mecklenburg in which the CJEU 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, correspondence and representations as sought at part (iii) could not influence its editorial decision making processes. It submits that while it is always cognisant of what its viewers and listeners are saying, correspondence and representations do not influence editorial decisions and therefore cannot be fundamental to broadcasting and reporting on climate change.
vii. RTÉ submits that the link between records and the decision-making process was highlighted in paragraph 96 of the opinion of Advocate General Bobek in Friends of the Irish Environment. It also refers to the Opinion of the Advocate General in C-524/09 Ville de Lyon which noted that the definition of environmental information in the current AIE Directive was considered to be more expansive than that contained in its predecessor but went on to restate, what RTÉ refers to as the Glawischnig principle, that “neither the old nor the new [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”. RTÉ further submits that although the Mecklenberg judgment stated that environmental information was to be given a broad interpretation it is not limited. It also refers to the decision in Minch in which Hogan J referred to the Glawischnig decision. Having regard to those decisions, RTÉ submits that the question properly falling for considerations is: “Would the release of the requested records lead to more effective participation by the public in environmental decision-making and, eventually, to a better environment?”.
viii. It submits that the Court of Appeal of England and Wales, in Henney, suggested that paragraph (c) of the definition of “environmental information” 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 such that information not relevant or useful to that purpose would not be required to be provided under AIE.
ix. It submits that the release of the information sought in part (iii) of the request cannot assist the “effective participation by the public” in environmental decision-making nor can it advance the principles and purpose of the Convention or Directive meaning that it is not “environmental information”.
45. I will deal firstly with the question of whether the information requested can be considered to be information “on” one of the categories set out in parts (a) to (f) of the definition before I consider the arguments made by RTÉ in support of its position that part (ii) of the request is not a request for “environmental information” because it does not hold any such information in “material form”.
46. 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. RTÉ accepts that the High Court in RTÉ found that broadcasting and reporting on the issue of climate change is a measure and activity within the meaning of paragraph (c) of the definition of “environmental information” contained in article 3(1) of the Regulations. The High Court was also satisfied 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)). The question to be addressed therefore is whether the information requested constitutes information “on” climate change and/or broadcasting on climate change by RTÉ.
47. 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.
48. 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”.
49. 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 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).
50. 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 information at issue in this case is 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 representations 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 representations from members of the public or external sources, the information is not crucial or fundamental to the broadcasting of climate change matters.
51. 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).
52. RTÉ does also argue that the information in question is too remote to be considered information “on” its broadcasting on climate change issues. It submits that the question properly falling for consideration is whether the release of the information sought would lead to more effective participation by the public in environmental decision-making and, eventually, to a better environment. It submits that the Court, in Henney, suggested that paragraph (c) of the definition of “environmental information” 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 such that information not relevant or useful to that purpose would not be required to be provided under AIE. It argues that because representations and correspondence on its reporting on climate change do not have a direct impact on editorial decisions, release of that information cannot assist the “effective participation by the public” in environmental decision-making nor can it advance the principles and purpose of the Convention or Directive meaning that it is not “environmental information”.
53. I do not agree, however, with RTÉ’s position that representations or correspondence from the public or external sources cannot advance the principles of the Aarhus Convention or the AIE Directive simply because they cannot directly influence editorial decisions. 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).
54. Representations and correspondence 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). Representations and correspondence providing feedback on climate change broadcasting 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.
55. RTÉ is of course correct to note that the concept of “environmental information” has its limits but Henney (as adopted by the High Court in the RTÉ case) makes it clear that the line is to be drawn having regard to the purposes of the Aarhus Convention and the AIE Directive. I do not agree with RTÉ that correspondence and representations on its climate change broadcasting cannot advance the purposes of the Convention or the Directive simply because they do not have a direct influence on editorial decisions. 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). Representations from members of the public and external sources on RTÉ’s climate change broadcasting will provide information on their views as to that broadcasting. 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 such 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. Even if feedback from members of the public were not to have 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. I also note that RTÉ’s Strategy Statement for 2018 to 2022 expressly notes that one of its key values is to be outward looking, in other words, to “have a deep understanding of its audience and their needs” and that the Feedback section of its website notes that feedback “is considered for inclusion in RTÉ’s weekly Audience Log which is circulated to senior managers in RTÉ, including programme makers, and shared at weekly editorial meetings” as well as being shared “with programme teams outside of this process, as appropriate”.
56. I am therefore satisfied that the information requested at part (iii) of the request is “environmental information” within the meaning of the AIE Regulations.
57. The number of such representations, as requested in part (ii), is also, in theory, information “on” RTÉ’s climate change broadcasting. One of the purposes of the Convention and the Directive, as set out at Recital 1 of the Directive, is to promote greater awareness and a free exchange of views on environmental matters. Awareness of the number of representations received by RTÉ contributes to debate and discussion in relation to its climate change broadcasting – if the number of representations is high this might lead to questioning and discussion as to whether this is because there is public dissatisfaction with the extent or content of such broadcasting, if it is low it might stimulate discussion about whether such broadcasting is sufficient in its extent or indeed sufficiently engaging. I accept that RTÉ is also of the view that in the circumstances of this case the information sought cannot be considered to exist in “material form” which is another element of the definition and so I will address this issue next.
58. RTÉ notes that part (ii) of the appellant’s request seeks the number of representations received by RTÉ relating to its coverage of climate change issues in 2020 and 2021. It submits that there is no record which contains the answer to this question so that providing the information requested would require it to examine the thousands of representations it receives every week from a whole host of sources on a whole range of issues to determine how many relate to climate change. It submits that the definition of “environmental information” contained at article 3(1) on covers information in a “material form” meaning that it is a pre-requisite that the information exists in the first place. It argues that if “information” is to be interpreted to include something that does not actually exist at the time of a request, it would create almost infinite possibilities of questions that must be answered under AIE. It submits that the Regulations, Directive and Convention do not require the creation of information or a record and that requiring a public authority to do so would be an exceptionally broad interpretation of the legal requirements.
59. RTÉ accepts that it has received representations regarding its coverage of climate change in 2020 and up to 19 July 2021 (the date of the appellant’s request). Its position is that it has not counted those representations and so did not have a record of the number of such representations at the date of the appellant’s request. It argues that the request for “a record of how many representations RTÉ has received regarding its coverage of climate change in a/ the calendar year 2020 and b/ the calendar year so far 2021” is therefore not a request for “environmental information” since it did not hold information on the number of representations received in “material form”. The appellant argues that while the Freedom of Information Act provides for an entitlement to access “records”, the AIE Regulations provide for an entitlement to access “information” and submits that the information requested at part (ii) of his request could be provided by RTÉ with minimal effort.
60. Article 7(1) of the Regulations obliges a public authority to “make available to [an] applicant any environmental information, the subject of the request, held by, or for, the public authority”. “Environmental information held by a public authority” is defined as “environmental information in the possession of a public authority that has been produced or received by that authority”. “Environmental information held for a public authority” is “environmental information that is physically held by a natural or legal person on behalf of that authority”. The definition of “environmental information” is set out at paragraph 74 above and, in summary, covers “any information in…any…material form” on any of the categories set out at paragraphs (a) to (f) of the definition.
61. The question to be addressed then is what is meant by “material form”. In interpreting that term, regard must be had to the overall purpose of the Directive as well as to the wording of the Regulations, the Directive and the Aarhus Convention. As the CJEU in Fish Legal note, the Aarhus Guide can also be used for explanatory purposes although it is not of normative effect. The Aarhus Guide notes that:
“Environmental information may be in any material form, which specifically includes written, visual, aural and electronic forms. Thus paper documents, photographs, illustrations, video and audio recordings and computer files are all examples of the material forms that information can take. Any other material forms not mentioned, existing now or developed in the future, also fall under this definition […].
It is also important to distinguish between documents and information. The Convention guarantees access to information. The “material form” language is not meant to restrict the definition of environmental information to finished products or other documentation as that may be formally understood. Information in raw and unprocessed form (sometimes referred to as “raw data”) is covered by the definition as well as documents.
By way of contrast, in Case T-264/04 WWF-EPO v Council of the European Union, the European Court of First Instance ruled that the “concept of document must be distinguished from that of information”. Thus, under the Transparency Regulation, the Community institutions were only obliged to disclose information held in the form of a formal document, as opposed to “…any information in written, visual, aural or electronic or any other material form” as defined in article 2, paragraph 3, of the Aarhus Convention (and article 2, paragraph 1(d), of the Aarhus Regulation). At the time the case was brought, the Aarhus Regulation had not yet been promulgated and today this unduly narrow interpretation of document/information would no longer apply” (see p 51).
62. The Aarhus Guide thus indicates that information does not need to have been completed or formalised in order to come within the definition. That would appear to me to lend support to the view that if RTÉ holds representations on its climate change reporting which were received in 2020 and 2021 (within the time period of the appellant’s request) then the fact that it had not counted those representations and recorded that number in a document would not mean that it did not hold information as to the number of representations in material form so as to take part (ii) of the appellant’s request outside the scope of the definition of “environmental information”. In other words, it can be said that information as to the number of representations received by RTÉ in 2020 and 2021 does exist in material form insofar as the representations themselves exist and the number of them could be obtained if RTÉ identified and retrieved those representations and counted them.
63. The Cambridge Dictionary contains a number of definitions of the term “material” demonstrating the variety of ways in which the term can be understood. Those definitions include “a physical substance that things can be made from”, “relating to physical objects or money rather than emotions or the spiritual world”, “important or having an important effect” and “information used when writing something such as a book”. It is also possible to interpret “material form” as being the opposite of abstract. The Cambridge Dictionary definition of “abstract” is “existing as an idea, feeling, or quality, not as a material object”. None of those definitions would appear to me to contradict the proposition that information as to the number of representations received by RTÉ in 2020 and 2021 does exist in material form because the representations themselves exist and can be counted.
64. However, these sources alone are not authoritative. There does not appear to be guidance in case law on the interpretation of “material form” but regard can be had to other provisions of the Directive in order to glean its purpose and ensure a teleological interpretation of the phrase.
65. The most logical place to start in this case would appear to be by examining the definitions of “environmental information held by a public authority” and “environmental information held for a public authority”, both of which are set out at paragraph 60 above.
66. Environmental information held by a public authority is defined as information which is “in the possession of a public authority that has been produced or received by that authority”. The circumstances in which environmental information can be considered to be held by a public authority have been considered by the UK Courts in Holland with regard to the Environmental Information Regulations 2004, through which the UK transposed the AIE Directive. The issue has also been considered to some extent by the Irish Courts with regard to Freedom of Information legislation in Minister for Health. Those cases suggest that in order for information to be held by a public authority, that authority must be in possession of that information in connection with or for the purposes of its business or functions. In other words, there must be a sufficient connection between the information and the authority to warrant a conclusion that it “holds” the information, although it is not necessary that the information is held by the public authority solely or predominantly for its purposes. In Holland the Upper Tribunal noted that the inclusion of the specific and important word “by” in the phrase “produced or received by” showed that “the authority itself must be the producer or recipient of the information”. This meant “a factual determination is required as to how the information has come to be in the possession of the authority” such that it must be ascertained “whether it was produced or received by means which were connected with the authority” and whether the connection was “such that it can be said that the production or receipt of the information is attributable to (“by”) the authority” (see para 48). This definition and the case law which considers it are of limited assistance but it does lend some support in my view to the conclusion that since RTÉ received the representations and correspondence which are the subject matter of the request, information on the number of representations received should be considered information held by RTÉ.
67. Environmental information held for a public authority is information that “is physically held by a natural or legal person on behalf of that authority”. The use of the term “physically held” in this definition along with the use of the term “material form” in the definition of environmental information would appear to suggest that environmental information does not include information which only exists in the abstract i.e. in respect of which there is no tangible or physical record. In this case however, there is a tangible or physical record of the representations themselves and those representations can be counted to provide the appellant with the information he is requesting.
68. Assistance in considering what is meant by “material form” as included in the definition of “environmental information” can also be gleaned from other provisions of the Directive including article 7 and article 3(5). Article 3(5) of the Directive requires Member States to ensure that “officials are required to support the public in seeking access to information” and that “the practical arrangements are defined for ensuring that the right of access to environmental information can be effectively exercised”. Article 7(1) seeks to ensure that public authorities are required “to organise the environmental information which is relevant to their functions and which is held by or for them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology, where available”. Article 7(2) provides that “the information to be made available and disseminated shall be updated as appropriate”. The extent to which the obligations contained in articles 3(5) and 7 have been transposed by the Regulations has not been fully explored but it is clear from the jurisprudence of the CJEU, in cases such as C-188/89 Foster v British Gas plc, that those obligations have direct effect on public authorities to the extent that they can be considered emanations of the state.
69. The clear obligation contained in the Directive to organise environmental information with a view to ensuring its availability to the public in my view undermines RTÉ’s argument that because it has not kept a record of the number of representations received in relation to its coverage of climate change, it should be allowed to treat the request as falling outside the scope of the Regulations. I am cognisant firstly 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 and the organisation of environmental information. However, as the Supreme Court noted in NAMA the Regulations must be interpreted teleologically in order to achieve the purpose of the AIE Directive (paragraph 10). I am also conscious that the European Commission, when preparing the AIE Directive (see COM/2000/0402 final - COD 2000/0169 ), noted explicitly that compliance with the AIE Directive should not involve disproportionate cost or effort or obstruct or significantly interfere with the normal course of its activities. It may well be the case that RTÉ is justified in refusing part (ii) of the appellant’s request or in refraining from organising information in relation to the number of representations it receives. However, those are issues which can be dealt with when determining the substantive issue of whether refusal is justified in the circumstances of a given case. From a more general perspective however, interpreting “material form” in the manner contended for by RTÉ risks allowing public authorities to refuse requests for environmental information because they had failed to comply with their obligations to organise that information appropriately. This would clearly be contrary to the stated aim of the Directive which is to ensure that “public authorities make available and disseminate environmental information to the general public to the widest extent possible” (see Recital 9).
70. I am therefore satisfied that the appellant’s request for “a record of how many representations RTÉ has received regarding its coverage of climate change in a/ the calendar year 2020 and b/ the calendar year so far 2021” is a request for information on RTÉ’s climate change broadcasting which exists in a “material form” in circumstances where RTÉ has acknowledged that it has received and holds representations but disputes that it is obliged to retrieve and count the number of representations received. The information requested can therefore be considered “environmental information” within the scope of the AIE Regulations.
71. I should note that RTÉ also argues that the information requested in part (ii) of the request should not be considered to be held by it as many staff have left the organisation and had their email accounts closed and many records which might have constituted representations relating to climate change would have been deleted arising from a change in computer systems as they were unnecessary for operations. For the purposes of this review, my concern relates only to the environmental information which was held by or for RTÉ at the date of the appellant’s request. I consider that would include the number of representations as sought at part (ii) of the request which are held in a “material form” and can be counted once reasonable and adequate steps are taken to identify and retrieve them. It does not however include information which is not, in fact, held by or for RTÉ in a “material form”.
Does article 9(2)(a) of the Regulations provide grounds for refusal of the request?
72. Finally, RTÉ argues that if it is a “public authority” and the information requested is considered to be “environmental information”, it is still entitled to refuse the request on the grounds that it is “manifestly unreasonable” such that article 9(2)(a) of the AIE Regulations would apply.
73. For the reasons outlined below, I do not consider it open to RTÉ to rely on article 9(2)(a) of the Regulations to refuse the request, as matters stand. Article 12(5)(c) of the Regulations provides me with jurisdiction “where appropriate” to “require the public authority to make available environmental information to the applicant”. However, I do not consider it appropriate to make such a direction in this case. This is because it is not currently clear exactly what information is held by or for RTÉ within the scope of the appellant’s request nor is it clear, in my view, exactly what the appellant is seeking. As noted below, the appellant’s request states that he would be “happy to take a representative sample…if there is a particularly large volume of…correspondence”. While RTÉ did provide the appellant with what it considered to be a sample of representations and correspondence, no engagement took place with the appellant as to the scope of his request as RTÉ was of the view that it was not subject to the AIE Regulations in processing the request. As the precise information at issue has yet to be identified, I consider the most appropriate course of action to be a remittal of the request to RTÉ to be processed as a request for environmental information in accordance with the provisions of the AIE Regulations. I am conscious that this will give rise to further delays to the conclusion of a request which was made in 2021. However, the alternative is to require RTÉ to release an unknown number of representations or correspondence or to provide such representations or correspondence to this Office for analysis as part of this appeal. For the avoidance of doubt, I do not seek to pre-judge matters but it must be acknowledged that the level of representations coming within the scope of the request might be such as to make even a search and retrieval process so onerous that it could possibly fall within the manifestly unreasonable exception. It is not possible to make such an assessment in the absence of further information from RTÉ as to the extent of the information at issue. In circumstances where no engagement has taken place with the appellant the precise scope of his request cannot be understood. Given the delay that has passed however, and in an attempt to avoid further unnecessary delay, I do consider it appropriate to engage with some of the arguments currently made by RTÉ in support of its reliance on article 9(2)(a). None of the commentary below should be understood as a pre-judgment of any issues which might come before me in a future appeal, instead it is included to flag the issues which should be considered by RTÉ as part of its fresh decision-making process on the request.
74. As mentioned above, RTÉ submits that it does not hold a record containing the answer to the question posed at part (ii) of the request (i.e. the number of representations on its climate change reporting for 2020 and 2021). It submits that in order to provide this information it would need to read hundreds, if not thousands, of emails and phone call notes. It submits that RTÉ receives thousands of representations every week from a host of sources on a range of issues and to establish how many of them relate to climate change would be a vast undertaking.
75. My Investigator asked RTÉ how it had provided the appellant with a representative sample of all representations/ correspondence received by it relating to its coverage of climate change issues in 2021 in circumstances where it had not reviewed all of the communications received in relation to climate change reporting. It explained that the records provided were extracted from emails sent by members of the public to the two main avenues for contacting RTÉ info@rte.ie and feedback@rte.ie and also included one record of a telephone call to the information office. It submitted that while a relatively simple search term was used to extract the records provided to the appellant, such an exercise could not give an accurate figure of the total numbers of emails or calls received. By way of example, it submitted that using “climate” as a search term would capture certain records but would not capture emails or calls which referred to the “environment” or “global warming” even though those terms too would relate to communications regarding RTÉ’s coverage. In addition, using “climate” as a search term might lead to other matters being captured such as emails and calls about a “climate of fear” being created by Covid-19. It submits that attempting to process the request organisation-wide, to establish what records are currently held, would mean contacting many hundreds of staff to see if they had received any contacts from anyone over a nineteen-month period in relation to climate change which would in turn require RTÉ personnel to read many tens if not hundreds of thousands of records to see if they relate to or are a representation on climate change.
76. Article 9(2)(a) of the AIE Regulations provides that “a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought”. It transposes article 4(1)(b) of the AIE Directive which provides that “Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable”.
77. The question of what constitutes a “manifestly unreasonable” request must be approached teleologically, having regard to the purpose of the AIE Directive (see NAMA paragraph 10). The AIE Directive makes it clear that its purpose is to ensure “increased public access to environmental information and the dissemination of such information” and that “the disclosure of information should be the general rule” such that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases” with grounds for refusal interpreted “in a restrictive way” (see Recitals 1 and 16).
78. In addition, article 7(2)(b) of the Regulations and 3(2)(b) of the Directive envisage the processing of voluminous and complex requests and provide for extensions on the one-month timeframe within which a public authority is normally required to issue a decision on a request. It is clear therefore that a request is not necessarily covered by the “manifestly unreasonable” exception just because it is voluminous or complex. Article 7(1) of the Directive imposes an obligation on Member States to ensure that public authorities organise environmental information which is relevant to their functions, and held by or for them, with a view to its active and systematic dissemination while article 3(5) provides for a duty to support the public in seeking access to information and to put practical arrangements in place to ensure the effective exercise of the right of access to environmental information. Article 5 of the Regulations seeks to implement those provisions and provides, inter alia, that public authorities must “make all reasonable efforts to maintain environmental information held by or for [them] in a manner that is readily reproducible and accessible by information technology or by other electronic means”. In his Opinion in Commission v Germany, Advocate General Fennelly 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 paragraph 30). This indicates that the mere fact that a request is detailed does not mean that it is necessarily unreasonable.
79. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, I must examine whether responding to the request would involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. In light of the findings of the CJEU in Verein für Konsumenteninformation (see paragraphs 101-115) I consider that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request. In that regard, the test set out by the CJEU in at paragraph 69 of its decision in Land Baden-Württemberg should be borne in mind:
“…[A] public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.”
80. The European Commission’s First Proposal for the AIE Directive ( COM/2000/0402 final - COD 2000/0169 ) envisaged that the exception in article 4(1)(b) would cover requests “variously described in national legal systems as vexatious or amounting to an abus de droit. Moreover, compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. Authorities should be able to refuse access in such cases in order to ensure their proper functioning”. The interest which the “manifestly unreasonable” exception seeks to protect therefore is the interest in ensuring a public authority is not overburdened by a request, to the extent that this interferes with its ability to perform its other tasks and duties.
81. That being said, it is also important to bear in mind the duties imposed on public authorities by articles 7 and 3(5) of the AIE Directive. The extent to which the obligations contained in articles 3(5) and 7 have been transposed by the Regulations has not been fully explored but it is clear from the jurisprudence of the CJEU, in cases such as C-188/89 Foster v British Gas plc, that those obligations have direct effect on public authorities to the extent that they can be considered emanations of the state. 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. The exception in article 9(2)(a) is not intended to endorse any failure by public authorities to comply with their duties to organise and disseminate information. This means that when considering the workload imposed by a request, it is important not to enable a situation where a failure to comply with the obligations imposed by articles 7 and 3(5) of the Directive and article 5 of the Regulations increases the prospect that a public authority will be able to successfully rely on the “manifestly unreasonable” exception. This would lead to a perverse situation whereby failure to comply with certain obligations under the Directive and Regulations would effectively be rewarded by the application of less onerous standards by this Office on review of requests under article 12.
82. In this instance, the request is for the number and content of representations and correspondence made to RTÉ on its climate change broadcasting. I accept RTÉ’s position that correspondence could have been received by its Board of Directors, its Executive Board, various senior managers, news editors, programme editors, producers and other staff. I also accept that RTÉ’s public broadcasting functions mean that it will receive what might be considered “representations and correspondence” on a daily basis from members of the public in high numbers, for example through texts, emails and phone calls to radio shows or current affairs television programmes which invite such views. RTÉ has argued that asking relevant staff (of which it estimates there may be 1000) to undertake those searches would cause widespread disruption to its core function of broadcasting due to the number of people who would have to conduct what it terms as “widescale” searches.
83. For the avoidance of doubt, I do not seek to dismiss the potential conflict of interests which might arise in this case and which the “manifestly unreasonable” ground for refusal was intended to mitigate against. RTÉ undoubtedly receives a multitude of correspondence given its functions as a public service broadcaster and if, for example, a request was made to RTÉ for “all environmental information held by or for it on “climate change”, which would potentially capture every text sent to programmes (particularly programmes which actively seek audience engagement, such as Joe Duffy, Claire Byrne or Drive Time) along with any phone call, email or other form of correspondence where “climate change” was mentioned, it might reasonably be said that it would not be in the public interest for RTÉ to divert time and resources away from its public service broadcasting functions in order to provide a complete response to such a request. The provisions of the Regulations and the Directive seek to avoid such perverse effects but they make it clear that it is only possible to address these issues having regard to the specific circumstances of an individual case (see, for example, article 10(3) of the Regulations). The CJEU in Land Baden-Württemberg has emphasised this by making it clear that a public authority must demonstrate a “reasonably foreseeable” risk that disclosure will give rise to an adverse effect as opposed to a “purely hypothetical” one (see para 69).
84. The issue in this case, in my view, is that RTÉ has sought to interpret and apply the grounds for refusal contained at article 9(2)(a) in an overly broad manner contrary to the restrictive approach mandated by Recital 16 of the Directive which makes it clear that “disclosure of information should be the general rule” and by article 10(4) of the Regulations which provides that “the grounds for refusal must be interpreted on a restrictive basis having regard to the public interest served by disclosure”.
85. In this case, there is a clear public interest in my view, in disclosure of representations and correspondence received by RTÉ relating to its coverage of climate change issues. As noted by the High Court in RTÉ, the national broadcaster plays a crucial role in the dissemination of environmental information through the broadcasting and reporting of climate change issues (see paragraphs 32 and 33). The High Court also noted the “remarkable ability of the national public service broadcaster to influence public opinion and hence individual behaviour” (paragraph 45). As outlined at paragraphs 54 and 55 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…inform and educate…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). Representations from members of the public and external sources on RTÉ’s climate change broadcasting will provide information on their views as to that broadcasting. 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 such 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. One cannot know the extent to which such feedback and representations are being considered without having information as to the level and content of those representations. There is therefore a public interest in that information being accessible to the public.
86. There is also, undoubtedly, an interest in seeking to ensure that RTÉ has sufficient time and resources available to it to carry out its public service broadcasting functions. The issue in this case is that due to the manner in which RTÉ has sought to invoke the “manifestly unreasonable” ground, we find ourselves more in the realm of the hypothetical than the reasonably foreseeable. RTÉ’s approach has been to argue that it is not a “public authority”, that the information at issue is not “environmental information” and that even if it is wrong on both counts, provision of the information at issue would be “manifestly unreasonable”. It is not uncommon for public bodies to invoke threshold issues at the same time as grounds for refusal but it must be said that this approach risks bringing arguments invoked, as a last resort, in support of the exception into the “purely hypothetical” category. In this case, RTÉ argues, on the one hand, that it is not possible to comply with the appellant’s request while explaining, on the other hand, that it sought to provide him with what it considered to be a “representative sample” of representations/correspondence received by it regarding its coverage of climate change up to 19 July 2021 by searching through emails sent to info@rte.ie and feedback@rte.ie using the term “climate change”. This search was conducted by the Information Office, which operates both accounts, and resulted in 563 emails being ‘captured’ in the info inbox and 51 in the feedback inbox. Forty emails were randomly selected (10 each from the two inboxes in 2020 and 10 each from the inbox up to 19/7/21). From those, a selection was released to the appellant. It is therefore possible for RTÉ to provide at least some information to the appellant in response to his request.
87. At the same time however, RTÉ argues that it should be entitled to refuse the appellant’s request in its entirety. In making that argument, it has not explained why it cannot comply with the appellant’s request without causing widespread disruption to its core function of broadcasting nor has it provided any additional detail which would demonstrate that a requirement to retrieve representations would involve a disproportionate cost or use of time. It has suggested that a search for “climate” would not retrieve all information relating to climate change but it has also identified additional search terms which might be used.
88. It is also important to recall that the test adopted by my Office when ascertaining whether a public authority has provided a requester with all relevant information held by or for it is whether it has conducted reasonable and adequate searches to identify and retrieve information within the scope of the request. A public authority is not expected to achieve perfection, it is expected to do what is reasonable and appropriate to identify information. As noted above, RTÉ has identified a number of search terms which might be used to capture representations and correspondence received in relation to its climate change broadcasting such as “environment”, “global warming” and “conspiracy”. It is also open to RTÉ to engage with the appellant if it is unsure as to the scope of his request or whether the search terms it has chosen are sufficient to capture the information he is seeking or, indeed, if it considers that the only possible interpretation of the request is that it is too broad. This could involve a similar approach as that mandated by article 7(8) of the Regulations where an appellant has made a request which the public authority considers to be too general. If it were the case that, following such engagements, RTÉ remained of the view that responding to the request would be manifestly unreasonable, it would be open to it to invoke the grounds for refusal provided for at article 9(2)(a). I note in this regard that the wording of the appellant’s request, in which he notes that he would be “happy to take a representative sample…if there is a particularly large volume of…correspondence”, suggests some degree of flexibility on his part.
89. In those circumstances, it does not appear to me that RTÉ is justified, as matters stand, in reaching the conclusion that the request is manifestly unreasonable such that article 9(2)(a) of the Regulations applies.
90. RTÉ also argues that requiring programme making staff to produce records received in the course of their work and releasing those records “would be in clear breach of the Constitution and various international treaties to which Ireland is a signatory”. With respect, the basis on which a request to staff to produce information received and handled by them in the course of their employment and in connection with that employment is “a clear breach of the Constitution and various international treaties” is not at all clear to me. What is clear is that the definitions of environmental information held by and for a public authority clearly envisage that information produced or received by a public authority or held by a natural person on its behalf is within the scope of the AIE Regulations which themselves enforce an international treaty to which Ireland is a signatory. If information produced or received by employees in connection with their employment or held by an employee on behalf of their employer could be considered outside the scope of the AIE Regulations this would render many of the obligations contained in the Regulations obsolete since public authorities can only act through individuals engaged by them to do so. To the extent this argument relates to press freedom, it has been dealt with above. The suggestion that release of such information would amount to a breach of the Constitution or any international treaty, in circumstances where the content of that information is as of yet not entirely known, is a “purely hypothetical” argument of the type rejected by the CJEU in Land Baden-Württemberg and ignores the fact that there are a number of basis for refusal available in situations where the interest in refusal of information, or part thereof, outweighs the public interest in its release.
91. I therefore do not consider that RTÉ has demonstrated that article 9(2)(a) of the Regulations provides it with grounds for refusal of the appellant’s request.
##Decision
92. Having carried out a review under article 12(5) of the AIE Regulations, I annul RTÉ’s decision and find that it is a “public authority” within the meaning of the AIE Regulations and Directive, the information requested is “environmental information” and it is not open to RTÉ to rely on the grounds for refusal contained at article 9(2)(a) of the Directive in the manner that it did in this case. I therefore direct RTÉ to process the appellant’s request in accordance with its obligations under the AIE Regulations. In doing so, it is open to RTE to engage directly with the appellant to understand the precise scope of the request and to see if an analysis of the contents of the two formal feedback email accounts would be sufficient.
93. For the avoidance of doubt, I note that the information already released by RTÉ has been redacted. RTÉ’s position is that this has been done in order to comply with GDPR requirements to protect the privacy rights of those who contacted it. As all of the information within the scope of the appellant’s request has yet to be identified, I do not consider it appropriate for me to make a definitive finding on such refusal. I do note, however, that this statement alone is not a sufficient basis for refusal under the AIE Regulations and if RTÉ does not provide the appellant with the totality of the information requested by him, such refusal must be justified having regard to the provisions of the AIE Regulations meaning a basis for refusal contained in those Regulations must be established and the balancing exercise mandated by articles 10(3) and 10(4) must be carried out.
##Appeal to the High Court
94. 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