Right to Know group take High Court action over access to cabinet papers on climate change

A High Court judge has been asked to overturn a refusal to provide access to documents concerning Cabinet discussions on climate change.

The legal challenge has been brought by Right To Know CLG, a group campaigning for greater transparency of decisions made by public authorities.

It disputes the entitlement of the Department of the Taoiseach to refuse to provide documents sought by it under regulations concerning access to environmental information, the AIE Regulations.

Solicitors for the group asked the Department under the AIE Regulations for access to all documents which show Cabinet discussions related to Ireland’s greenhouse gas emissions from 2002 to 2016.

In May 2016, the Department issued a decision listing 31 relevant documents but refusing access to all on grounds of cabinet confidentiality and on foot of a 2010 High Court judgement concerning access to environmental information.

The group sought an internal review of the refusal and, after that review upheld the refusal, sought judicial review.

The hearing opened today before Ms Justice Mary Faherty.

The case concerns the interpretation of a European Directive on access to environmental information. Another core issue relates to the jurisdiction of administrative bodies to disapply national law when there is a conflicting EU law.

The group maintains the Cabinet confidentiality provision in Article 28.4.3 of the Constitution and certain parts of the 2010 High Court judgement relied on in the refusal are incompatible with EU law and could not be applied during the review. 

It wants orders quashing the review decision which, it claims, did not contain any or any adequate reasons but merely stated the conclusions of the review.

It also claims the Minister for the Environment, when transposing the AIE Directive, wrongly excluded an entire class of documents - records of Cabinet discussions - from the scope of the right of access and was not entitled to narrow the scope of the broad right of access to information on emissions into the environment.

Noel Travers SC, for the group, argued, when there is a conflict between directly effective EU law and national law, EU law takes precedence.

A national decision-maker, including an administrative decision-maker, must disapply national law which conflicts with EU law irrespective of the source of the national law, he submitted.

This mean the group’s request should have been first considered as a matter of EU law but that was not done.

The refusal of access clashes with the European law objective of providing the “widest possible” public access to environmental information and policies, he said. No consideration was accorded to that objective by the respondents, he added.

While member states “may” establish exceptions to the broad right of access to environmental information, and may refuse access in certain circumstances, the AIE Directive provides they “shall” take into account the public interest served by disclosure when creating any such exceptions and must interpret any exceptions to access in a restricted way, he argued.

There is no reference in the review decision to any consideration of the public interest served by disclosure, he said.

There must be a balancing exercise but there was no evidence that was carried out.

If the court had any doubt concerning the effect of the European law provisions, it should refer issues to the European Court of Justice for preliminary determination, he urged.

The group ultimately intends to take the case to Europe and a preliminary reference would save costs and court time, he added.

The hearing continues tomorrow

Reporting- Ann O’Loughlin


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