High Court refers question on EU environmental information regulations compatibility to CJEU.

[2023] IEHC 640

THE HIGH COURT

[HC.MCA.2022.0000278]

IN THE MATTER OF ORDER 84C OF THE RULES OF THE SUPERIOR COURTS AND

REGULATION 13 OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE

ENVIRONMENT) REGULATIONS 2007-2018

BETWEEN

COILLTE CUIDEACHTA GHNÍOMHAÍOCHTA AINMNITHE

APPELLANT

AND

COMMISSIONER FOR ENVIRONMENTAL INFORMATION

RESPONDENT

AND

PERSON(S) UNKNOWN AKA JOHN AND/OR JANE DOE

NOTICE PARTIES

JUDGMENT of Humphreys J. delivered on Wednesday the 22nd day of November, 2023

1. It is not every day that litigation features cameo appearances by Willy Wonka, Mel Gibson,

Russell Crowe, Charlton Heston, Ed Harris, Gene Hackman, Neil Diamond, Mickey Rourke and Nick

Nolte.

2. But by a strange coincidence, Coillte has been bombarded with requests for environmental

information in the names of characters played by the latter individuals (leaving Mr Wonka briefly

aside), and other apparently pseudonymous names. With the skills of a forensic psychiatrist trying

to build a profile of a suspect, and without even the benefit of a Norwich Pharmacal [1974] A.C. 133

order, Coillte have pretty much identified the person (more likely than not to be singular, one could

reasonably infer without being certain about it) at the centre of this exercise as someone interested

in Americana and, more specifically, deeply versed in American cinema, particularly of the 1980s

and later. One can also add that this person is obviously equally versed in the Irish legislative

scheme regarding access to information on the environment (and while his motive is legally

irrelevant, maybe I can say in passing that the possibility did cross my mind that rather than merely

having a specific grudge against Coillte and its parent Department, he might (also) have been

engaging in legal activism by hoping to stir up a dispute of the present kind with a view to

establishing a right to make an anonymous request). He might also be proficient in computer

programming, seeing that (writing as Mr Wonka, Ms Hazel Wood and other names) he would appear

to have also generated over 30,000 requests against the Department of Agriculture, Food and the

Marine, which would be hard to do other than in an automated manner. All of that probably narrows

it down quite a bit. One might have to beg forgiveness for wondering whether, if this case was a

filmscript for one of the movies of such interest to the requester, or perhaps the televised version,

it would be at this point that Colleen Rooney would enter the story to join the pieces in a way that

had stumped the professionals.

3. Whoever he is, Coillte’s correspondent generated a very large number of probably

anonymised or pseudonymised requests in identical or near identical format between 13th March

and 30th May, 2022 seeking access to information on the environment. No physical addresses were

provided.

4. Ms Deirdre Coleman of Coillte, in response to Ms McGoldrick for the Commissioner, avers as

follows:

“4. I say that in my Grounding Affidavit I referred at §7 to the Appellant receiving a

‘very large number of anonymised / pseudonymised requests’ and identified the number as

58 of those requests as being covered by these proceedings. Ms McGoldrick correctly refers

to the Commissioner receiving 58 appeals. However, for the purpose of updating this

Honourable Court and in the interests of clarity, over the relevant period the Appellant

received 97 anonymised / pseudonymised AIE requests in total, of which 81 were appealed

to the Respondent. The OCEI decided to batch the first 58 cases received, with a further 23

cases remaining to be decided upon.

5. I say that at §8 of Ms McGoldrick’s Affidavit she states it doesn’t appear to her that

the names of the requesters are those of fictional characters or celebrities. I say not all of

the pseudonyms can be traced but insofar as they can I beg to refer to Table 1 below where

the Appellant has set out its views on the possible inspiration for the various pseudonyms

used.

Requester Notes

Dermot James Irish historical author - 'The Gore Booths of

Lissadell' 'John Hamilton of Donegal: 1880

-1884 This Recklessly Generous Landlord'

Russell Price Character called 'Russell Price' in Under Fire

(1983) played by Nick Nolte

Alex Grazier Character called 'Alex Grazier' in Under Fire

(1983) played by Gene Hackman

Ed Oates Character called 'Oates' in Under Fire

(1983) played by Ed Harris

Jack Callaghan Character called 'Jack Callaghan' in While

You Were Sleeping (1995) played by Bill

Pullman

Tom Farrell American actor appearing in movies such as

The Screaming Manor Tommy Farrell, actor

in dozens of westerns from the 1940s to the

1980s

Charles Horman American journalist and documentary

filmmaker who was executed in Chile in

1973 - movie made about his story called

'Missing' in 1982

Tom Cody Character called 'Tom Cody' in Streets of

Fire (1984) played by Michael Pare

Matt Garth Character called 'Captain Matt Garth' in

Midway (1976) played by Charlton Heston

Stanley White Character called 'Captain Stanley White' in

Year of the Dragon (1985) played by Mickey

Rourke

Frank Dunne Character called 'Frank White' in Gallipoli

(1981) played by Mel Gibson

Ben Wade Character called 'Ben Wade' in 3.10 to Yuma

(2007) played by Russell Crowe and movie

of same name in 1957 played by Glenn Ford

Frank Ridgeway Character called 'Frank Ridgeway' in Eddie

and the Cruisers (1983) played by Tom

Berenger

Eddie Wilson Character called 'Eddie Wilson' in Eddie and

the Cruisers (1983) played by Michael Pare

Jess Robin Character called 'Jess Robin' in The Jazz

Singer (1980) played by Neil Diamond

Jason Sweet American actor of the same name

6. I say that at §12 of Ms McGoldrick’s Affidavit she states that she is not aware of any

instance where a public authority has sought confirmation of the identity of a requester. I

understand that this was in fact done in the case of Wind Noise Info and Wexford County

Council CEI/14/0017. However, more to the point, Ms McGoldrick appears to be unaware of

the difficulties which public bodies experience in processing vast numbers of anonymous

requests. Earlier requests from requesters using some of the names used by the requesters

in these proceedings had been processed in the normal way by the Appellant because, at

that juncture, they appeared to be typical or one-off requests. It is only when the significant

numbers of anonymous / pseudonymous requests of similar style, type and phraseology and

approach began to be received by the Appellant from 10 March 2022 onwards that this issue

became apparent. It was at that point that the Appellant became aware of what appears to

be an organised campaign and took steps to verify the identity of requesters.

7. At §14 of Ms McGoldrick’s Affidavit she refers to the Appellant having 4 weeks to

process the requests and a further 4 weeks if required. However, the reality is that the

Appellant had no prospect of being able to process this unprecedented number of requests

in the permissible time period, in addition to processing the ‘genuine’ requests. Between 10

March 2022 and 7 June 2022, the Appellant received 130 verified and anonymised /

pseudonymised requests. This equates to just over 2 voluminous AIE requests received per

working day during March to May 2022 (62 working days) with a further 1 received in June

2022. Since 7 June 2022 the Appellant has received no new anonymised / pseudonymised

requests. I say that this fortifies the Appellant in its view that these requests all originate

from a single source and / or form part of a co-ordinated campaign as they all abruptly

ceased at the same time. I say the unprecedented number of requests can be seen by

reference to the table below:

Coillte AIE statistics 2018-2022

2018 2019 2020 2021 2022

Total AIEs 11 11 22 73 663

Internal Reviews 0 2 7 12 207

OCEI 0 2 3 4 123

8. I say that the impacts on the Appellant’s operations from what appears to be a

concerted and co-ordinated campaign is serious. In addition to significant expenditure of

management time and resources, I say that the Appellant has increased the AIE Team from

0.5 staff FTE (full-time equivalent) to 3.5 staff FTE. By way of example, I beg to refer to a

spreadsheet where all 58 requests the subject matter of these proceedings are listed along

with the estimated time for them to be addressed. The total estimated time to deal with

these requests is 152 days, although in practice dealing with the requests tends to take

longer than the estimate. I beg to refer to a spreadsheet that I have initialled with the letters

DC1 prior to the swearing hereof which lists the requests the subject matter of these

proceedings, gives a summary of the actions required to answer each one and an estimate

of the likely time.

9. I say that the Appellant is committed to the dissemination of environmental

information pursuant to AIE Regulations. However, it appears to it that the requests the

subject matter of these proceedings are not designed to elicit environmental information and

appear to be a part of a wider campaign engaged in by persons unknown for questionable

motives. I say that the campaign has very significant implications for the Appellant’s

operations and has the unfortunate side effect of diverting scarce time and resources away

from genuine requests for environmental information with attendant delays and frustration

for genuine members of the public or NGOs looking to utilise the machinery provided by the

AIE Regulations in order to access information on the environment.”

5. Generally, Coillte replied to these requests by seeking a (current) address from the

applicants, and confirmation that the names were the applicants’ actual (legal) names.

6. None of this information was provided. Accordingly, Coillte regarded each of the requests as

incomplete and invalid, none of the purported requesters received the information sought within the

one-month timeframe set out in domestic law.

7. In total Coillte received 97 apparently anonymised / pseudonymised AIE requests, all of

which were rejected as invalid.

8. The requesters then issued a request to Coillte to carry out an internal review. Again Coillte

sought contact details and asked the requesters to “confirm that the name given by you in your

application is your actual legal name” or to “provide [Coillte] with your actual name” and to “state

your current address”. Coillte advised the requesters that it was not asking them to state why they

were making the request but was “simply asking...for confirmation of your name and address” and

that “unless and until [Coillte] receive[d] the information sought above, your request will not be

processed”. These requests were again ignored so the applications for internal reviews were in effect

rejected as invalid.

9. Of the various rejections, 81 were appealed to the Commissioner between 13th June and

4th July 2022. The Commissioner addressed on the first 58 cases received en bloc, with a further

23 cases remaining to be decided upon.

10. The Commissioner sought further submissions in relation to the appeals from both Coillte

and the requesters. Coillte made a submission on 29th July, 2022 on foot of a number of questions

posed by the Commissioner but, despite a request to that effect, was not provided with sight of the

submissions made by the requesters. That is not a ground of appeal as such in the present case.

11. The outcome was an omnibus decision on 29th August. 2022 which is identified by the

Commissioner as “Case Number OCE-124853-T4T4P0, [PLUS 57 OTHER CASES]”. The

Commissioner decided that he did have jurisdiction to consider the appeal and that Coillte was not

justified in treating the request(s) as invalid under article 6(1)(c) of the AIE Regulations.

12. The Commissioner thought that Coillte was “slightly evasive” (para. 48), although I don’t

think that this comment was entirely warranted in the circumstances. The decision went on to hold

(at para. 49):

“Coillte was asked by my Investigator what exactly it was seeking from appellants by way

of ‘confirmation’ of the appellants’ names and addresses. It did not provide any further

clarity in response to that request. It is clear however from its communications with the

appellants that it was not satisfied that the names provided by them were their real names.

None of the appellants appear to have confirmed that the name used in their request was

their real name and instead maintain that they are not required to provide such confirmation.

It is questionable whether, had they done so, Coillte would have been satisfied with a simple

written confirmation or whether, as appears a plausible and logical next step, if it remained

unsatisfied, it might have then sought proof of identity from an appellant. A requirement to

provide such proof would make the procedure for making an AIE request more onerous and

may dissuade potential requesters. Even a requirement to provide a legal name and address

without any proof of identity or address may be enough to dissuade potential applicants.

While Coillte have stated on a number of occasions that it is not requiring the appellants to

‘indicate why they are making the request, what connection (if any) they have with the

information requested or seeking any other information concerning their interest (if any) in

making the requests concerned’, in many cases, the inclusion of the requester’s legal name

and address as part of the request might reveal their interest in making the request. For

example, an individual who had previously made objections to a public authority in relation

to a project with environmental impact might reveal their interest in environmental

information by including their name as part of a request. The same is true of an individual

who is required to provide their address in order to obtain information on a measure or

activity in their locality with environmental impact. The same can also be said where the

information is being sought by an organisation with particular environmental objectives. In

those cases, requiring the applicant to identify themselves could amount to a requirement

to state an interest, contrary to the express provisions of article 3(1) and Recital 8 of the

Directive.”

13. Ms Coleman records that since 7th June, 2022 Coillte has received no new anonymised/

pseudonymised requests. She says that “this fortifies [Coillte] in its view that these requests all

originate from a single source and /or form part of a co-ordinated campaign as they all abruptly

ceased at the same time.”

14. Ms Joanna Adams of the Department of Agriculture, Food and the Marine (DAFM) avers as

follows:

“4. I say DAFM shares the Appellant’s concerns at the unusually large number of

requests being made in the recent past under the AIE Regulations. I swear this Affidavit for

the purposes of demonstrating that the issues raised by the Appellant are issues of general

application and to demonstrate why the proliferation of anonymous / pseudonymous

requests for environmental information is an issue of operational concern to the DAFM.

5. I say that DAFM received an annual average of about 167 requests for access to

information on the environment in the 3-year period 2019 to 2021 inclusive ranging from

69 in 2019 to 290 in 2021. Typically, 50-70% of these requests related to forestry matters.

During that 3-year period there was a total of 23 referrals to the Office of the Commissioner

of Environmental Information (‘OCEI’) of which 18 related to forestry matters.

6. I say that the number of AIE requests increased to 32,297 in 2022 of which 30,630

related to forestry matters. Some 105 of the latter were referred to the OCEI. ...

7. I say that this recent level of enquiry is absolutely unprecedented in my experience.

Almost all of the 2022 AIE requests received were anonymised / pseudonymised and were

in a format that would lead one to believe that there was commonality in the authorship of

the requests. Many of the requests were made in the names of motion picture characters

(similar to the experience of the Appellant) and of Willy Wonka and Hazel Wood.

8. I say that I have been shown the list of 18 anonymous / pseudonymous requesters

who submitted the requests the subject matter of the Appellant’s proceedings. I say that

the DAFM has received requests from all 18 requesters (in each case using the same email

address as that used by that person / person in their requests to the Appellant) that suggests

that there is a degree of co-ordination as between the requests being received by the

Appellant and those being received by the DAFM. I say that in 2022, we received

approximately 465 requests from persons using the names used by the requesters in these

proceedings. No requests were received by any of the mentioned names prior to 2022.

9. I say that the DAFM has no way of knowing if these requests are being submitted

by one or more persons as, as in these proceedings, they have refused to provide any

identifying information. I say that a definite trend has emerged whereby DAFM will receive

numerous requests from one of these names for a period of time which will then be replaced

by a new name but asking for very similar information.

10. I say that anonymous AIE requests and / or the use of pseudonyms by requesters

is a source of concern for DAFM as our experience has shown that anonymity can be utilised

by some requesters to intentionally abuse the AIE process to taunt DAFM staff and cause

operational disruption. This is apparent from an AIE request received from a requester calling

themselves ‘Willy Wonka’. I say that ‘Willy Wonka’ made 745 individual requests between

29 September 2022 and 4 October 2022 - a period that covers 4 working days. These

requests were made by email only and contained abusive and disparaging remarks about

DAFM staff members. I say that, as DAFM was considering his requests ‘Willy Wonka’

withdrew them on 12 October 2022 offering the observation ‘Boo Hoo’, only to resubmit

them again on 17 October 2022 with all the attendant administration implications for the

DAFM. I say that it became clear at this point that this requester had little or no legitimate

interest in the information they were purporting to seek and instead appeared to be more

interested in using the AIE process to undermine DAFM operations and frustrate hard

working DAFM staff. In the circumstances, DAFM reasoned that it had no choice but to refuse

to commit any further time and resources into processing those particular AIE requests at

least until such time as the requester properly identified themselves in accordance with the

requirements of Article 6(1)(c) of the AIE Regulations. On that basis, DAFM replied to the

Willy Wonka email address and refused the AIE request on the basis that it was not validly

made in accordance with Article 6(1)(c) of the AIE Regulations. The written decision included

information on how to appeal that decision to the OCEI but to date no appeal has been

lodged.

11. I say that ‘Willy Wonka’ stated in his emails that he would be sending in 30,000

requests shortly. After DAFM had refused his requests under Article 6(1)(c) of the AIE

Regulations, an individual who provided a name and address sent in 29,640 individual

requests.

12. I say that ‘Willy Wonka’ identifies some of the 18 anonymous requesters by name

(i.e. P Corran, R Price, D James, A Grazier, J Callaghan) and request number which

information ‘Willy Wonka’ should have no way of knowing unless the requests originate from

the same person and / or the requests are being co-ordinated. I beg to refer to a selection

of the correspondence received from ‘Willy Wonka’ upon which I have marked with the

initials JA prior to the swearing hereof.

13. I say that the vastly increased number of AIE requests has had a very significant

effect on the operations of the DAFM. DAFM has had to create a dedicated AIE unit in the

Forestry division to cope with the demands in the increases in requests being received in

2022. There are now 9 staff working full-time on AIE requests. The effect of the requests

across the division affects all staff members (admin, inspectors, ecologists, Ministers office),

who have to give responses / emails / data etc that is requested and the ripple effect from

these anonymised / pseudonymous requests on the operations of the DAFM are significant

with real life knock on implications for Forestry licencing, significant expenditure of tax-

payers money and pressure in reverting to genuine requests for information which comply

with the requirements of the AIE Regulations.

14. I say that the AIE Directive and AIE Regulations place an obligation on public

authorities to process reasonable AIE requests within a period of one month or two months

at the very latest. I say that anonymised AIE requests allow individual requesters to submit

several large and complex AIE requests at the same time under different names thereby

concealing the manifestly unreasonable nature of their AIE request. Such conduct has the

potential to seriously undermine the efficiency and effectiveness of the AIE system at the

expense of the public interest and legitimate users of the system.

15. I say that the DAFM is very concerned in relation to the proliferation of anonymous

requests and / or the use of pseudonyms by requesters for access to information and that

are even more concerned that the same person or persons appear to be making these

requests to the Appellant and the DAFM. I say that the consequences are severe and have

adverse environmental implications as they significantly frustrate, in particular, the Forestry

and licencing operations of the DAFM.”

Procedural history

15. The matter comes before the court as an appeal on a point of law under art. 13(1) of the

2007 regulations and by originating notice of motion in accordance with Order 84C r. 2(1) RSC.

16. The proceedings were initiated on 27th October, 2022.

17. While not naming the various aliases in the title, the motion was served on the following as

reflected in the addressees of the motion:

“To:

The Notice Parties:

Person(s) Unknown AKA John and/or Jane Doe

Alex Grazier agrazier36@gmail.com

Ben Wade benbwade0@gmail.com

Charles Horman charleshorman2@gmail.com

Dermot James dermotjames385@gmail.com

Ed Oates oatesed2@gmail.com

Eddie Wilson eddie4wilson@gmail.com

Frank Dunne dunnefrank34@gmail.com

Frank Ridgeway frankridge05@gmail.com

Jack Callaghan jackc5883@gmail.com

James Austin jimaustin710@gmail.com

Jason Sweet jasonsweet617@gmail.com

Jess Robin robinjess333@gmail.com

Liam O'Hara liamohara373@gmail.com

Matt Garth garthmatt638@gmail.com

Mel Mooney mooneymel9@gmail.com

Patrick Corran pcorran36@gmail.com

Russell Price russprice111@gmail.com

Stanley White stanwhite101010@gmail.com

Tom Cody tom8cody@gmail.com

Tom Farrell tomfarrell456@gmail.com”

18. This is possibly not a completely irrelevant detail. It doesn’t seem hugely likely that so many

emails of different and independent requesters would be in a quite similar format [some variation of

alleged first and second names] + [a number] + [@gmail.com]. The inference again is that it is

somewhat more likely than not that the whole exercise is the work of the same person (or people

co-ordinating with each other, but Occam’s razor applies to that alternative scenario).

19. On the day of commencement of Practice Direction HC119, 17th April, 2023, the case was

administratively transferred to the Commercial Planning and Environmental List, and was sent to

the List to Fix Dates. A hearing date of 14th November, 2023 was fixed, and the matter was heard

on that date when judgment was reserved.

Relief sought

20. The relief sought in the originating notice of motion is as follows:

“1. An Order pursuant to Article 13 of the European Communities (Access to Information

on the Environment) Regulations 2007 to 2018 and Order 84C of the Rules of the Superior

Courts setting aside the decision of the Commissioner for Environmental Information made

on 29 August 2022 in relation to Case Number OCE-124853-T4T4P0, PLUS 57 OTHER CASES.

2. A Declaration that the Commissioner for Environmental Information erred in fact

and/or in law in accepting and considering the purported appeals the subject matter of that

decision and/or that he had no jurisdiction to do so pursuant to Article 12(3) of the

European Communities (Access to Information on the Environment) Regulations 2007 to

2018.

3. A Declaration that the Commissioner for Environmental Information erred in law in

his construction of Article 6(1) of the European Communities (Access to Information on the

Environment) Regulations 2007 to 2018 and/or that Coillte was entitled to require that

persons seeking to make requests thereunder provide a name and/or confirmation thereof

and/or address for the purposes of satisfying the requirements of Article 6(1) of the

Regulations as a necessary and lawful requirement for the making of a valid request.

4. Such further and other Orders as this Honourable Court deems meet.

5. A Declaration that Sections 3 and 4 of the Environment (Miscellaneous Provisions)

Act 2011, and/or that the interpretative obligation set out in Case C-470/16 North East Pylon

Pressure Campaign Limited v. An Bord Pleanála under which, in proceedings where the

application of national environmental law is at issue, it is for the national court to give an

interpretation of national procedural law which, to the fullest extent possible, is consistent

with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention, apply to these

proceedings.

6. Costs”

Relevant legal provisions

21. There are three related legal instruments of relevance to deciding this issue:

(i) the Aarhus Convention;

(ii) the AIE directive; and

(iii) the AIE regulations.

22. I will address these in turn.

Aarhus Convention

23. Article 2(4) of the Convention on Access to Information, Public Participation in Decision-

Making and Access to Justice in Environmental Matters done at Aarhus on 25 June 1998 defines “the

public” as follows:

“4. ‘The public’ means one or more natural or legal persons, and, in accordance with national

legislation or practice, their associations, organisations or groups;”

24. Article 4(1) to (3) of the Aarhus Convention provide:

“Article 4

Access to environmental information

1. Each Party shall ensure that, subject to the following paragraphs of this Article, public

authorities, in response to a request for environmental information, make such information

available to the public, within the framework of national legislation, including, where

requested and subject to subparagraph (b) below, copies of the actual documentation

containing or comprising such information:

(a) without an interest having to be stated;

(b) in the form requested unless:

(i) it is reasonable for the public authority to make it available in another form, in which case

reasons shall be given for making it available in that form; or

(ii) the information is already publicly available in another form.

2. The environmental information referred to in paragraph 1 above shall be made available

as soon as possible and at the latest within one month after the request has been submitted,

unless the volume and the complexity of the information justify an extension of this period

up to two months after the request. The applicant shall be informed of any extension and of

the reasons justifying it.

3. A request for environmental information may be refused if:

(a) the public authority to which the request is addressed does not hold the environmental

information requested;

(b) the request is manifestly unreasonable or formulated in too general a manner; or

(c) the request concerns material in the course of completion or concerns internal

communications of public authorities where such an exemption is provided for in national

law or customary practice, taking into account the public interest served by disclosure.”

25. Article 9(1) of the Aarhus Convention provides:

“Article 9

Access to justice

1. Each Party shall, within the framework of its national legislation, ensure that any person

who considers that his or her request for information under Article 4 has been ignored,

wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt

with in accordance with the provisions of that article, has access to a review procedure

before a court of law or another independent and impartial body established by law.

In the circumstances where a Party provides for such a review by a court of law, it shall

ensure that such a person also has access to an expeditious procedure established by law

that is free of charge or inexpensive for reconsideration by a public authority or review by

an independent and impartial body other than a court of law.

Final decisions under this paragraph 1 shall be binding on the public authority holding the

information. Reasons shall be stated in writing, at least where access to information is

refused under this paragraph.”

The AIE Directive

26. Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on

public access to environmental information and repealing Council Directive 90/313/EEC provides a

mechanism in EU law for requesting environmental information.

27. The AIE directive defines relevant terms at Article 2:

“Article 2

Definitions

For the purposes of this Directive:

1. ‘Environmental information’ shall mean 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 referred to in (a);

(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 (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 (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 (a) or,

through those elements, by any of the matters referred to in (b) and (c).

2. ‘Public authority’ shall mean:

(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 (a)

or (b).

Member States may provide that this definition shall not include bodies or institutions when

acting in a judicial or legislative capacity. If their constitutional provisions at the date of

adoption of this Directive make no provision for a review procedure within the meaning of

Article 6, Member States may exclude those bodies or institutions from that definition.

3. ‘Information held by a public authority’ shall mean environmental information in its

possession which has been produced or received by that authority.

4. ‘Information held for a public authority’ shall mean environmental information which is

physically held by a natural or legal person on behalf of a public authority.

5. ‘Applicant’ shall mean any natural or legal person requesting environmental information.

6. ‘Public’ shall mean one or more natural or legal persons, and, in accordance with national

legislation or practice, their associations, organisations or groups.”

28. Article 3 provides the procedure for seeking information:

“Article 3

Access to environmental information upon request

1. Member States shall ensure that public authorities are required, in accordance with the

provisions of this Directive, to make available environmental information held by or for them

to any applicant at his request and without his having to state an interest.

2. Subject to Article 4 and having regard to any timescale specified by the applicant,

environmental information shall be made available to an applicant:

(a) as soon as possible or, at the latest, within one month after the receipt by the public

authority referred to in paragraph 1 of the applicant's request; or

(b) within two months after the receipt of the request by the public authority if the volume

and the complexity of the information is such that the one-month period referred to in (a)

cannot be complied with. In such cases, the applicant shall be informed as soon as possible,

and in any case before the end of that one-month period, of any such extension and of the

reasons for it.

3. If a request is formulated in too general a manner, the public authority shall as soon as

possible, and at the latest within the timeframe laid down in paragraph 2(a), ask the

applicant to specify the request and shall assist the applicant in doing so, e.g. by providing

information on the use of the public registers referred to in paragraph 5(c). The public

authorities may, where they deem it appropriate, refuse the request under Article 4(1)(c).

4. Where an applicant requests a public authority to make environmental information

available in a specific form or format (including in the form of copies), the public authority

shall make it so available unless:

(a) it is already publicly available in another form or format, in particular under Article 7,

which is easily accessible by applicants; or

(b) it is reasonable for the public authority to make it available in another form or format,

in which case reasons shall be given for making it available in that form or format.

For the purposes of this paragraph, public authorities shall make all reasonable efforts to

maintain environmental information held by or for them in forms or formats that are readily

reproducible and accessible by computer telecommunications or by other electronic means.

The reasons for a refusal to make information available, in full or in part, in the form or

format requested shall be provided to the applicant within the time limit referred to in

paragraph 2(a).

5. For the purposes of this Article, Member States shall ensure that:

(a) officials are required to support the public in seeking access to information;

(b) lists of public authorities are publicly accessible; and

(c) the practical arrangements are defined for ensuring that the right of access to

environmental information can be effectively exercised, such as:

- the designation of information officers;

- the establishment and maintenance of facilities for the examination of the information

required,

- registers or lists of the environmental information held by public authorities or information

points, with clear indications of where such information can be found.

Member States shall ensure that public authorities inform the public adequately of the rights

they enjoy as a result of this Directive and to an appropriate extent provide information,

guidance and advice to this end.”

29. Article 4 provides for exceptions. Sub-paragraph (1) is particularly relevant:

“Article 4

Exceptions

1. Member States may provide for a request for environmental information to be refused if:

(a) the information requested is not held by or for the public authority to which the request

is addressed. In such a case, where that public authority is aware that the information is

held by or for another public authority, it shall, as soon as possible, transfer the request to

that other authority and inform the applicant accordingly or inform the applicant of the public

authority to which it believes it is possible to apply for the information requested;

(b) the request is manifestly unreasonable;

(c) the request is formulated in too general a manner, taking into account Article 3(3);

(d) the request concerns material in the course of completion or unfinished documents or

data;

(e) the request concerns internal communications, taking into account the public interest

served by disclosure.

Where a request is refused on the basis that it concerns material in the course of completion,

the public authority shall state the name of the authority preparing the material and the

estimated time needed for completion.”

30. Article 6 provides for access to justice to review decisions of public authorities:

“Article 6

Access to justice

1. Member States shall ensure that any applicant who considers that his request for

information has been ignored, wrongfully refused (whether in full or in part), inadequately

answered or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5,

has access to a procedure in which the acts or omissions of the public authority concerned

can be reconsidered by that or another public authority or reviewed administratively by an

independent and impartial body established by law. Any such procedure shall be expeditious

and either free of charge or inexpensive.

2. In addition to the review procedure referred to in paragraph 1, Member States shall ensure

that an applicant has access to a review procedure before a court of law or another

independent and impartial body established by law, in which the acts or omissions of the

public authority concerned can be reviewed and whose decisions may become final. Member

States may furthermore provide that third parties incriminated by the disclosure of

information may also have access to legal recourse.

3. Final decisions under paragraph 2 shall be binding on the public authority holding the

information. Reasons shall be stated in writing, at least where access to information is

refused under this Article.”

The AIE regulations

31. The transposing legislation, the European Communities (Access to Information on the

Environment) Regulations 2007 to 2018 are consolidated at https://www.ocei.ie/legislation-and-

resources/legislation/AIE-Regs-2007-2018-Unofficial-Consolidation.pdf

32. Article 6 allows the making of a request for information on the environment:

“Request for environmental information

6. (1) A request for environmental information shall—

(a) be made in writing or electronic form,

(b) state that the request is made under these Regulations,

(c) state the name, address and any other relevant contact details of the applicant,

(d) state, in terms that are as specific as possible, the environmental information that is the

subject of the request, and

(e) if the applicant desires access to environmental information in a particular form or

manner, specify the form or manner of access desired.

(2) An applicant shall not be required to state his or her interest in making the request.”

33. Article 7 provides for the mechanics of making an appeal:

“Action on request

7. (1) A public authority shall, notwithstanding any other statutory provision and subject

only to these Regulations, make available to the applicant any environmental information,

the subject of the request, held by, or for, the public authority.

(2) (a) A public authority shall make a decision on a request and, where appropriate, make

the information available to the applicant as soon as possible and, at the latest, but subject

to paragraph (b) and subarticle (10), not later than one month from the date on which such

request is received by the public authority concerned.

(b) Where a public authority is unable, because of the volume or complexity of the

environmental information requested, to make a decision within one month from the date

on which such request is received, it shall, as soon as possible and at the latest, before the

expiry of that month—

(i) give notice in writing to the applicant of the reasons why it is not possible to do so, and

(ii) specify the date, not later than 2 months from the date on which the request was

received, by which the response shall be made, and make a decision on the request and,

where appropriate, make the information available to the applicant by the specified date.

(3) (a) Where a request has been made to a public authority for access to environmental

information in a particular form or manner, access shall be given in that form or manner

unless—

(i) the information is already available to the public in another form or manner that is easily

accessible, or

(ii) access in another form or manner would be reasonable.

(b) Where a public authority decides to make available environmental information other than

in the form or manner specified in the request, the reason therefore shall be given by the

public authority in writing.

(4) Where a decision is made to refuse, in whole or in part, a request for environmental

information, the public authority concerned shall—

(a) subject to paragraph (b), notify the applicant of the decision not later than one month

following receipt of the request,

(b) in a case to which sub-article (2)(b) applies, notify the applicant as soon as possible but

not later than 2 months following receipt of the request,

(c) specify the reasons for the refusal,

(d) inform the applicant of his or her rights of internal review and appeal in accordance with

these Regulations, including the time within which such rights may be exercised.

(5) Where a request is made to a public authority and the information requested is not held

by or for the authority concerned, that authority shall inform the applicant as soon as

possible that the information is not held by or for it.

(6) Where sub-article (5) applies and the public authority concerned is aware that the

information requested is held by another public authority, it shall as soon as possible—

(a) transfer the request to the other public authority and inform the applicant accordingly,

or

(b) inform the applicant of the public authority to whom it believes the request should be

directed.

(7) Where a request is made to a public authority which could reasonably be regarded as a

request for environmental information but which is not a request that has been made in

accordance with—

(a) article 6(1), or

(b) the Freedom of Information Acts 1997 and 2003,

the public authority concerned shall inform the applicant of his or her right of access to

environmental information and the procedure by which that right can be exercised, and shall

offer assistance to the applicant in this regard. (8) Where a request is made by the applicant

in too general a manner, the public authority shall, as soon as possible and at the latest

within one month of receipt of the request, invite the applicant to make a more specific

request and offer assistance to the applicant in the preparation of such a request.

(9) Where, in a request for information on factors affecting or likely to affect the

environment, the applicant specifies that he or she requires information on the measurement

procedures, including methods of analysis, sampling and pretreatment of samples, used in

compiling that information, the public authority shall, as Article 8(2) of the Directive requires,

either make the information available to the applicant or refer the applicant to the

standardised procedures.

(10) A public authority shall, in the performance of its functions under this article, have

regard to any timescale specified by the applicant.

(11) Where a request is made for information which has been provided to the public authority

on a voluntary basis by a third party and, in the opinion of the public authority, release of

the information may adversely affect the third party, the public authority shall take all

reasonable efforts to contact the third party concerned to seek consent or otherwise to

release the information, pursuant to article 8(a)(ii) and article 10.”

34. Hence, where no decision is made on a request within the statutory time limit, the request

is in principle deemed to be refused: for examples see Friends of the Irish Environment v.

Commissioner for Environmental Information [2019] IEHC 597, [2019] 5 JIC 2108 (O’Regan J.);

Right to Know CLG v. Commissioner for Environmental Information [2022] IESC 19, [2023] 1

I.L.R.M. 122, [2022] 4 JIC 2902 (Baker J.).

35. Article 11 provides for internal review. The terms of engagement on which such review can

happen are as follows:

“11. (1) Where the applicant’s request has been refused under article 7, in whole or in part,

the applicant may, not later than one month following receipt of the decision of the public

authority concerned, request the public authority to review the decision, in whole or in part.

(2) Following receipt of a request for a review under sub-article (1), the public authority

concerned shall designate a person unconnected with the original decision whose rank is the

same as, or higher than, that of the original decision-maker to review the decision and that

person shall—

(a) affirm, vary or annul the decision, and

(b) where appropriate, require the public authority to make available environmental

information to the applicant, in accordance with these Regulations.”

36. Article 12 provides for appeal to the Commissioner. Sub-para. (3) provides for the scope of

jurisdiction:

“(3) Where—

(a) a decision of a public authority has been affirmed, in whole or in part, under article 11,

or

(b) a person other than the applicant, including a third party, would be incriminated by the

disclosure of the environmental information concerned,

the applicant, the person other than the applicant or third party may appeal to the

Commissioner against the decision of the public authority concerned.”

Grounds of challenge

37. Coillte has two principal grounds of appeal which can be summarised as follows:

(i) issue 1 is the contention that the appeal to the Commissioner only arises from a

refusal of an application, not from a rejection of an application in limine as not

constituting a valid application; and

(ii) issue 2 is the contention that the Commissioner was wrong to hold that Coillte was

not entitled to seek information as to the names and addresses of the applicants.

Issue 1 – whether the Commissioner erred in holding that valid appeals had been lodged

38. To determine what the Irish regulations mean we need to first ask what EU law means. That

is consistent with the comments of O’Donnell J. in National Asset Management Agency v.

Commissioner for Environmental Information [2015] IESC 51, [2015] 4 I.R. 626, [2015] 2 I.L.R.M.

165, [2015] 6 JIC 2301 at para. 9.

39. In Right to Know CLG v. An Taoiseach & Ors [2023] IECA 68, [2023] 3 JIC 2401 (Faherty

J.) the Court of Appeal sets out at para. 26 that the public authority refused to process the request

due to lack of clarity as to compliance with the formal requirements for a valid request. That was

not a refusal. The Court of Appeal nonetheless treated such a validity-related approach by the public

authority as being an appealable refusal. If there is to be consideration of a reference to the CJEU,

can a point along these lines be referred notwithstanding the Court of Appeal judgment which already

involves an answer?

40. As I pointed out in Enniskerry Alliance v. An Bord Pleanála (No. 3) [2022] IEHC 337, [2022]

6 JIC 1002 (at para. 70), the freedom of individual national courts and tribunals to have direct

access to the CJEU is a fundamental element of the architecture of European law.

41. Unfortunately, this right has been challenged in modern Europe. The orders made by the

Vice-President of the Court of Justice of the European Union of 27 October, 2021, Commission v.

Poland, C-204/21, ECLI:EU:C:2021:878, and the Order of 21 April 2023 in that case, C‑204/21 R-

RAP, ECLI:EU:C:2023:334, concern an infringement action by the Commission arising from

legislation in Poland which included provisions along the following lines (from para. 2 of C-204/21

R-RAP):

“... Article 42a(1) and (2) and Article 55(4) of the ustawa – Prawo o ustroju sądów

powszechnych (Law relating to the organisation of the ordinary courts) of 27 July 2001 (Dz.

U. of 2001, No 98, item 1070), as amended by the ustawa o zmianie ustawy – Prawo o

ustroju sądów powszechnych, ustawy o Sądzie Najwyższym oraz niektórych innych ustaw

(Law amending the Law relating to the organisation of the ordinary courts, the Law on the

Supreme Court and certain other laws) of 20 December 2019 (Dz. U. of 2020, item 190;

‘the amending law’) (‘the amended Law relating to the ordinary courts’), Article 26(3) and

Article 29(2) and (3) of the ustawa o Sądzie Najwyższym (Law on the Supreme Court) of 8

December 2017 (Dz. U. of 2018, item 5), as amended by the amending law (‘the amended

Law on the Supreme Court’), Article 5(1a) and (1b) of the ustawa – Prawo o ustroju sądów

administracyjnych (Law relating to the organisation of the administrative courts) of 25 July

2002 (Dz. U. of 2002, item 1269), as amended by the amending law (‘the amended Law

relating to the administrative courts’), and Article 8 of the amending law, which prohibit any

national court from reviewing compliance with the EU requirements relating to an

independent and impartial tribunal previously established by law...

... points 2 and 3 of Article 107(1) of the amended Law relating to the ordinary courts and

points 1 to 3 of Article 72(1) of the amended Law on the Supreme Court, under which the

examination of compliance with the EU requirements relating to an independent and

impartial tribunal previously established by law may be classified as a ‘disciplinary offence’,

...”

42. In Miasto Łowicz, C‑558/18 and C‑563/18, ECLI:EU:C:2020:234, the context was disciplinary

investigation against judges for making references to Luxembourg. The CJEU said:

“55 ... it is important to note, as is clear from the Court’s settled case-law, that the

keystone of the judicial system established by the Treaties is the preliminary ruling

procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one

court and another, between the Court of Justice and the courts and tribunals of the Member

States, has the object of securing uniformity in the interpretation of EU law, thereby serving

to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular

nature of the law established by the Treaties (Opinion 2/13 of 18 December 2014,

EU:C:2014:2454, paragraph 176, and judgment of 24 October 2018, XC and Others,

C‑234/17, EU:C:2018:853, paragraph 41).

56 In accordance with equally settled case-law, Article 267 TFEU gives national courts

the widest discretion in referring matters to the Court if they consider that a case pending

before them raises questions involving the interpretation of provisions of EU law, or

consideration of their validity, which are necessary for the resolution of the case before

them. National courts are, moreover, free to exercise that discretion at whatever stage of

the proceedings they consider appropriate (judgments of 5 October 2010, Elchinov,

C‑173/09, EU:C:2010:581, paragraph 26, and of 24 October 2018, XC and Others,

C‑234/17, EU:C:2018:853, paragraph 42 and the case-law cited).

57 Therefore, a rule of national law cannot prevent a national court from using that

discretion, which is an inherent part of the system of cooperation between the national courts

and the Court of Justice established in Article 267 TFEU and of the functions of the court

responsible for the application of EU law, entrusted by that provision to the national courts

(judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary

Chamber of the Supreme Court) (C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982,

paragraph 103 and the case-law cited).

58 Provisions of national law which expose national judges to disciplinary proceedings as

a result of the fact that they submitted a reference to the Court for a preliminary ruling

cannot therefore be permitted (see, to that effect, order of the President of the Court of 1

October 2018, Miasto Łowicz and Prokuratura Okręgowa w Płocku, C‑558/18 and C‑563/18,

not published, EU:C:2018:923, paragraph 21). Indeed, the mere prospect, as the case may

be, of being the subject of disciplinary proceedings as a result of making such a reference

or deciding to maintain that reference after it was made is likely to undermine the effective

exercise by the national judges concerned of the discretion and the functions referred to in

the preceding paragraph.

59 For those judges, not being exposed to disciplinary proceedings or measures for

having exercised such a discretion to bring a matter before the Court, which is exclusively

within their jurisdiction, also constitutes a guarantee that is essential to judicial

independence (see, to that effect, order of 12 February 2019, RH, C‑8/19 PPU,

EU:C:2019:110, paragraph 47), which independence is, in particular, essential to the proper

working of the judicial cooperation system embodied by the preliminary ruling mechanism

under Article 267 TFEU (see, to that effect, judgment of 25 July 2018, Minister for Justice

and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586,

paragraph 54 and the case-law cited).”

43. Such an attempt to limit individual judges from exercising the EU law right to refer could

never happen in Ireland – right?

44. Insofar as views were expressed in Minister for Justice v. O’Connor [2015] IECA 227, [2018]

3 I.R. 1, [2015] 10 JIC 2301 to the effect there should not be a reference, where a higher domestic

court has already opined, “otherwise than in wholly exceptional circumstances” (Ryan P.) or that

“having regard to the hierarchical system of our legal system and the importance of precedent in

that legal system, it would inappropriate for this court to take a step which might be thought

indirectly to impeach the authority of [a decision of the Supreme Court]” (Hogan J.), one has to very

respectfully conclude that such obiter views, while of course understandable, are best understood

more as empirical observation as to judicial inclinations than doctrinal rule. Subject to the CJEU

stating otherwise, the EU law position seems to be that if a domestic judge in any EU member state

thinks that a point so decided really isn’t acte clair, she does have a freedom to refer it, and to

suggest whatever answers she considers are warranted, and that doing so can neither be prohibited

nor restrained by quasi-legal condemnations of that being “inappropriate”. The obiter reference by

Hogan J. to “our” legal system, while connoting an understandable and wholesome allegiance to the

legal traditions and culture of the Anglosphere, is nonetheless suggestive of common law

exceptionalism which wouldn’t be a concept that would carry a whole lot of weight in European law

in a context like this. The freedom to refer isn’t more limited in common law countries.

45. That freedom emerges from the CJEU caselaw (none of which is cited or referred to in

O’Connor), which was summarised in Enniskerry Alliance v. An Bord Pleanála (No. 3) [2022] IEHC

337, [2022] 6 JIC 1002 para. 44 quoting the notice party’s submission there:

“166/73 Rheinmuhlen: ‘A rule of national law whereby a court is bound on points of law by

the rulings of a superior court cannot deprive the inferior courts of their power to refer to

the Court questions of interpretation of Community law involving such rulings.’

C-378/08 ERG, §32: ‘a lower court must be free, if it considers that a higher court’s legal

ruling could lead it to give a judgment contrary to EU law, to refer to the Court questions

which concern it.’

C‑188/10 Melki and Abdeli, §42, Affirmed the same rule.

C-416/10 Krizan, §68: ‘a national rule pursuant to which legal rulings of a higher court bind

another national court, cannot take away from the latter court the discretion to refer to the

Court of Justice questions of interpretation of the points of European Union law concerned

by such legal rulings.’

C-136/12 Consiglio Nazionale di Geologi, §36 : ‘It is for the referring court alone to determine

and formulate the questions referred for a preliminary ruling . National rules which have the

effect of undermining that jurisdiction must be disapplied.’”

46. Indeed in fairness to the court in O’Connor, it was acknowledged that the court there had

the freedom to refer a point notwithstanding a Supreme Court decision, “strictly speaking” (per

Hogan J. at para. 34). But there isn’t anything particularly strict about speaking thus.

47. Subject to any further clarification of this issue by the CJEU, a judge can make a reference

that might be seen to suggest a different answer than that arrived at by a higher domestic court.

She is entitled to a systemic acknowledgement of a court or tribunal’s freedom to do so without

being stigmatised as acting inappropriately. In terms of deterring the exercise of the right to refer,

there is little difference in practice between an assertion that a reference is prohibited and an

assertion that a party or an appellate court is entitled to label the exercise of that right as

“inappropriate”. The right to refer and the duty of sincere co-operation also implies an entitlement

to suggest the answer that seems most appropriate to the referring court even if that might be

different to that arrived at by a higher domestic court. Otherwise the referring court would be failing

to offer its best efforts at co-operation to the CJEU and would be presenting the question on an

insincere and inadequate premise.

48. The obvious legal purposes of the right to refer notwithstanding a decision of a higher

domestic court is that it is axiomatic that, with all possible respect to those courts, any appellate

court’s view on a debatable EU law point does not have absolutely definitive status, because a later

CJEU reference in another case could show the position to be otherwise. As I pointed out in

Balscadden Road SAA Residents Association v. ABP (No. 2) [2021] IEHC 143, [2021] 3 JIC 1217,

that is not entirely hypothetical. In X.X. v. The Minister for Justice & Equality [2018] IECA 124,

[2018] 5 JIC 0401 (Unreported, Court of Appeal, 4th May, 2018), Hogan J., for the Court of Appeal,

expressed the opinion (differing from my view on that point in the judgment appealed against) that

“[o]ne can, I think, leave to one side the provisions of the recast Asylum Procedures Directive

(2012/32/EU) since it does not apply to Ireland. It could not, therefore, be relied for any purpose in

interpreting the relevant provisions of [Irish law implementing directive 2005/85/EC, which does

apply to Ireland]”. But later in Judgment of 14 January 2021, K.S. & M.H.K. v. Minister for Justice

and Equality, C-322/19 and C-385/19, ECLI:EU:C:2021:11 following a reference under art. 267

TFEU (which I had made to clarify the matter subsequent to X.X.), the CJEU completely rejected the

premise of Hogan J.’s view, saying that “[a] national court must take account of Directive

2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures

for granting and withdrawing international protection, which, pursuant to Articles 1 and 2 and Article

4a(1) of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area

of freedom, security and justice, does not apply in the Member State of that court, in order to

interpret the provisions of Directive 2013/33/EU of the European Parliament and of the Council of

26 June 2013 laying down standards for the reception of applicants for international protection,

which is, by contrast, applicable in that Member State in accordance with Article 4 of that protocol.”

Thus a directive can’t be “left to one side” merely because it doesn’t apply to Ireland, if it’s relevant

to interpreting a directive that does so apply, or to domestic legislation implementing the latter. The

obvious problem all along with the obiter view expressed in X.X. was that the meaning of something

doesn’t depend on the country you are standing in when you are reading it. The common law is a

wonderful system but that doesn’t create legal exceptionalism, or exemption from uniform

interpretations of EU law. This sort of problem could arise again any time a court, including on

appeal, decides a debatable EU law point without a reference. So with absolutely no disrespect

intended, even an appellate court’s analysis of EU law can turn out to require modification in the

light of later clarification from Luxembourg, and the same holds true in any member state. Appellate

courts in “our” system are neither less nor more fallible than their counterparts elsewhere in this

regard. Only Luxembourg can provide definitive clarity. The right to refer is vital and the concept

that it could be a disciplinary matter or stigmatised as inappropriate – even in a common law country,

one might add - is fundamentally incompatible with EU law.

49. However in the light of O’Connor one could not say with absolute confidence that Irish law

as it currently stands fully accepts that the position I have outlined is acte clair. This raises a first

question which arises in the present case as follows:

Whether article 4(3) TEU, article 267 TFEU or the general principles of EU law

including the principle of supremacy have the effect that the courts of a member

state are obliged to disapply any rule or practice of the domestic law of the member

state, such as the principle of following decisions of higher courts in a hierarchical

common law system and the importance of precedent in such a legal system as

embodied in the doctrine of stare decisis, that would have the effect of

discouraging or inhibiting a court from referring a question that it is otherwise

minded to refer to the CJEU or rendering that inappropriate on the ground that to

do so could in effect call into question a previous interpretation of EU law by

another court in that member state of higher hierarchical standing than the

referring court, or that would have the effect of discouraging or inhibiting the

referring court, insofar as it may be minded to suggest possible answers to the

questions being referred, from proposing an answer that it is otherwise minded to

propose to the CJEU or rendering that inappropriate on the ground that to do so

could in effect call into question a previous interpretation of EU law by another

court in that member state of higher hierarchical standing than the referring court.

50. With the issue of the legitimacy of considering the point at all in this context thus addressed,

we can turn to the merits. Coillte points out that the Commissioner has previously held that the

name of a “valid” natural or legal person must be provided: Wind Noise Info and Wexford County

Council, Case CEI/14/0017.

51. The differences between the parties on this issue include the following:

(i) Coillte say that a request for the purpose of administrative appeal only means a valid

request; the Commissioner says it means a purported request rejected for any

reason;

(ii) Coillte says that an applicant only means an identified applicant whereas the

Commissioner considers that pseudonymous or essentially anonymous applications

are permitted; and

(iii) Coillte says that the provision for rejection of manifestly unreasonable complaints

allows requests to be made for the identity of applicants; the Commissioner rejects

this.

52. The second question therefore is:

Does the word “request” in Article 6(1) of Directive 2003/4 read in the light of

Article 4(1) of the Convention on Access to Information, Public Participation in

Decision-Making and Access to Justice in Environmental Matters done at Aarhus on

25 June 1998 mean only a request that is valid by reference to the Directive and

by reference to the transposing domestic law of the member state concerned?

53. A third question is:

Does the word “applicant” in Article 2(5) of Directive 2003/4 read in the light of

inter alia Article 4(1)(b) and/or Article 6(1) and/or (2) and/or Articles 2(5) and

4(1) and (3)(b) of the Convention on Access to Information, Public Participation

in Decision-Making and Access to Justice in Environmental Matters done at Aarhus

on 25 June 1998 mean a natural or legal person identified by their actual name

and/or a current physical address, or does it include an anonymous or

pseudonymous person and/or an applicant whose contact details are identified by

email only?

54. The latter question is intimately related to the fact that the directive envisages a route of

access to the domestic courts. That engagement is clearly impossible unless people engage with

the process in their actual names and provide an actual address at which they are capable of being

served and contacted.

Issue 2 –whether Coillte erred in holding that the requests were invalid

55. As noted above, the Irish legislation needs to be viewed in the light of the meaning of the

EU directive. This relates to the question of how much scope the domestic legislature may have to

make provision for practical arrangements to implement the directive, as considered in Right to

Know CLG v. Commissioner for Environmental Information [2023] IECA 68.

56. National legislation here provides that a requester must:

“state the name, address and any other relevant contact details of the appellant.”

57. The ordinary meaning of “address” is physical address.

58. The New Shorter English Dictionary (Oxford, Clarendon Press, 1993) Vol. I p. 25 defines

“address” in the sense with which we are concerned as “5. The superscription of a letter etc.; the

name of the place to which anyone’s letters etc. are directed; one’s place of residence. .. b

Computing. A sequence of bits which identifies a particular location in a data processing system”.

The two examples given for this sense of the word are “E HEMINGWAY I got into the cab and gave

the driver the address of Simmons” (from A Farewell to Arms (1929)) and, gratifyingly, “JOYCE The

partially obliterated address and postmark” (also gratifyingly, one notes in passing that even

Hemingway requires a first initial for identification – not so for Joyce). That is a quotation from

Chapter 16 (“Eumaeus”) of Ulysses (p. 535), in a scene where Leopold Bloom interacts with a red-

bearded sailor, D. B. Murphy of Carrigaloe, at a jarvey shelter. Murphy produces a postcard which

he claims was sent to him:

“ ... A friend of mine sent me.

He fumbled out a picture postcard from his inside pocket which seemed to be in its way a

species of repository and pushed it along the table. The printed matter on it stated: Choza

de Indios. Beni, Bolivia.”

59. Bloom then inter alia examines the address:

“Mr Bloom, without evincing surprise, unostentatiously turned over the card to peruse the

partially obliterated address and postmark. It ran as follows: Tarjeta Postal, Señor A Boudin,

Galeria Becche, Santiago, Chile. There was no message evidently, as he took particular

notice. Though not an implicit believer in the lurid story narrated (or the eggsniping

transaction for that matter despite William Tell and the Lazarillo-Don Cesar de Bazan incident

depicted in Maritana on which occasion the former's ball passed through the latter's hat)

having detected a discrepancy between his name (assuming he was the person he

represented himself to be and not sailing under false colours after having boxed the compass

on the strict q.t. somewhere) and the fictitious addressee of the missive which made him

nourish some suspicions of our friend's bona fides, nevertheless it reminded him in a way of

a longcherished plan he meant to one day realise some Wednesday or Saturday of travelling

to London via long sea not to say that he had ever travelled extensively to any great extent

but he was at heart a born adventurer though by a trick of fate he had consistently remained

a landlubber except you call going to Holyhead which was his longest.”

60. What Leopold Bloom, Ernest Hemingway and the editors of the New Shorter Oxford

Dictionary have in common is the understanding that the word “address” in the sense concerned

means a physical address at which a person may be located or contacted (such as “Galeria Becche,

Santiago, Chile”). The secondary computing sense of data location point doesn’t apply in this context

because the AIE regulations speak of the “address ... of the appellant”. An appellant is not a point

of data in a database so that sense is irrelevant. The legal dictionaries reinforce that ordinary

meaning.

61. The Oxford Dictionary of Law doesn’t define “address” although it defines the related concept

of “address for service” in essentially physical terms:

“The address, which a party to court proceedings gives to the court and/or the other party,

to which all the formal documents relating to the proceedings should be delivered. Notices

delivered at that address (which may be, for example, the address of his solicitors) are

binding on the party concerned. Relevant rules are contained in the Civil Procedure Rules.

See service.”

See https://www.oxfordreference.com/display/10.1093/oi/authority.20110803095350620

62. Murdoch and Hunt’s Dictionary of Irish Law 6th ed at p. 21 doesn’t define address either,

but refers to Walsh v. Kildare County Council, [2000] IEHC 103, [2001] 1 I.R. 483, [2000] 7 JIC

2902 (Finnegan J.) as authority for the proposition that an address cannot be “inadequate to afford

the planning authority a choice of the full range of options for giving notice” (p. 21). Again that is

consistent with the ordinary meaning of address as something physical. It also means “current”

address in ordinary parlance, as Coillte reasonably suggested in correspondence.

63. Likewise the ordinary and natural meaning of “name” is a person’s actual name, not a

pseudonym.

64. That doesn’t mean that we absolutely can’t depart from that ordinary meaning if required to

do so on a conforming interpretation, assuming that the required departure if such is required would

not be contra legem. But the issue of departure from the ordinary meaning doesn’t arise until we

identify whether EU law requires such a departure.

65. If Coillte is correct, as specified above, that the directive itself requires the furnishing of an

actual name and physical address, then this issue doesn’t arise. But assuming that the Directive

doesn’t require that (as addressed under Issue 1 above), the fall-back question is whether the

directive permits either national law or the public authority concerned to require that.

66. As regards national law, the initial relevant point of disagreement is therefore a fourth

question as follows:

If Directive 2003/4 does not have the effect that an applicant is required by virtue

of the Directive itself to furnish an actual name and/or current physical address

when making a request for environmental information, does Article 3(1) and/or

(5)(c) of Directive 2003/4 read in the light of Article 4(1) of the Convention on

Access to Information, Public Participation in Decision-Making and Access to

Justice in Environmental Matters done at Aarhus on 25 June 1998 have the effect

of precluding national legislation that requires an applicant to furnish his or her

actual name and/or current physical address in order to make a request?

67. Turning to whether the public authority can request such details, a fifth question is as

follows:

If Directive 2003/4 does not have the effect that an applicant is required by virtue

of the Directive itself to furnish an actual name and/or current physical address

when making a request for environmental information, does Directive 2003/4 read

in the light of Article 4 of the Convention on Access to Information, Public

Participation in Decision-Making and Access to Justice in Environmental Matters

done at Aarhus on 25 June 1998 have the effect that where a public authority forms

the reasonable view that there is a prima facie question over the genuineness of

information regarding his or her identity provided by an applicant, the public

authority is prohibited from seeking confirmation as to the applicant’s actual name

and/or a current physical address, for the purpose of verifying the identity of the

applicant, and not for the purpose of determining the interest of the applicant,

even if the provision of the actual name and/or current physical address of an

applicant could indirectly allow inference or speculation as to the interest if any of

the applicant referred to in Article 3(1) of the Directive?

68. There is a related issue which is whether the power to reject a request as manifestly

unreasonable has the effect that a public authority must be required to know that person’s identity.

The courts and the Commissioner have grappled with such issues including in the FOI context: see

e.g. Grange v. Information Commissioner [2022] IECA 153 (Haughton J.), Mr Q and ESB Networks

Limited, Case CEI/15/0029.

69. The sixth and final question here is:

If the answer to the fourth question in general is “No”, does Article 4(1)(b) of the

Directive read in the light of Article 4(3)(b) of the Convention on Access to

Information, Public Participation in Decision-Making and Access to Justice in

Environmental Matters done at Aarhus on 25 June 1998 have the effect that a

public authority is prohibited from seeking confirmation as to the applicant’s actual

name and/or a current physical address, for the purposes of determining whether

a given request is manifestly unreasonable by reference to the volume, nature and

frequency of other requests made by the same applicant, and not for the purpose

of determining the interest of the applicant, even if the provision of the actual

name and/or current physical address of an applicant could indirectly allow

inference or speculation as to the interest if any of the applicant referred to in

Article 3(1) of the Directive?

Reference to the CJEU

70. The question now arises as to whether I should decide the foregoing questions myself or

refer them to Luxembourg. The first question is one for the CJEU anyway but actually referring that

here depends on any of the later questions being referred. One issue in that regard is whether the

point is clear or could be the subject of doubt. But there is very little European or international

material before me that could be said to resolve or determine this issue in a way that eliminates

doubt.

71. The UNECE publication, The Aarhus Convention: An Implementation Guide (2nd Ed., UN,

2014) at pp. 55-56 is not hugely enlightening on this:

“The definition of ‘public’ should be interpreted as applying the ‘any person’ principle (for an

explanation of natural and legal persons, see comment to article 2, paragraph 2). For

emphasis, the Aarhus Convention also explicitly mentions associations, organizations and

groups. By way of comparison, the definition of ‘public’ in article 1 (j) of the Industrial

Accidents Convention is simply ‘one or more natural or legal persons’. The same definition

can currently be found in article 1, paragraph (x), of the Espoo Convention, although the

2004 amendment to the Espoo Convention, once in force, adopts the Aarhus Convention

approach and will extend the definition to explicitly include associations, organizations and

groups. In most cases, an association, organization or group of natural or legal persons will

itself have legal personality, and therefore will already fall under the definition. The language

can only be interpreted, therefore, to provide that associations, organizations or groups

without legal personality may also be considered to be members of the public under the

Convention. This addition is qualified, however, by the reference to national legislation or

practice. Thus, ad hoc formations can only be considered to be members of the public where

the requirements, if any, established by national legislation or practice are met. Such

requirements, if any, must comply with the Convention’s objective of securing broad access

to its rights. The term ‘public’ in article 2, paragraph 4, is not in itself subject to any

conditions or restrictions. Thus, where the Convention conveys rights on ‘the public’ without

expressly adding any further qualifications on who of the public may enjoy those rights, the

public are entitled to exercise those rights irrespective of whether they personally are

‘affected’ or otherwise have an interest. Articles 4, 5, 6, paragraph 7 and 9, and article 8

are examples of provisions which follow this approach. Moreover, article 3, paragraph 9,

requires that no person be excluded from the definition on the grounds of nationality,

domicile, citizenship, or place of registered seat. Persons who are non-citizens, therefore,

have rights and interests under the Convention. For example, the rights under article 4

relating to requests for information apply to non-citizens and nonresidents as well as citizens

and residents.”

72. My understanding is that there is no definitive decision of the German courts on these

questions either.

73. In a paper on the German AIE legislation (known as UIG) available at

https://fragdenstaat.de/dokumente/7701-anhang-a-rechtsgutachten-20200923_konvertiert/,

(Umweltforschungsplan des Bundesministeriums für Umwelt, Naturschutz, Bau und

Reaktorsicherheit Forschungskennzahl [3716 17 103 0] UBA-FB-00 [trägt die UBA-Bibliothek ein]

Evaluation des Umweltinformationsgesetzes (UIG) Analyse der Anwendung der Regelungen des UIG

und Erschließung von Optimierungspotentialen für einen ungehinderten und einfachen Zugang zu

Umweltinformationen Anhang A: Rechtsgutachten von Univ.-Prof. Dr. Dr. h.c. Thomas Schomerus

RiOVG, Leuphana Universität Lüneburg für das Unabhängiges Institut für Umweltfragen (UfU) e.V.,

Greifswalder Straße 4, 10405 Berlin unter Mitarbeit von Karl Stracke, Unabhängiges Institut für

Umweltfragen e.V.Berlin, Lüneburg, Januar 2020 Im Auftrag des Umweltbundesamtes), the learned

authors refer to both views on the question. They begin (at p. 110) by commenting:

“2.4.2.2 Anonyme Anträge

Umstritten ist, ob der Antragsteller mit Name und Adresse identifizierbar sein muss. Nach

einer älteren Auffassung gehöre diese Identifizierbarkeit zum „Mindestinhalt des Antrags“. 461

[citing Reidt/Schiller, in: Landmann/Rohmer, UmweltR, 85. EL Dezember 2017, UIG § 4 Rn.

5; Scherzberg, in: Fluck, Informationsfreiheitsrecht, § 4 UIG Rn. 16].”

(2.4.2.2 Anonymous applications

It is debated whether the applicant must be identifiable by name and address. According to

an older view, this identifiability is part of the ‘minimum content of the application’. 461)

74. The learned authors then discuss the alternative argument:

“Nach anderer Auffassung setzt ein wirksamer Antrag auf Informationszugang keine

Identifizierung des Antragstellers voraus: „Die Identifizierung der antragstellenden Person

wird durch § 4 UIG nicht gefordert und ist auch nicht immer notwendig. Die anonyme oder

pseudonyme Antragstellung (vgl. § 13 Absatz 6 TMG) vor allem unter Nutzung moderner

Kommunikationsdienste steht der Regelung des § 4 UIG nicht entgegen. Soweit anonyme

Bezahlverfahren zur Verfügung gestellt werden, ist selbst die Identifizierung für die

Durchsetzung eventueller Gebühren und Auslagen nicht mehr erforderlich (vgl. § 6 IFG-SH

Z 2 aE)‘.462“ [Citing Karg, in: Gersdorf/Paal, BeckOK InfoMedienR, 18. Ed. 01.02.2017, UIG

§ 4 Rn. 5.]

(According to another view, a valid application for access to information does not require

identification of the applicant: ‘Section 4 UIG does not require the identification of the

applicant and it is also not always necessary. The anonymous or pseudonymous Application

(see Section 13 Paragraph 6 TMG) especially using modern communication services are not

contrary to the requirements of Section 4 UIG. In so far as anonymous payment methods

are provided, even identification for the enforcement of possible fees and expenses is no

longer necessary (cf. § 6 IFG-SH Z 2 aE).’ 462)

75. The discussion goes on:

“Für letztere Auffassung spricht, dass der Antrag auf Zugang zu Umweltinformationen nach

§ 3 Abs. 1 UIG keinen Nachweis irgendeines Interesses erfordert. 463 [Citing S. oben unter

2.3.1.2.3.] Der Antragsteller handelt als Repräsentant der Öffentlichkeit, für die ein

grundsätzliches Interesse an Umweltinformationen vorausgesetzt wird. Die individuelle

Person des Antragstellers ist für die Wirksamkeit des Antrags grundsätzlich irrelevant. Daher

wird die Kenntnis von dieser Person materiell nicht gefordert. Antragsteller können

grundsätzlich anonym oder unter Pseudonym auftreten. Verfahrensmäßig muss jedoch

zumindest eine irgendwie geartete Adresse angegeben werden, an die die

Umweltinformation gesandt werden soll. So kann ein anonymes Schreiben denklogisch nicht

beantwortet werden. Im Internet ist es aber durchaus möglich und auch vielfach üblich,

ohne den eigenen Echtnamen aufzutreten. Auch ist denkbar, dass jemand persönlich eine

informationspflichtige Stelle aufsucht, ohne seinen Namen und Adresse anzugeben, und

unmittelbar Einsicht in bestimmte, Umweltinformationen enthaltende Unterlagen begehrt.“

(The latter view is supported by the fact that the request for access to environmental

information in accordance with Section 3 Paragraph 1 UIG, does not require any proof of

interest. 463 The Applicant acts as a representative of the public, for which a fundamental

interest in environmental information is presumed. The applicant as an individual person is

fundamentally irrelevant to the validity of the application. Therefore knowledge of [the

identity of] this person is not materially required. Applicants can generally appear

anonymously or under a pseudonym. However, procedurally at least some kind of address

must be provided where the environmental information is to be sent. Logically, an

anonymous letter cannot be responded to. On the internet it is certainly possible and often

common to appear without one's own real name. It is also conceivable that someone visits

an organisation that has a duty to provide information in person, without providing one’s

name and address, requesting immediate access to certain documentation containing

environmental information.)

76. All of this just adds to the doubt about the ultimate answer to the questions considered,

which reinforces the case for a reference. Overall it seems to me that these questions are

appropriate ones to refer to the CJEU. They are necessary for the decision and they relate to the

interpretation rather than application of EU law. Nor are they acte clair in the sense that there is or

can be no disagreement about the answers. I will thus request the parties to file simultaneous

written submissions in an Eco Advocacy CLG v. An Bord Pleanála [2021] IEHC 265, [2021] 5 JIC

2704 format within the next 2 weeks for this purpose.

77. The State have a potential interest to the extent that although the issue of the compatibility

of the regulations with the directive doesn’t arise now, it may arise later. If Coillte’s interpretation

of EU law is incorrect, the extent to which a conforming interpretation is available remains a matter

of dispute, but if it arises, that will be a matter of domestic law in the light of the ruling of the CJEU.

So it may be that the validity of the regulations will come into focus, but that is something that can

be returned to following answers to the questions. The Attorney General will have to be involved in

any module arising on foot of that. There is no particular legal requirement for that issue to be

pleaded other than by reference to any notice under O. 60 RSC, which strictly doesn’t apply here

because the issue is compatibility of legislation with EU law rather than the Constitution. However

the parties should serve the State with all papers within 7 days and the matter will then be listed on

the next following Monday to enable the State to contribute if necessary, in accordance with what is

envisaged in the Eco Advocacy procedure.

78. As regards what is to happen pending the ruling of the CJEU, Coillte says a reference would

not be a blocking tactic and that any future applications would be dealt with in a normal way in

accordance with its own views. However any appeals before the Commissioner, of which there are

at least the 23 referred to already, can be held over if required. It may be that some appeals in

which the identity issue is a factor can be resolved without that having to be decided (although it’s

hard to see how that could happen if the jurisdiction to consider the appeal at all is contested). But

in any matter where the referred issues are critical, it would be preferable if the Commissioner would

not cut across any potential reference, thereby forcing the public authorities concerned to appeal to

the court, where I will then park all such appeals pending the outcome in Luxembourg. If parking

is to happen, it should happen at a stage before it generates more litigation.

Order

79. For the foregoing reasons, it is ordered that:

(i) the identified question be in principle referred to the CJEU;

(ii) the appellant be directed to serve the CSSO with all papers within 7 days (which

may be via the ShareFile link, with access to be provided to such solicitors and

counsel as are notified for the purpose by the CSSO to the List Registrar) and to

inform the CSSO of the opportunity to contribute to the order for reference as well

as of the potential issue in due course regarding the compatibility of the regulations

with EU law depending on the answers to the questions being referred;

(iii) the parties be directed to prepare simultaneous Eco Advocacy [2021] IEHC 265

submissions within 14 days;

(iv) the directions in that case be ordered to apply;

(v) the matter be listed for mention on the Monday next following notification to the

CSSO; and

(vi) costs be reserved.