High Court refers question to CJEU on whether RTÉ is a public authority under EU environmental information directive.

[2024] IEHC 729

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.MCA.2024.0000054]

IN THE MATTER OF AN APPEAL PURSUANT TO ARTICLE 13 OF THE EUROPEAN

COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGULATIONS 2007-

2014

BETWEEN

RAIDIÓ TEILIFÍS ÉIREANN

APPELLANT

AND

THE COMMISSIONER FOR ENVIRONMENTAL INFORMATION

RESPONDENT

AND

RIGHT TO KNOW CLG

NOTICE PARTY

JUDGMENT of Humphreys J. delivered on Friday the 20th day of December 2024

1. How should the law balance the right of access to environmental information, which is

particularly important in relation to the problem of false balance in media coverage of the climate

emergency, with the right of public broadcasters to exercise their press freedom? The context is a

dispute as to whether Raidió Teilifís Éireann (RTÉ) is a public authority for the purpose of 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 (the AIE directive). After

disposing of the domestic points, all the issues are going to come down to ones of EU law, specifically

the interpretation of art. 2 of the directive, and typically in such a situation, all sides appear to claim

that the answers are acte clair in their respective favour. But in contrast to many situations, we

have massive evidence that the matter is not acte clair in anybody’s favour, for the simple reason

that RTÉ have been able to survey practice across the EEA which show substantial divergence in

approach, and indeed shows a majority of countries not applying the directive to their public

broadcasters.

Judgment history

2. While there is no previous litigation history regarding the matter at hand, there was a

previous action between the parties concerning a different request, Right to Know CLG v.

Commissioner for Environmental Information and RTÉ [2021] IEHC 353, [2021] 4 JIC 2008

(Unreported, High Court, Barrett J., 20th April 2020). In that case RTÉ did not make an issue of

whether it was a public authority. That doesn’t prevent it from disputing that here, as it does. The

court there concluded inter alia that broadcasting and reporting on the issue of climate change was

a measure and activity within the meaning of paragraph (c) of the definition of environmental

information. It was also determined that climate change is a factor affecting or likely to affect the

elements of the environment within the meaning of paragraph (b) of the definition of environmental

information. If RTÉ is ultimately held to be a public authority, RTÉ doesn’t dispute these matters for

the purposes of the present judgment, without prejudice to their right to do so at some future stage.

Facts in relation to the status of RTÉ

3. RTÉ is Ireland's public service broadcaster and is one of the oldest continuously operating

public service broadcasters in the world. What is now RTÉ radio service began testing on 14th

November 1925 – just short of 100 years ago, and regularly broadcasting on 1st January 1926, as

2RN. As Radio Éireann it was statutorily established by the Broadcasting Authority Act 1960. The

name of Radio Éireann was changed to Radio Teilifís Éireann by s. 3 of the Broadcasting Authority

(Amendment) Act 1966. In its current iteration, its name was changed to Raidió Teilifís Éireann by

s. 113 of the Broadcasting Act 2009, under which it stands established as a statutory corporation.

RTÉ is established as a public service broadcaster to work within the parameters of the statute. All

members of the board of RTÉ are appointed by the Government. RTÉ is required to report to the

Minister for the Environment, Climate and Communications, the Oireachtas and the public as to the

performance of its functions. It must have a statutory code of conduct and is subject to statutory

disclosure of interests. It reports to Oireachtas committees and has many of the indicia of public

law bodies guided by public law constraints.

4. The principal objects and associated powers of RTÉ are in s. 114 of the 2009 Act. They

include inter alia the establishment, maintenance and operation of a national television and sound

broadcasting service, which shall have the character of a public service, be a free-to-air service and

be made available, as far as is practicable, to the whole community on the island of Ireland. In

pursuance of this, RTÉ is obliged to provide community, local or regional broadcasting services.

RTÉ’s objects under s. 114(1) also include the maintenance of a website in connection with its

services, the establishment and maintenance of an orchestra, archives and libraries and to assist

public bodies to disseminate information in the event of a major emergency. The legislative

framework includes an obligation to provide news and programming in both the Irish and English

languages as well as specific statutory obligations regarding its broadcast of news and current affairs

content. RTÉ currently provides television and radio services as well as a non-linear/simulcast and

on-demand service such as the “RTÉ Player”.

5. RTÉ is dual-funded. Pursuant to s. 123(1) of the 2009 Act, the relevant Minister may pay

to RTÉ out of monies provided by the Oireachtas in respect of each financial year after the passing

of the Act an amount equal to the total of receipts in that year in respect of television licence fees,

less expenses and payments to the Broadcasting Fund. RTÉ is also obliged to earn commercial

revenue. Pursuant to s. 114(1)(j) of the 2009 Act, RTÉ is obliged to exploit commercial opportunities

as may arise in pursuit of its public service objects.

6. Section 98 of the 2009 Act provides that, “[s]ubject to the requirements of this Act, [RTÉ]

shall be independent in the pursuance of its objects”. Further, the duties of the board, defined by

s. 87 of the 2009 Act, include an obligation, at subparagraph (d), 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.”

7. I accept the affidavit of Richard Dowling insofar as it sets out uncontested facts regarding

the operation of RTÉ.

8. Requests which have been made to RTÉ pursuant to the European Communities (Access to

Information on the Environment) Regulations 2007 to 2014 (S.I. No. 133 of 2007, S.I. No. 662 of

2011, S.I. 615 of 2014 and S.I. 309 of 2018) (the AIE regulations) to date include:

(i) names and qualifications of staff who reported on the Corrib gas field controversy;

(ii) records on how RTÉ should report climate change, policies and guidelines issued;

(iii) records relating to research which showed Morning Ireland’s “poor” environmental

coverage;

(iv) briefing materials for the director general and then head of news relating to reporting

on the environment;

(v) copies of strategy or policy documents relating to “Climate Week” initiative;

(vi) information relating to RTÉ Investigates programme entitled “A Rock & A Hard

Place”; including locations of all quarries, details of county councils using products

from unauthorised quarries, description of all information held by RTÉ;

(vii) records relating to RTÉ’s refusal to host a debate involving party leaders on climate

change during election coverage;

(viii) records prepared for the RTÉ board about the RTÉ Player, it being contended that

the data storage, processing and power consumption make these environmental

records;

(ix) records relating to a debate on the environment on Prime Time;

(x) records to back up statement that a traffic ban will continue and records held by

journalist;

(xi) records held by RTÉ which discuss a twitter account critical of RTÉ’s environmental

coverage;

(xii) legal costs associated with AIE requests;

(xiii) contracts for the sponsorship of the Countrywide radio programme, sponsorship of

the weather bulletins, sponsorship of traffic updates; the amount of money or value

in kind received by RTÉ from these over the last three years;

(xiv) records in relation to the publication on Twitter from then head of news apologising

for RTÉ’s climate coverage;

(xv) records of guidance and presentations given to RTÉ editorial staff on reporting

climate change;

(xvi) a copy of all video footage, whether broadcast or not, generated or obtained by RTÉ

Investigates programme including a list of staff who worked on the programme, a

copy of all information provided to the programme from persons who were outside

of RTÉ, the costs of the programme, information relating to the knowledge of

programme makers of vehicle tracking devices used during the making of the

programme and whether the programme-makers benefitted from the information

generated by tracking devices;

(xvii) details of financial contributions made to the independent production company for

Ecoeye;

(xviii) records on RTÉ programmes stating their carbon footprint; RTÉ policy on carbon

offsetting for flights and other polluting activities;

(xix) pest control reports and invoices;

(xx) names of people who received a complaint from an individual about an RTÉ member

of staff;

(xxi) details of RTÉ’s policies arising from a High Court decision that found broadcasting

was a factor that could impact on the environment;

(xxii) records supporting claim on programme that Atlantic salmon could disappear from

Irish rivers from 2030 onwards; and

(xxiii) list of all AIE cases received by RTÉ over a three year period and costs involved.

9. Clearly these include requests for information which relates to journalistic activities and that

which would, at a level of principle, benefit from privilege associated with journalistic activities and

press freedom.

10. I accept Mr Dowling’s evidence that it is of serious concern to RTÉ that information relating

to its journalistic activities could, in principle, be subject to disclosure pursuant to the AIE

regulations. Information of this nature can be highly sensitive and can include information provided

by sources to journalists. I accept his evidence insofar as it is to the effect that RTÉ has concerns

that this would have significant, adverse consequences for the journalistic activities that are

undertaken by RTÉ staff and would potentially require significant information that is held by RTÉ,

and its staff, to be subject to disclosure. This could include, for example, notes of off-the-record

briefings or information provided by whistle-blowers. Whether RTÉ’s concerns are well-founded to

the extent advocated by them is not something I need to decide right now, but it is obvious that the

general, high-level, concern that access to information should not interfere with journalistic freedom

is valid, and Mr Foxe effectively accepts the legitimacy of such concerns in any cases where it is

justified, as reflected in his affidavit.

11. Ms O’Leary for the commissioner legalistically objected on affidavit to the admissibility of

this list of items but sensibly that objection was not pursued in oral argument, so I can take that list

into account.

Facts in relation to the problem of false balance

12. As regards the affidavit of Mr Foxe, much of this is in substance legal submission or merely

counter-argument to the relevance or substance of RTÉ’s concerns. However I accept the following

averments:

“History of false balance and other concerns with media reporting on climate and the

environment

9. Part of the background to this request and others that the Notice Party has made to

RTÉ is the issue of false balance in the reporting of climate change. This occurs where a

media organisation feels that it must ensure balance in its reporting of climate change by

including coverage of climate change denial, even though there is overwhelming scientific

consensus concerning the reality of and the harm caused by climate change.

10. The issue was serious enough that An Taisce made a formal complaint in 2016 to

the Broadcasting Authority of Ireland concerning an RTÉ Prime Time programme entitled

‘How much will climate change cost Ireland’. I beg to refer to a copy of An Taisce’s press

release at Tab 1 of the exhibit.

11. RTÉ is not alone amongst media organisations in being the subject of criticism for

this issue. The BBC in 2018 accepted that it got coverage of climate change wrong too often

and in fact issued guidance to all staff warning them to be aware of the issue of false balance.

This came after Ofcom, the UK’s broadcasting regulator, censured the BBC for not sufficiently

challenging climate change denier, Nigel Lawson. I beg to refer to reporting in the Guardian

and Carbon Brief on this issue at Tab 2 and Tab 3 of the exhibit.

12. In fact in 2021, the Managing Director of RTÉ News published an article which

acknowledged criticism of its failings in its coverage of climate change

(https://www.rte.ie/news/analysis-and-comment/2021/0726/1237408-climate-change/). I

beg to refer to a copy of this article at Tab 4 of the exhibit.

13. In 2023 RTÉ published a strategy on Climate Change (https://about.rte.ie/wp-

content/uploads/2023/05/RTE-Climate-Action-Screen.pdf) which states:

As Ireland’s principal public service media organisation, RTÉ plays a trusted and vital

role in informing our audiences about the key issues which concern us and in shaping

national debate. Climate change is one of these issues, now more than ever. Given

the urgency in addressing climate change, we in RTÉ are mindful of the need to do

more, to be a positive influence, not just within our own industry, but also across

the public sector and across Irish society as a whole. …

14. The issue is broader than this. As set out in the affidavit of Ms O’Leary, the Notice

Party has a pending appeal seeking details of the commercial relationship between RTÉ and

the AA (a motoring lobbyist), Avonmore (a dairy company) and the Irish Farmer’s Journal

(a newspaper owned by the Irish Farmers Association). Clearly the use of motor vehicles,

and animal-based farming entail very significant emissions of carbon and other pollutants

yet organisations with commercial interests in these areas also have (or had) a commercial

relationship with RTÉ through sponsorship of traffic alerts, the weather forecast and

Countrywide, a program concerned with rural affairs.

15. An Taisce expressed similar concerns around sponsorship of the Late Late Show by

Renault including payments to Ryan Tubridy that are now subject to investigation and the

commercial relationship between other celebrities and car brands and their alleged use of

RTÉ property to promote these brands as part of their commercial relationship. I beg to

refer to a report on this issue in the Irish Independent at Tab 6 of the exhibit.

16. At a general level, RTÉ derives approximately 40% of its funding from commercial

revenue which is mainly advertising and sponsorship. This includes commercial

sponsorships such as those listed above. The balance of RTÉ’s funding is from the licence

fee. In addition, some of its best-known celebrities are independent contractors with outside

interests who often promote products and services.

17. I say that while RTÉ has a very significant journalistic function, it also produces a

wide range of content that is not journalistic in nature. This includes entertainment, sports,

drama, music, education, religion, arts, and factual programming.

18. I say that it is well known that significant governance issues have been discovered

in RTÉ in relation to secret payments, corporate entertainment, and undisclosed severance

packages to senior executives. I say that it is concerning that RTÉ, at a time when these

issues have been exposed and when it is under severe budgetary pressure, is spending

further public money seeking to reduce the level of transparency that it is subject too. RTÉ

has accepted since 2007 that it was a public authority and routinely answered AIE requests,

yet now when, in my view it should be more transparent, it is seeking to reduce the level of

scrutiny that it is subject to.

Environmental transparency is important for RTÉ as a public service broadcaster

19. The EPA has carried out research into the role of the media in communicating climate

change issues (Climate Change in Irish Media, Report No 300, November 2019). The

executive summary states (Tab 7 of the exhibit):

As scientists, policymakers, environmental non-governmental organisations (NGOs)

and climate activists seek to engage the public on climate change, it is important to

first understand how climate change is communicated to the public via the media.

Research indicates that public concern about climate change is largely derived from

media consumption. However, assessing media coverage of climate change is not

simply about the accumulation of content over time. Rather, it concerns the complex

and evolving relationships between media production practices, scientific knowledge,

policy agendas, and public understanding and engagement.

20. I believe access to environmental information is a critical tool in terms of creating

public awareness of environmental issues and ensuring that there is an exchange of views

on these issues. This is reflected in Recital 1 of the AIE Directive which makes it clear that

AIE is not concerned only with public participation in decision making but also with the wider

goal of ensuring that the public has access to environmental information generally so that

they are well informed on environmental issues.

21. In fact it would be surprising if RTÉ itself has not made use of the right of access to

environmental information to obtain information to inform its reporting. I find it

extraordinary that an organisation like RTÉ which prides itself on its current affairs and

investigative journalism is pursuing a case that would make it much more difficult for it to

be scrutinised to the same standard as it scrutinises other public authorities.”

13. The exhibited EPA report (https://www.epa.ie/publications/research/climate-

change/research-300-climate-change-in-irish-media.php) contains a summary as follows at p. xi:

“As scientists, policymakers, environmental nongovernmental organisations (NGOs) and

climate activists seek to engage the public on climate change, it is important to first

understand how climate change is communicated to the public via the media. Research

indicates that public concern about climate change is largely derived from media

consumption. However, assessing media coverage of climate change is not simply about

the accumulation of content over time. Rather, it concerns the complex and evolving

relationships between media production practices, scientific knowledge, policy agendas, and

public understanding and engagement.

Although some large-scale comparative studies of international climate change coverage

include Ireland, there are few in-depth studies of climate change across Irish media. This

current report represents a systematic effort to map climate change coverage across Irish

print, visual, broadcast and online media, and makes recommendations specific to Ireland

regarding the public communication of climate change. To do so, the project draws on

multidisciplinary expertise in computing and data science [Dublin City University (DCU)

Insight Centre for Data Analytics], journalism (DCU Institute for Future Media and

Journalism), science communication (DCU Celsius Research Cluster) and media studies (DCU

School of Communications). The main findings are summarised below.

The pattern of Irish newspaper coverage of climate change broadly follows international

trends, peaking during international climate change conferences and extreme weather

events and falling when other pressing issues, such as politics and economics, dominate the

news agenda. By European standards, overall coverage in Ireland is low, with The Irish

Times affording the greatest volume of coverage among national newspapers. Across these

newspapers, climate science is not contested to any great extent. However, climate change

is predominately framed as a political or ideological game, emphasising the personalities or

parties involved, rather than the extent of the challenge. The opportunity frame, which

portrays responses to climate change as opportunities for positive change, is weakly

represented.

Scholars now recognise that images are a valuable tool for fostering engagement with

climate change. An analysis of the images associated with climate change on The Irish

Times website highlights the shifting cultural politics of climate change. A wide range of

images links climate change to the practices of everyday life, but this apparent normalisation

stands in contrast to the dearth of images linking climate change to topical news stories such

as flooding and economic recovery. Moreover, images of farming and agriculture are rarely

linked to climate change, even though agriculture is one of Ireland’s major sources of CO2

and non-CO2 emissions.

Given the constraints of much commercial media across Europe, publicly funded

broadcasters such as RTÉ would appear ideally placed to communicate climate change to

the public. Prior to 2000, climate change was largely an invisible issue on RTÉ. Since then,

there have been broad fluctuations in the volume of coverage. A range of high-profile

international events, such as Live Earth, brought a sharp increase in RTÉ coverage in 2007.

However, coverage fell significantly following the financial crisis and did not recover until the

build-up to the United Nations (UN) Conference of the Parties in 2015. Much like newspaper

coverage, the national broadcaster does not appear to follow a specific editorial climate

change agenda, although some individual journalists do appear to focus attention on climate

change from time to time.

On social media, climate change discourses are led by distinct influential groups, including

the mainstream media, the NGO sector and the non-governmental sector. Although these

groups dominate engagement during the high-profile UN Conference of the Parties, the

presence of citizen-led and organised scepticism is also notable. In particular, we find a

high volume of content linking to the US-based Heartland Institute indicating the capacity

of ‘fake news’ and misinformation to infiltrate online platforms.”

14. The exhibited press release regarding the complaint by An Taisce to RTÉ is in the following

terms (https://www.antaisce.org/news/an-taisce-lodges-complaint-to-rte-on-primetime-climate-

change-debate):

“An Taisce Lodges Complaint to RTÉ on ‘PrimeTime’ Climate Change Debate

An Taisce has lodged a formal complaint with RTÉ regarding the Prime Time programme

broadcast on December 3rd, 2015, entitled ‘How much will climate change cost Ireland’.

This has been done because RTE’s flagship current affairs programme completely failed to

reflect the overwhelming expert consensus on the core findings of climate science.

RTE Prime Time has, in our view, once again misled the public on the crucial issue of climate

change by failing to present a scientifically credible and informed debate on the essential

decisions for the future of the Irish economy including agriculture.

The full complaint can be found at the link below, see Note 1. (Please note: this Complaint

does not relate to the short, pre-recorded video introductory segment or its reporter, but to

the extended ‘studio panel debate’ that followed).

An Taisce fully supports RTÉ’s key role in enabling free and open debate and to ‘operate in

the public interest, providing News and Current Affairs that is fair and impartial, accurate

and challenging’ (see Note 2). In our view though, these values were ignored in much of

the programme’s panel discussion, breaching both the Broadcasting Authority of Ireland

(BAI) rules and RTÉ’s own Journalism Guidelines (2012). This complaint follows similar

concerns regarding a previous Prime Time programme on climate change that was aired

early last year (Note 3).

The December 2015 programme’s discussion topic was the possible economic effects on

Irish agriculture arising from the national policy aiming to reduce national greenhouse gas

emissions in line with Ireland’s declared United Nations and EU commitments. However,

Prime Time misleadingly introduced a complete non-expert in this field (a specialist in

atmospheric meteorology) as an agricultural policy expert.

This panelist was then allowed to divert discussion into areas of climate science on which

neither the presenter nor the other panelists had sufficient knowledge, so allowing serious

misrepresentations of the expert findings of the Intergovernmental Panel on Climate Change

(IPCC) to occur. Personal views were therefore aired without any ‘forceful questioning’ (Note

4), despite the fact that Prime Time knew full well in advance that this panelist represents a

tiny ‘contrarian’ minority among scientists. At least two Irish academic specialists had

refused invitations to participate in the panel, clearly stating their concerns regarding the

potential ‘false balance’ presentation of climate science that, regrettably, did indeed result.

An Taisce believes that normal editorial and presenter preparation could easily have

accessed and noted the necessary key statements of the IPCC climate report (Note 5) to

properly rebut misleading statements but clearly this did not happen. Indeed, such a

shortage of journalistic rigor and basic climate understanding is far too often seen in climate

change coverage in our media. Here, this lack of rigor resulted in Prime Time allowing

personal advocacy, aimed at promoting climate inaction, being presented under cover of

supposed scientific authority, having been introduced as such by the presenter. Free speech

must be respected and a scientist is, of course, fully entitled to advocate for a personal view

on policy, but it is important that both they and the presenter make clear that they are doing

so. This did not happen.

In the complaint, An Taisce urges RTÉ and the BAI to consider introducing appropriate

policies and procedures on the accurate reporting of climate change science and policy. As

seen in the past, in the tobacco industry’s long running campaign to delay action to control

tobacco sales, vested interest efforts to delay action to control greenhouse gas emissions

have aimed to create public doubt by misrepresenting science and minimising potential

harmful impacts (Note 6). RTÉ and other media need to be far more aware of basic climate

science in order to avoid being manipulated in this way.

Clearer guidelines specific to climate change reporting, as have already been introduced by

the BBC and other media organisations would help RTÉ editors and presenters further to

‘maintain a balance of opinion that reflects the weight of evidence’. Regrettably, this ‘weight

of evidence’, was noticeably absent from RTE Prime Time in both its March 2014 and

December 2015 segments on climate change – and these were the only segments Prime

Time dedicated to this crucial topic in the last two years.

An Taisce looks forward to a detailed and comprehensive response from RTÉ Prime Time

regarding this complaint, and, if requested, we are prepared to engage constructively with

RTÉ in helping to draw up evidence-based guidelines on environmental and climate-related

reporting. We would urge all media editors and reporters working in all sectors – including

economics, energy and transport as well as agriculture – to be far more aware of core IPCC

climate science and policy guidance so that they can report climate change more accurately

and objectively, and so be better equipped to deal with ‘special pleading’ from powerful

interest groups opposing action on climate change.

The core finding of the overwhelming consensus, of scientists and experts, from all fields of

climate science and policy, is that acting immediately and strongly to cut our national and

personal greenhouse emissions will be far safer and far cheaper than delaying decisions and

acting later. Knowing this, we and our media need to critically question those who argue

otherwise.

Acting on climate change quickly and deeply will be required to meet the extremely

challenging 1.5C and 2C targets set out in the recent Paris Agreement, as is necessary to

prevent catastrophic climate change in the coming decades. Any and all debate now needs

to reflect the very challenging arithmetic of carbon budgets and emissions pathways now

needed by every nation, including Ireland.

The results of failing to act to cut emissions are already becoming abundantly evident in

extreme heat and drought events around the world, and specifically right now, in the

extreme flooding and storm events now directly affecting Ireland.

An Taisce strongly supports the right of the media to act independently and free from

censorship from any source in its reporting; this in turn right carries clear responsibilities,

the most crucial of which, we contend, is not ‘balance’ but accuracy.

We can limit the very worst effects of climate change if we act now. We urge our media to

reflect this reality.

ENDS

...

NOTES

1. Link to full complaint document.

http://www.antaisce.org/sites/antaisce.org/files/prime-time-complaint-2015-12-03-

final.pdf

2. RTÉ Journalism Guidelines (2012) p.2

3. RTÉ Prime Time programme March 18th, 2014. See discussions:

http://www.thinkorswim.ie/a-prime-lesson-in-how-not-to-cover-climate-change/

4. http://www.irishexaminer.com/viewpoints/columnists/victoria-white/prime-time-and-

rte-are-in-denial-of-the-truth-about-climate-change-264064.html

5. See BAI Rule 22: ‘It is an important part of the role of a presenter of a current affairs

programme to ensure that the audience has access to a wide variety of views on the

subject of the programme or item; to facilitate the expression of contributors’ opinions

– sometimes by forceful questioning; and to reflect the views of those who cannot, or

choose not to, participate in content.’

6. IPCC (2015) Video summary of the AR5 Synthesis Report.

https://www.youtube.com/watch?v=fGH0dAwM-QE

7. Authoritative reports presented at all levels from simple to complex are available from

http://www.ipcc.ch

8. Oreskes N, Conway EM (2010) Merchants of Doubt: How a Handful of Scientists

Obscured the Truth on Issues from Tobacco Smoke to Global Warming. Bloomsbury

Press.

Published: 3rd January, 2016”

15. An Irish Independent story on another complaint, exhibited, states

(https://archive.is/ZS4ki):

“An Taisce, the national environmental trust, has complained that RTÉ’s role as a public

service broadcaster and its climate-action coverage is undermined by its presenters

receiving cars or acting as brand ambassadors.

It also says the sponsorship of RTÉ shows by car brands is concerning.

The trust appealed to Media Minister Catherine Martin to investigate potential conflicts of

interest at the broadcaster.

Letters seen by the Sunday Independent show how the trust thinks ‘the legal status, remit

and function of RTÉ as a public service, licence-fee-supported broadcaster has been

compromised.’

An Taisce heritage officer Ian Lumley said this was a consequence of ‘presenters receiving

cars or acting as “brand ambassadors”’ for car companies, or ‘directly and indirectly’ getting

other benefits.

He claimed lifestyle shows were affected as much as hard news and current affairs reporting.

‘The “sponsorship” of RTÉ radio and TV shows by car sales brands, including the Late Late

Show by Renault, has been a concern raised over a number of years by RTÉ ClimateWatch,’

Mr Lumley wrote.

RTÉ ClimateWatch is a social-media account which monitors RTÉ’s coverage of climate-

change issues. It is not affiliated with the broadcaster.

Mr Lumley wrote to Ms Martin on July 5 last year at a time when RTÉ was facing huge public

scrutiny over previously undisclosed payments to former Late Late Show host Ryan Tubridy.

The payments related to €75,000 that Tubridy received from Renault when RTÉ reduced its

income from the car brand by the same amount.

The Renault payment controversy contributed to Tubridy’s departure from RTÉ last year.

An Taisce wanted further scrutiny of the broadcaster. Mr Lumley urged Ms Martin to

intervene and investigate conflicts of interest by employees and broadcasters so brand deals

would be governed better.

Mr Lumley’s letter referenced comments Tubridy made on his radio show in 2019 about

climate activist Greta Thunberg addressing a UN climate summit.

Tubridy’s comments, which he later clarified were well-intended, related to Ms Thunberg’s

age and whether her campaigning was good for her mental health and well-being.

An Taisce claimed issues around Tubridy receiving €75,000 in payments from Renault

brought his comments about Ms Thunberg into question.

Mr Lumley referenced 2FM presenter Lottie Ryan publicising a Toyota car in a video recorded

in RTÉ’s car park, and also highlighted deals Operation Transformation host Kathryn Thomas

had with Land Rover and Peugeot.

The minister’s private secretary responded to Mr Lumley three weeks later. She said Ms

Martin recognised RTÉ’s governance failings ‘undermined the trust of the public’ and agreed

there was a need for public service broadcasting to be ‘independent and have public interests

as its core motivation’.

The minister sought independent examinations of RTÉ’s accounts, contractor fees,

governance and culture, the private secretary said. However, An Taisce again wrote to the

minister as it felt these probes needed to go further.

‘We consider that this involvement of a number of presenters in car and SUV brand and sales

promotion create an irreconcilable conflict of interest, when the same presenter is involved

in any radio or TV discussion on climate action, traffic generation and congestion, resource

consumption of private motor vehicles, road pricing, air- and tyre-particle pollution, traffic

safety and other transport issues,’ Mr Lumley wrote.

‘It is our submission this constitutes a serious governance and competence issue with regard

to the statutory role of RTÉ as a public service broadcaster, and that this conflict of interest

requires comprehensive and independent examination, in addition to the three elements

outlined in your letter.’

This weekend a spokesman for RTÉ defended its climate-change coverage.

The spokesman said employees and contractors at the station were required to declare all

conflicts of interests and to seek approval for all external activities. Any conflicts of interest

were fully considered, in line with Comisiúin na Meán regulatory codes and RTÉ’s statutory

obligations to be objective and impartial.

‘Everyone working for or on behalf of RTÉ in the production of content — on all our platforms

— is required to comply with RTÉ’s journalism and content guidelines which are designed to

protect our editorial independence. Any suggestion that RTÉ’s editorial independence is

undermined due to perceived conflicts of interest is unfounded,’ he added.

‘RTÉ provides extensive coverage and analysis of climate change and related issues

throughout our television, radio and online services, with coverage embedded in many of

the daily stories and reports across these services.

‘Some of the major themes covered last year included coastal erosion, decarbonisation of

agriculture, modal shift in transport, active travel, decarbonising the electricity grid, offshore

wind, sustainable aviation fuels, rewetting/rewilding agriculture land, afforestation, species

protection and preservation.’”

16. The BBC guidance was reported on as follows (https://www.carbonbrief.org/exclusive-bbc-

issues-internal-guidance-on-how-to-report-climate-change/) as exhibited by Mr Foxe:

“The BBC, one of the world’s largest and most respected news organisations, has issued

formal guidance to its journalists on how to report climate change.

Carbon Brief has obtained the internal four-page ‘crib sheet’ sent yesterday to BBC

journalists via an email from Fran Unsworth, the BBC’s director of news and current affairs.

The crib sheet includes the BBC’s ‘editorial policy’ and ‘position’ on climate change.

All of the BBC’s editorial staff have also been invited to sign up for a one-hour ‘training

course on reporting climate change’. Carbon Brief understands this is the first time that the

BBC has issued formal reporting guidance to its staff on this topic.

The move follows a ruling earlier this year by Ofcom, the UK’s broadcasting regulator, which

found that BBC Radio 4’s flagship current-affairs programme Today had breached

broadcasting rules by ‘not sufficiently challenging’ Lord Lawson, the former Conservative

chancellor.

Lawson, who chairs a UK-based climate-sceptic lobby group, had made false claims about

climate change in an interview on Today in August 2017. Before Ofcom published its ruling

in April, the BBC had already apologised for breaching its general editorial guidelines during

the Lawson interview.

The broadcaster has faced repeated criticism over the past decade for enabling ‘false

balance’ on the topic of climate change, as well as for failing to fully implement the

recommendations of the BBC Trust’s 2011 review into the ‘impartiality and accuracy of the

BBC’s coverage of science’.

This is the email sent by Fran Unsworth to BBC journalists yesterday:

Dear all

After a summer of heatwaves, floods and extreme weather, environment stories

have become front of mind for our audiences. There are a number of important

related news events in the coming months – including the latest report from the UN

Intergovernmental Panel on Climate Change and Green Great Britain Week in

October – so there will be many more stories to cover. Younger audiences, in

particular, have told us they’d like to see more journalism on the issue.

With this in mind, we are offering all editorial staff new training for reporting on

climate change. The one hour course covers the latest science, policy, research,

and misconceptions to challenge, giving you confidence to cover the topic accurately

and knowledgeably.

Please book now by choosing a time from MyDevelopment (you’ll be prompted to

login first), searching ‘reporting climate change’ on MyDevelopment, or emailing

XXXXXX@bbc.co.uk to set up a tailored session for your team.

In the meantime, you can read the Climate Change for BBC News crib sheet, and

the Analysis and Research website by searching ‘climate change’ which cover the

basics.

I hope you find the training useful.

Fran

If a journalist clicks on the email’s link to book a place on the course, they are taken to this

page on the BBC intranet:

…

(To avoid the risk of personal abuse or intimidation, Carbon Brief has decided to redact the

email address of the BBC employee running the course. Carbon Brief can confirm, though,

that the individual is not one of the BBC journalists who report on climate change.)

The crib sheet, below, includes a summary of the ‘basics’ on climate science, the BBC’s

‘editorial policy’ and ‘position’ on climate change, and a precis of domestic climate policies

in the UK as well as at the international level.

This is the document’s wording for the BBC’s ‘editorial policy’ and ‘position’ on climate

change:

Editorial Policy

Climate change has been a difficult subject for the BBC, and we get coverage of it

wrong too often. The climate science community is clear that humans have changed

the climate, but specifically how is more difficult to evidence. For instance, there is

very high confidence that there will be more extreme events – floods, droughts,

heatwaves etc. – but attributing an individual event, such as the UK’s winter floods

in 2013/2014, to climate change is much less certain.

We must also be careful to distinguish between the statements. For example:

‘Climate change makes this kind of event both more frequent and more severe,’ and

‘Climate change caused this event’. The former uses previous scientific evidence to

say ‘it is likely’ the event is the result of climate change, whereas the latter may be

making an assertion without the proof to back it up.

What’s the BBC’s position?

• Man-made climate change exists: If the science proves it we should report

it. The BBC accepts that the best science on the issue is the IPCC’s position,

set out above.

• Be aware of ‘false balance’: As climate change is accepted as happening,

you do not need a ‘denier’ to balance the debate. Although there are those

who disagree with the IPCC’s position, very few of them now go so far as to

deny that climate change is happening. To achieve impartiality, you do not

need to include outright deniers of climate change in BBC coverage, in the

same way you would not have someone denying that Manchester United

won 2-0 last Saturday. The referee has spoken. However, the BBC does

not exclude any shade of opinion from its output, and with appropriate

challenge from a knowledgeable interviewer, there may be occasions to hear

from a denier.

• There are occasions where contrarians and sceptics should be included

within climate change and sustainability debates. These may include, for

instance, debating the speed and intensity of what will happen in the future,

or what policies government should adopt. Again, journalists need to be

aware of the guest’s viewpoint and how to challenge it effectively. As with

all topics, we must make clear to the audience which organisation the

speaker represents, potentially how that group is funded and whether they

are speaking with authority from a scientific perspective – in short, making

their affiliations and previously expressed opinions clear.

The document concludes with a list of ‘common misconceptions’ produced by the Science

Media Centre (SMC). The list appears to be an adapted update of a document (pdf) published

by the SMC in 2012.

The SMC was established in 2002 and seeks to ‘provide, for the benefit of the public and

policymakers, accurate and evidence-based information about science and engineering

through the media, particularly on controversial and headline news stories when most

confusion and misinformation occurs’.

(For the same reasons stated above, Carbon Brief has decided to remove the metadata

showing which BBC employee created the original document.)

Carbon Brief asked Prof Ed Hawkins to examine the crib sheet. Hawkins is a professor of

climate science at the University of Reading and a lead author of the Intergovernmental

Panel on Climate Change (IPCC)’s next assessment report due in 2021-22. Hawkins makes

the follow observations:

• The IPCC report is not being updated later this year. It is publishing a special report

on 1.5C. But this is minor detail.

• The definition of ‘climate change’ could be improved, but isn’t wrong.

• The paragraph on projections is confusing and could be clarified to discuss that the

level of future warming depends on our choices on future emissions. I also do not

agree that there is a consensus on 2C of warming being ‘irreversible’.

• The ‘implications’ section could do with a mention of heatwaves and intense rainfall.

• The ‘editorial policy’ could be more explicit about what would constitute false balance

in its coverage. In the past, too many inaccurate statements made about climate

science have not been effectively challenged by the interviewer.

• Regarding the UK’s domestic stage, it could mention that emission cuts are already

being made.

Hawkins adds:

‘Overall, it’s great to see the BBC doing this. This set of BBC guidelines is long overdue.

There have been too many occasions when the BBC’s audience has been misled over the

realities of climate change.’

The BBC said it had nothing further to add in response to Carbon Brief’s request for

comment.”

17. What is clear is that false balance (“bothsidesism” in contemporary English) is a serious

problem, not just in relation to climate denial but in any other context where false narratives are

brought forward to undermine factual information generally, or science in particular, such as

nonsense theories like vaccine denialism or intelligent design. It is also clear that public broadcasters

have a key role to play in public understanding of science and environmental matters.

18. Presenting both sides sounds reasonable but only if there are two sides of equal scientific

validity. That isn’t the case in relation to climate. In the not unrelated context of the bogus

unscientific theory of intelligent design, Richard Dawkins and Jerry Coyne have written

(https://www.theguardian.com/science/2005/sep/01/schools.research):

“It sounds so reasonable, doesn't it? Such a modest proposal. Why not teach ‘both sides’

and let the children decide for themselves? As President Bush said, ‘You're asking me

whether or not people ought to be exposed to different ideas, the answer is yes.’ At first

hearing, everything about the phrase ‘both sides’ warms the hearts of educators like

ourselves.

...

Intelligent design is not ... a scientific argument at all, but a religious one. It might be worth

discussing in a class on the history of ideas, in a philosophy class on popular logical fallacies,

or in a comparative religion class on origin myths from around the world. But it no more

belongs in a biology class than alchemy belongs in a chemistry class, phlogiston in a physics

class or the stork theory in a sex education class. In those cases, the demand for equal

time for ‘both theories’ would be ludicrous. Similarly, in a class on 20th-century European

history, who would demand equal time for the theory that the Holocaust never happened?

...

If ID really were a scientific theory, positive evidence for it, gathered through research,

would fill peer-reviewed scientific journals. This doesn't happen. It isn't that editors refuse

to publish ID research. There simply isn't any ID research to publish. Its advocates bypass

normal scientific due process by appealing directly to the non-scientific public and - with

great shrewdness - to the government officials they elect.”

19. Substitute denial of anthropogenic climate change for intelligent design and we have the

problem that is created if public broadcasters were to give balance to science and ignorance. The

vigilance of NGOs such as the requester here is essential to ensure that media organisations don’t

become the equivalent of purveyors of the “stork theory”, with potentially significant consequences

for public support for the inevitably painful steps that are going to be required to address the climate

emergency. How painful? This is a matter already well-rehearsed in the public domain and in

caselaw, but what’s clear is that the Intergovernmental Panel on Climate Change (IPCC) has stated

that to meet climate targets, rapid, deep and in most cases immediate cuts in GHG emissions are

required. That isn’t happening at anything remotely like the required scale and pace.

20. Perhaps it’s not illegitimate to note by way of reminder that Toole v. Minister for Housing,

Local Government and Heritage I (No. 5) [2023] IEHC 590, [2023] 10 JIC 2705 (Unreported, High

Court, 27th October 2023) cites the Sixth IPCC assessment report

(https://www.ipcc.ch/assessment-report/ar6/) (at para. 9). As stated in Toole v. Minister for

Housing, Local Government and Heritage II [2024] IEHC 610 (Unreported, High Court, 1st November

2024), the summary for policymakers

(https://www.ipcc.ch/report/ar6/syr/downloads/report/IPCC_AR6_SYR_SPM.pdf) includes the

following:

“A.1 Human activities, principally through emissions of greenhouse gases, have

unequivocally caused global warming, with global surface temperature reaching 1.1°C above

1850-1900 in 2011-2020. Global greenhouse gas emissions have continued to increase,

with unequal historical and ongoing contributions arising from unsustainable energy use,

land use and land-use change, lifestyles and patterns of consumption and production across

regions, between and within countries, and among individuals (high confidence). ...

A.2 Widespread and rapid changes in the atmosphere, ocean, cryosphere and biosphere

have occurred. Human-caused climate change is already affecting many weather and

climate extremes in every region across the globe. This has led to widespread adverse

impacts and related losses and damages to nature and people (high confidence). Vulnerable

communities who have historically contributed the least to current climate change are

disproportionately affected (high confidence). ...

A.3 Adaptation planning and implementation has progressed across all sectors and regions,

with documented benefits and varying effectiveness. Despite progress, adaptation gaps

exist, and will continue to grow at current rates of implementation. Hard and soft limits to

adaptation have been reached in some ecosystems and regions. Maladaptation is happening

in some sectors and regions. Current global financial flows for adaptation are insufficient

for, and constrain implementation of, adaptation options, especially in developing countries

(high confidence). ...

A.4 Policies and laws addressing mitigation have consistently expanded since AR5. Global

GHG emissions in 2030 implied by nationally determined contributions (NDCs) announced

by October 2021 make it likely that warming will exceed 1.5°C during the 21st century and

make it harder to limit warming below 2°C. There are gaps between projected emissions

from implemented policies and those from NDCs and finance flows fall short of the levels

needed to meet climate goals across all sectors and regions. (high confidence) ...

B.1 Continued greenhouse gas emissions will lead to increasing global warming, with the

best estimate of reaching 1.5°C in the near term in considered scenarios and modelled

pathways. Every increment of global warming will intensify multiple and concurrent hazards

(high confidence). Deep, rapid, and sustained reductions in greenhouse gas emissions would

lead to a discernible slowdown in global warming within around two decades, and also to

discernible changes in atmospheric composition within a few years (high confidence). ...

B.2 For any given future warming level, many climate-related risks are higher than assessed

in AR5, and projected long-term impacts are up to multiple times higher than currently

observed (high confidence). Risks and projected adverse impacts and related losses and

damages from climate change escalate with every increment of global warming (very high

confidence). Climatic and non-climatic risks will increasingly interact, creating compound

and cascading risks that are more complex and difficult to manage (high confidence). ...

B.3 Some future changes are unavoidable and/or irreversible but can be limited by deep,

rapid, and sustained global greenhouse gas emissions reduction. The likelihood of abrupt

and/or irreversible changes increases with higher global warming levels. Similarly, the

probability of low-likelihood outcomes associated with potentially very large adverse impacts

increases with higher global warming levels. (high confidence) ...

B.5 Limiting human-caused global warming requires net zero CO2 emissions. Cumulative

carbon emissions until the time of reaching net zero CO2 emissions and the level of

greenhouse gas emission reductions this decade largely determine whether warming can be

limited to 1.5°C or 2°C (high confidence). Projected CO2 emissions from existing fossil fuel

infrastructure without additional abatement would exceed the remaining carbon budget for

1.5°C (50%) (high confidence)....

B.6 All global modelled pathways that limit warming to 1.5°C (>50%) with no or limited

overshoot, and those that limit warming to 2°C (>67%), involve rapid and deep and, in most

cases, immediate greenhouse gas emissions reductions in all sectors this decade. Global

net zero CO2 emissions are reached for these pathway categories, in the early 2050s and

around the early 2070s, respectively. (high confidence) ...

B.7 If warming exceeds a specified level such as 1.5°C, it could gradually be reduced again

by achieving and sustaining net negative global CO2 emissions. This would require

additional deployment of carbon dioxide removal, compared to pathways without overshoot,

leading to greater feasibility and sustainability concerns. Overshoot entails adverse impacts,

some irreversible, and additional risks for human and natural systems, all growing with the

magnitude and duration of overshoot. (high confidence) ...

Urgency of Near-Term Integrated Climate Action

C.1 Climate change is a threat to human well-being and planetary health (very high

confidence). There is a rapidly closing window of opportunity to secure a liveable and

sustainable future for all (very high confidence). Climate resilient development integrates

adaptation and mitigation to advance sustainable development for all, and is enabled by

increased international cooperation including improved access to adequate financial

resources, particularly for vulnerable regions, sectors and groups, and inclusive governance

and coordinated policies (high confidence). The choices and actions implemented in this

decade will have impacts now and for thousands of years (high confidence). ...

C.2 Deep, rapid, and sustained mitigation and accelerated implementation of adaptation

actions in this decade would reduce projected losses and damages for humans and

ecosystems (very high confidence), and deliver many co-benefits, especially for air quality

and health (high confidence). Delayed mitigation and adaptation action would lock in high-

emissions infrastructure, raise risks of stranded assets and cost-escalation, reduce

feasibility, and increase losses and damages (high confidence). Near-term actions involve

high up-front investments and potentially disruptive changes that can be lessened by a range

of enabling policies (high confidence). ...

C.6 Effective climate action is enabled by political commitment, well-aligned multilevel

governance, institutional frameworks, laws, policies and strategies and enhanced access to

finance and technology. Clear goals, coordination across multiple policy domains, and

inclusive governance processes facilitate effective climate action. Regulatory and economic

instruments can support deep emissions reductions and climate resilience if scaled up and

applied widely. Climate resilient development benefits from drawing on diverse knowledge.

(high confidence) ...”

Facts in relation to position in other EEA states and the UK

21. The AIE directive is a text with EEA relevance: https://www.efta.int/eea-lex/32003l0004.

Thus the law and practice of EU and other EEA members as well as former members is relevant –

potentially 30 countries excluding Ireland. RTÉ obtained information from other EBU members in

February 2024 on practice, and with some updates and adding the UK, it shows no evidence that

most countries treat public broadcasters as public authorities under the directive. The current

position insofar as information available to me indicates is as follows. Note that Demark is divided

in two on the basis that one public broadcaster appears to be regarded as within the definition and

another one is not. The total applicability of the AIE directive in this table is EU 27 + 3 other EEA +

1 former EU member (UK) minus Ireland (position to be determined in these proceedings) =30.

EEA member states/ former Number of states

member state

States where available Austria, 19.5

information indicates an Bulgaria,

understanding that public Czech Republic

service broadcaster is not a Denmark (TV2),

public authority Estonia,

Finland,

France,

Greece,

Hungary,

Italy,

Latvia,

Lithuania,

Luxembourg

Netherlands,

Poland,

Romania,

Slovakia,

Spain,

Sweden

United Kingdom

Countries where available Belgium 8.5

information indicates an Croatia

understanding that public Cyprus

service broadcaster is a public Denmark (DR)

authority Germany

Iceland

Norway

Portugal

Slovenia

States in respect of which no Liechtenstein 2

information received Mata

Total 30

Facts in relation to the request

22. A request for access to information was made by Mr Ken Foxe of Right to Know CLG on 19th

July 2021. The following categories of documents were sought:

(i) Copies of any guidance, training or other such advice issued to RTÉ journalists on

how to communicate/cover climate change to audience, with this part of the request

to cover the period from 1st January 2020 to the date of receipt of the request,

being 19th July 2021.

(ii) A record of how many representations RTÉ received regarding its coverage of climate

change from 1st January 2020 to 19th July 2021.

(iii) A copy of all representations or correspondence received by RTÉ relating to their

coverage of climate change issues in 2021. In respect of this category, Mr Foxe

indicated that he would accept a representative sample of roughly 25 items of

correspondence should there be a large volume of correspondence.

23. Insofar as concerns category (i), Copies of any guidance, training or other such advice issued

to RTÉ journalists on how to communicate/cover climate change to audience, with this part of the

request to cover the period from 1st January 2020 to the date of receipt of the request, being 19th

July 2021, no basis has been shown to say that this may relate to privileged journalistic activity.

24. Insofar as concerns category (ii), a record of how many representations RTÉ received

regarding its coverage of climate change from 1st January 2020 to 19th July 2021, such a record in

itself does not relate to privileged journalistic activity.

25. Insofar as concerns category (iii), a copy of all representations or correspondence received

by RTÉ relating to their coverage of climate change issues in 2021, an examination of these

documents would be required and findings made as to whether they involve journalistic privilege, if

that were to be an issue. In respect of this category, Mr Foxe indicated that he would accept a

representative sample of roughly 25 items of correspondence should there be a large volume of

correspondence.

26. Generally the affidavit evidence wasn’t contradicted but we must subtract from it averments

that while evidential in form are legal or argumentative in substance.

27. I accept Mr Foxe’s averment that this was not intended to impinge on journalistic freedom.

Whether a request actually so impinges would be a matter for decision in adjudicating on any specific

request.

28. I accept Mr Dowling’s evidence that RTÉ does not have a record (that is, as a stand-alone

document) of the number of representations received by it regarding its coverage of climate change

in 2020 or 2021. I accept his evidence that the creation of such a record would require extensive

work by RTÉ. Whether that amounts to a disproportionate burden is a matter for evaluative

judgment if that arises.

29. On the same basis I accept his evidence as follows:

“41. In this context, it can be noted that RTÉ receives a multiplicity of representations on

a wide range of issues, including some made in respect of issues relating to climate change.

There is no single unit to which representations on individual issues such a climate change

are directed. RTÉ encourages people to contact programmes directly, which many do on a

daily basis. In addition, people also get in contact with their views via feedback@rte.ie and

info@rte.ie, which are managed by the Information Office. People can, and do, contact

individual reporters, programme makers and senior executives such as the Head of News

and Current Affairs and the Director General with their views on a wide range of issues.

42. Therefore, there are a wide range of individuals, programmes and sections which

potentially receive representations on climate change. This includes the newsroom,

individual programmes on television and radio, individual staff in both editorial and corporate

divisions. This demonstrates the difficulty in creating a single record which identifies the

number of representations received by RTÉ on any single topic. To be in a position to create

an accurate record, it would be necessary to engage with every individual who may have

received such representation to try to ascertain whether they held any records or information

which fell within the scope of the request.

43. This would involve engagement with many hundreds of individuals and would require

a review of each of their email inboxes, along with any hard copy correspondence, including

journalists notes and notebooks retained by them. It would also require a close review of

the contents of any representations to identify whether they addressed issues relating to

climate change, irrespective of whether that term was used or not. Further, as noted to the

Commissioner, this process would be impacted by the fact that in 2021 RTÉ changed its

computer operating system, a change which included the deletion of non-essential records.

44. This exercise would be required to be carried out simply for the purpose of creating

a record of the number of representations received in respect of climate change. It would

then be necessary to carry out a separate review of each representation to identify whether

it is subject to disclosure or comes within one of the exemptions in the AIE Regulations. This

would require the use of significant resources and would be disruptive to the core functions

of RTÉ.

45. The difficulties in collating records which fall within the scope of the request made is

illustrated by the exercise completed by RTÉ for the purpose of releasing a sample of

representations to Right to Know. It was explained to the Commissioner that in order to try

to identify representations which were made to RTÉ on the issue of climate change, the

Information Office was asked to carry out a review of the two operating email accounts which

allow anyone to contact RTÉ. A search of those email inboxes using the phrase ‘climate

change’ resulted in a total of 614 emails being captured. For the purposes of releasing a

sample of representations to Right to Know, 40 emails were randomly selected and a sample

were released from that sub-set.

46. This demonstrates the volume of records which could be generated if it was

necessary to extend the searches to any person or programme who may have received a

representation in respect of climate change. As noted above, all of those records would then

have to be reviewed to confirm whether the representation was, in fact, relating to climate

change and, if so, whether it was subject to any exemption. As set out in the previous

paragraph, the search that was done was only conducted using one search term. If

additional search terms were used, it would inevitably result in further records being

returned, thus increasing the scope of the review exercise.”

30. In order to identify records, RTÉ carried out searches of inboxes associated with two email

addresses, which are the main avenues to contact RTÉ, and of the telephone log of the information

office, using the search term “climate change”.

31. By decision dated 17th August 2021, RTÉ made an initial decision, authored by Mr Dowling,

who replied to Mr Foxe, indicating that RTÉ did not have any documents in the first two categories.

In respect of the third category, RTÉ released a number of documents but noted that this was not

done in furtherance of any particular legal duty, and indicated that this was a pragmatic decision

taken by RTÉ and not intended to create any precedent. RTÉ reserved its rights in respect of all

issues concerning the application of the AIE regulations.

32. The records released by RTÉ were a sample of documents which fell within (c) of the request

made by Right to Know, with personal information redacted. They were not a “representative”

sample because one could only assert that if one had a knowledge of the entire group from which

representatives were selected.

33. By email dated 17th August 2021, Mr Foxe sought a review of the initial RTÉ decision. In

respect of the categories, Mr Foxe’s response was as follows:

(i) in relation to Category 1, he accepted that there were no such documents;

(ii) in relation to Category 2, Mr Foxe contended that the AIE regulations do not require

a requester to seek records, and that, in his opinion, RTÉ could provide the requested

information “with a minimum of effort”; and

(iii) finally, in relation to Category 3, Mr Foxe argued that redactions had been made to

the records “with no detailed explanation or justification of why this has happened”.

34. An internal review of the decision was carried out by Ms Eleanor Bleahene. By decision dated

14th September 2021, Ms Bleahene upheld the decision on the second and third categories,

concluding that the information that came within the third category was not environmental

information.

35. On 29th September 2021, Right to Know lodged an appeal against the decision of RTÉ with

the commissioner pursuant to art. 12 of the AIE regulations.

36. By email dated 12th October 2021, the commissioner informed RTÉ that the commissioner

had accepted the appeal from Mr Foxe and requested certain information and submissions from RTÉ.

37. By email of 10th November 2021, RTÉ provided a submission to the commissioner in respect

of the appeal. The submission contended, inter alia, that RTÉ is not a public authority within the

meaning of art. 3 of the AIE regulations.

38. Also by emails of 10th November 2021, RTÉ provided the commissioner with a copy of the

records which had been released to Right to Know. Initially, redacted versions of the records were

sent and subsequently un-redacted versions of the records were provided to the commissioner.

39. By letter dated 5th December 2022, Ms Emma Libreri of the Office of the Commissioner

wrote to RTÉ indicating that she had been assigned to the appeal as investigator. Ms Libreri further

raised queries, in respect of which any further submissions were to be filed by 19th December 2022.

The relevant queries are the first five:

(i) whether RTÉ wished to maintain the same position in respect of its argument that it

was not a public authority within the meaning of the AIE regulations as advanced in

OCE-108819-S8Z3Y7;

(ii) similarly, Ms Libreri queried whether RTÉ was adopting the same position as in OCE-

108819-S8Z3Y7 in respect of whether the information sought constituted

environmental information within the meaning of the AIE regulations;

(iii) what steps would be required of RTÉ to provide an estimate of the number of

representations received by RTÉ in the timeframe specified;

(iv) what steps were taken by RTÉ to identify whether information within the scope of

part (b) of the request were held by it; and

(v) Ms Libreri noted that the commissioner had considered the meaning of “material

form” in the AIE regulations in OCE-109706-Y8Y0V3 (Logue & An Bord Pleanála) and

queried whether RTÉ had any further comments to make in that respect.

40. Following correspondence between Mr Dowling and Ms Libreri, on behalf of the

commissioner, on 15th December 2022 and 16th December 2022, the deadline for RTÉ to file

submissions was extended to 19th January 2023.

41. RTÉ filed submissions in respect of the appeal on 19th January 2023.

42. Subsequently, the commissioner delivered a written decision dated 30th November 2023.

The decision was notified to RTÉ on 1st December 2023.

43. The decision itself summarises the outcome as follows:

“Issue: 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.

Summary of Commissioner's Decision: The Commissioner found that (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 does not provide grounds for refusal of the request.”

44. There are a number of other requests of relevance:

(i) A previous decision of the commissioner which addressed the question of whether

RTÉ is a public authority. That decision issued in June 2022 under reference OCE-

108819-S8Z3Y7, made on remittal following the decision in Right to Know CLG v.

Commissioner for Environmental Information and RTÉ [2021] IEHC 353

(Unreported, High Court, Barrett J., 20th April 2021). The commissioner determined

that RTÉ was a public authority within the meaning of each of paragraphs (a), (b)

and (c) of the definition of environmental information. This decision was not

appealed by RTÉ for various reasons (RTÉ did not so object initially, plus the

information had been released anyway so the matter was moot). But that doesn’t

prevent RTÉ from making the objection in the present case.

(i) Another pending appeal which has not yet been determined by the commissioner –

reference number OCE-111364-K0R7J3. In that context RTÉ disputed whether it

was a public authority – something which prompted the commissioner to consider

that in the OCE-108819-S8Z3Y7 matter.

(ii) There are four other pending appeals where this issue arises which are currently

pending before the commissioner.

45. It is also relevant to RTÉ’s objections to the commissioner seeing prima facie privileged

material that in another case, the commissioner insisted on seeing papers even though prima facie

they were privileged – in that case requests for legal advice – see para. 15 of Mr X and Forestry

Appeals Committee OCE-144739-W3Z9K6 (https://ocei.ie/en/ombudsman-decision/bcc91-mr-x-

and-forestry-appeals-committee/).

Procedural history

46. The appeal was lodged in the High Court on 30th January 2024.

47. The appeal was first returnable before the High Court on 12th February 2024.

48. Points of opposition were filed by the commissioner on 19th April 2024.

49. Points of opposition were filed by the notice party on 25th April 2024.

50. On 29th April 2024, the appeal was listed for hearing on 13th November 2024.

51. Legal submissions were filed by RTÉ on 30th September 2024.

52. Legal submissions were filed by the commissioner on 18th October 2024.

53. Legal submissions were filed by the notice party on 24th October 2024.

54. The matter was heard on 13th and 14th November 2024. It was then adjourned to 18th

November 2024 for a further affidavit and an analysis by counsel of the relevant factual situation in

comparable broadcasters across the EEA. At that point, the possibility of further submissions on

discrete issues was raised and the matter was adjourned to 2nd December 2024 for that purpose,

with the affidavit to be on hold pending further information form Malta and Liechtenstein.

55. Ultimately the matter was listed on 16th December 2024 at which point additional

information was received and judgment was reserved subject to the parties adding a table of the

evidence of practice in the relevant jurisdictions if such could be prepared imminently.

Relief sought

56. The reliefs sought in the notice of motion are as follows:

“1. An Order setting aside the decision of the Commissioner for Environmental

Information made under Article 12(5) of the European Communities (Access to Information

on the Environment) Regulations 2007 - 2018 under Reference OCE-113639-G4G9Z9 dated

30 November 2023 and issued on 1 December 2023.

2. Such Declarations of the legal rights and/or legal position of the Appellant and/or

persons similarly situated and/or the legal duties and/or legal position of the Respondent as

the Court shall consider appropriate.

3. Such further or other Order as this Honourable Court may deem fit.

4. If necessary, a Declaration that sections 3 and 4 of the Environment (Miscellaneous

Provisions) Act 2011, and/or the interpretative obligation set out in Case C-470/16 North

East Pylon Pressure Campaign Limited v. An Bord Pleanála whereby 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.

5. An Order for the costs of and incidental to this Appeal.”

Grounds of appeal

57. The core grounds of appeal are as follows:

“1. The Commissioner for Environmental Information erred in law and mis-interpreted

the definition of a public authority in Article 3 of the European Communities (Access to

Information on the Environment) Regulations 2007 – 2018 as amended in concluding that

Raidió Teilifís Éireann is a public authority for the purposes of the AIE Regulations and, in

particular, within the meaning of paragraph (a) of that definition.

2. The Commissioner for Environmental Information erred in law and mis-interpreted

the definition of environmental information in Article 3(1) of the European Communities

(Access to Information on the Environment) Regulations 2007 – 2018 as amended in

concluding that the records which were the subject of the request made by Right to Know

CLG were environmental information within the meaning of Article 3(1) of those Regulations.

The Commissioner for Environmental Information erred in law in concluding that the records

requested by Right to Know CLG was information on a factor within the meaning of paragraph

(b) of the definition of environmental information and/or was information on a measure

within the meaning of paragraph (c) of the definition of environmental information.

3. The Commissioner for Environmental Information erred in law and mis-interpreted

the meaning of the term ‘material form’ in the definition of environmental information in

Article 3 of the European Communities (Access to Information on the Environment)

Regulations 2007 – 2018 as amended.

4. The Commissioner for Environmental Information erred in law, mis-applied and

failed to properly interpret Article 9(2)(a) of the European Communities (Access to

Information on the Environment) Regulations 2007 – 2018 as amended and wrongly

concluded that Raidió Teilifís Éireann was not entitled to rely on that exemption when the

matter was remitted to it for further consideration.”

Procedure for appeal – art. 6(2)

58. Article 9(1) of the Aarhus convention provides:

“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.”

59. Article 6 of the AIE directive provides for recourse to review:

“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.”

60. While art. 9(1) of Aarhus has a requirement of expedition, the EU legislature has transferred

that to an internal type review created in art. 6(1) of the directive and otherwise implemented in

arts. 6(2) and 9(1). In the Irish context, the internal review corresponds to art. 6(1) of the directive

and the appeal to the commissioner corresponds to art. 6(2). Access to the court is either under

art. 6(2) or by way of gold-plating of EU requirements, something which we don’t need to decide for

present purposes.

61. In Case ACCC/C/2016/141 (Ireland), the Aarhus Convention Compliance Committee has

decided that the court is also acting under the first sub-paragraph of art. 9(1) of Aarhus, and is

subject to a requirement of timeliness under art. 9(4), a requirement that was not being complied

with in Ireland as of the date of that finding (https://unece.org/sites/default/files/2021-

04/ece_mp.pp_c.1_2021_8_eng.pdf).

62. The appeal is brought to the court against the decision of the respondent under art. 13 of

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

“Appeal to High Court on point of law

13. (1) A party to an appeal under article 12 or any other person affected by the decision of

the Commissioner may appeal to the High Court on a point of law from the decision.

(2) An appeal under sub-article (1) shall be initiated not later than 2 months after notice of

the decision under article 12(5) was given to the party to the appeal or other person affected.

(3) Where an appeal under this article by an applicant or other person affected is dismissed

by the High Court or, on appeal from that Court, the Supreme Court, the Court may order

that some or all of the costs in relation to the appeal of any person affected be paid by the

public authority concerned, if it considers that the point of law concerned was of exceptional

public importance, and but for this sub-article, would not so order.

(4) In an appeal under this article to the High Court or, on appeal from that Court, the

Supreme Court, the Court shall, where appropriate, specify the period within which effect

shall be given to its order.”

63. The appeal process is discussed in Deely v. Information Commissioner [2001] IEHC 91,

[2001] 3 I.R. 439 (McKechnie J.); Sheedy v. Information Commissioner [2005] IESC 35, [2005] 2

I.R. 272, [2005] 2 I.L.R.M. 374 (Fennelly J., Kearns J.); Fitzgibbon v. Law Society [2014] IESC 48,

[2015] 1 I.R. 516, [2016] 2 I.L.R.M. 202 (Denham C.J., McKechnie J., Clarke J.); and Minch v.

Commissioner for Environmental Information [2017] IECA 223, [2017] 7 JIC 2807 (Unreported,

Court of Appeal, Hogan J., 28th July 2017). Insofar as the commissioner demands curial deference

relying on Westwood v. Information Commissioner [2014] IEHC 375, [2015] 1 I.R. 489 (Cross J.);

F.P. v. Information Commissioner [2019] IECA 19, [2019] 1 JIC 3003 (Unreported, Court of Appeal,

Peart J., 30th January 2019); Minister for Communications, Energy and Natural Resources v. The

Information Commissioner [2020] IESC 57, [2022] 1 I.R. 1, [2021] 2 I.L.R.M. 81 (Baker J.), there

isn’t a more restricted standard of review on an “appeal” as opposed to that applying to judicial

review. Nor would that be logical. Nor is there a special standard of review for the commissioner.

The standard has been discussed in other cases (see the caselaw cited in O’Donnell v. An Bord

Pleanála [2023] IEHC 594, [2023] 11 JIC 0102 (Unreported, High Court, 1st November 2023);

Friends of the Irish Environment v. Minister for Housing, Local Government, Heritage & Ors. [2024]

IEHC 588 (Unreported, High Court, 17th October 2024) (where the point was made that there was

no special standard for review of ministerial directions – it almost seems that in every case somebody

claims there is a special standard of review – not a correct approach):

(i) review of issues of law is non-deferential;

(ii) review of mixed questions of fact and law is somewhat deferential; or

(iii) review of findings of fact is highly deferential.

64. If one is to ask how can a finding of fact even arise when the appeal to the court is meant

to be confined to law, the answer is that an unreasonable finding of fact involves a legally cognisable

error, and even an ostensibly clear finding of fact may include a methodological issue or a procedural

issue which itself is an issue of law subject to non-deferential review. Furthermore, in the case of

contested facts, the court to which the appeal is brought must in the first instance view the matter

through the prism of the evidence and the extent to which it is contested.

65. Ultimately there is no disputed issue of domestic or EU law that requires resolution under

this heading, leaving aside the challenging question as to what are the implications of the need to

prevent further delay in breach of EU law – an issue to which we return under the third question

below.

EU law

66. Article 47 of the EU Charter of Human Rights provides:

“Article 47 - Right to an effective remedy and to a fair trial

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has

the right to an effective remedy before a tribunal in compliance with the conditions laid down

in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent

and impartial tribunal previously established by law. Everyone shall have the possibility of

being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid

is necessary to ensure effective access to justice.”

67. The United Nations Economic Commission for Europe (UNECE) Convention on Access to

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

(done at Aarhus on 25 June 1998, entered into force 30 October 2001), 2161 UNTS 447 (the Aarhus

Convention) was adopted on behalf of the EU which inter alia provides for access to information as

one of the three pillars of the convention alongside public participation and access to justice.

68. Article 9 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.

2. Each Party shall, within the framework of its national legislation, ensure that members of

the public concerned

(a) Having a sufficient interest

or, alternatively,

(b) Maintaining impairment of a right, where the administrative

procedural law of a Party requires this as a precondition, have access to a review procedure

before a court of law and/or another independent and impartial body established by law, to

challenge the substantive and procedural legality of any decision, act or omission subject to

the provisions of article 6 and, where so provided for under national law and without

prejudice to paragraph 3 below, of other relevant provisions of this Convention.

What constitutes a sufficient interest and impairment of a right shall be determined in

accordance with the requirements of national law and consistently with the objective of

giving the public concerned wide access to justice within the scope of this Convention. To

this end, the interest of any non-governmental organization meeting the requirements

referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of

subparagraph (a) above. Such organizations shall also be deemed to have rights capable of

being impaired for the purpose of subparagraph (b) above.

The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review

procedure before an administrative authority and shall not affect the requirement of

exhaustion of administrative review procedures prior to recourse to judicial review

procedures, where such a requirement exists under national law.

3. In addition and without prejudice to the review procedures referred to in paragraphs 1

and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in

its national law, members of the public have access to administrative or judicial procedures

to challenge acts and omissions by private persons and public authorities which contravene

provisions of its national law relating to the environment.

4. In addition and without prejudice to paragraph 1 above, the procedures referred to in

paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including

injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive.

Decisions under this article shall be given or recorded in writing. Decisions of courts, and

whenever possible of other bodies, shall be publicly accessible.

5. In order to further the effectiveness of the provisions of this article, each Party shall

ensure that information is provided to the public on access to administrative and judicial

review procedures and shall consider the establishment of appropriate assistance

mechanisms to remove or reduce financial and other barriers to access to justice.”

69. The Aarhus Convention Implementation Guide

(https://unece.org/DAM/env/pp/Publications/Aarhus_Implementation_Guide_interactive_eng.pdf)

provides useful interpretative assistance, although we also need to be alert to differences in wording

between the convention and the directive.

70. Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on

the environment initially provided for access to information on the environment.

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

public access to environmental information repealed and replaced Directive 90/313.

72. Article 2 provides:

“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.”

73. Article 6 provides:

“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.”

CJEU caselaw

74. In the judgment of 12 June 2003, Eva Glawischnig v Bundesminister für soziale Sicherheit

und Generationen, C-316/01, ECLI:EU:C:2003:343 the CJEU decided:

“Article 2(a) of Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to

information on the environment is to be interpreted as meaning that the name of the

manufacturer and the product description of foodstuffs which have been the subject of

administrative measures for controlling compliance with Council Regulation (EC) No 1139/98

of 26 May 1998 concerning the compulsory indication [in] the labelling of certain foodstuffs

produced from genetically modified organisms of particulars other than those provided for

in Directive 79/112/EEC, as amended by Commission Regulation (EC) No 49/2000 of 10

January 2000, the number of administrative penalties imposed following those measures,

and the producers and products concerned by such penalties do not constitute information

relating to the environment within the meaning of that provision.”

75. In the judgment of 13 April 2005, Verein für Konsumenteninformation v Commission of the

European Communities, T-2/03, ECLI:EU:T:2005:125, a refusal of information as manifestly

unreasonable was annulled.

76. In the judgment of 28 July 2011, Office of Communications v Information Commissioner, C-

71/10, ECLI:EU:C:2011:525, the CJEU held:

“Article 4(2) of 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 must be interpreted as meaning that, where a public authority holds

environmental information or such information is held on its behalf, it may, when weighing

the public interests served by disclosure against the interests served by refusal to disclose,

in order to assess a request for that information to be made available to a natural or legal

person, take into account cumulatively a number of the grounds for refusal set out in that

provision.”

77. In the judgment of 19 December 2013, Fish Legal and Emily Shirley v Information

Commissioner and Others, C-279/12, ECLI:EU:C:2013:853 (Grand Chamber), the CJEU decided:

(i) “In order to determine whether entities such as United Utilities Water plc, Yorkshire

Water Services Ltd and Southern Water Services Ltd can be classified as legal

persons which perform ‘public administrative functions’ under national law, within

the meaning of Article 2(2)(b) of 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, it should be examined whether those

entities are vested, under the national law which is applicable to them, with special

powers beyond those which result from the normal rules applicable in relations

between persons governed by private law.

(ii) Undertakings, such as United Utilities Water plc, Yorkshire Water Services Ltd and

Southern Water Services Ltd, which provide public services relating to the

environment are under the control of a body or person falling within Article 2(2)(a)

or (b) of Directive 2003/4, and should therefore be classified as ‘public authorities’

by virtue of Article 2(2)(c) of that directive, if they do not determine in a genuinely

autonomous manner the way in which they provide those services since a public

authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert

decisive influence on their action in the environmental field.

(iii) Article 2(2)(b) of Directive 2003/4 must be interpreted as meaning that a person

falling within that provision constitutes a public authority in respect of all the

environmental information which it holds. Commercial companies, such as United

Utilities Water plc, Yorkshire Water Services Ltd and Southern Water Services Ltd,

which are capable of being a public authority by virtue of Article 2(2)(c) of the

directive only in so far as, when they provide public services in the environmental

field, they are under the control of a body or person falling within Article 2(2)(a) or

(b) of the directive are not required to provide environmental information if it is not

disputed that the information does not relate to the provision of such services.”

78. In the judgment of 23 November 2016, Bayer CropScience SA-NV and Stichting De

Bijenstichting v College voor de toelating van gewasbeschermingsmiddelen en biociden, C-

442/14, ECLI:EU:C:2016:890, the CJEU decided:

(i) “Article 4(2) of 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 must be interpreted as meaning that the fact that the

applicant for authorisation to place a plant protection product or biocide on the

market, did not, during the procedure for obtaining that authorisation, request that

information submitted under that procedure be treated as confidential on the basis

of Article 14 of Council Directive 91/414/EEC of 15 July 1991 concerning the placing

of plant protection products on the market, Article 19 of Directive 98/8/EC of the

European Parliament and of the Council of 16 February 1998 concerning the placing

of biocidal products on the market or Article 33(4) and Article 63 of Regulation (EC)

No 1107/2009 of the European Parliament and of the Council of 21 October 2009

concerning the placing of plant protection products on the market and repealing

Council Directives 79/117/EEC and 91/414/EEC does not preclude the competent

authority, which has received, following the closure of that procedure, a request for

access to the information submitted on the basis of Directive 2003/4 by a third party,

from examining the applicant’s objection to that request for access and refusing it,

if necessary, pursuant to point (d) of the first subparagraph of Article 4(2) of that

directive on the ground that the disclosure of that information would adversely affect

the confidentiality of commercial or industrial information.

(ii) The second subparagraph of Article 4(2) of Directive 2003/4 must be interpreted as

follows:

– ‘emissions into the environment’ within the meaning of that provision covers

the release into the environment of products or substances such as plant protection

products or biocides and substances contained in those products, to the extent that

that release is actual or foreseeable under normal or realistic conditions of use;

– ‘information on emissions into the environment’ within the meaning of that

provision covers information concerning the nature, composition, quantity, date and

place of the ‘emissions into the environment’ of those products or substances, and

data concerning the medium to long-term consequences of those emissions on the

environment, in particular information relating to residues in the environment

following application of the product in question and studies on the measurement of

the substance’s drift during that application, whether the data comes from studies

performed entirely or in part in the field, or from laboratory or translocation studies.

(iii) The second subparagraph of Article 4(2) of Directive 2003/4 must be interpreted as

meaning, in the event of a request for access to information on emissions into the

environment whose disclosure would adversely affect one of the interests referred

to in points (a), (d), and (f) to (h) of the first subparagraph of Article 4(2) of that

directive, that only relevant data which may be extracted from the source of

information concerning emissions into the environment must be disclosed where it

is possible to separate those data from the other information contained in that

source, which is for the referring court to assess.”

79. In the judgment of 15 April 2021, Friends of the Irish Environment Ltd v Commissioner for

Environmental Information, C-470/19, ECLI:EU:C:2021:271, the CJEU held:

“Article 2, point 2, of 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 must be interpreted as meaning that it does not govern access to

environmental information contained in court files, where neither the courts nor the bodies

or institutions under their control, which thus have close links with those courts, constitute

‘public authorities’ within the meaning of that provision and therefore do not fall within the

scope of that directive.

80. This case seems to have the implication that the Fish Legal conditions may be necessary but

are not sufficient to determine whether a body is a public authority. Some argument also focused

on Advocate General Bobek’s opinion in the case.

81. In the judgment of 20 January 2021, Land Baden-Württemberg v D.R., C-619/19,

ECLI:EU:C:2021:35, the CJEU decided:

(i) “Article 4(1)(e) of 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 must be interpreted as meaning that the term ‘internal

communications’ covers all information which circulates within a public authority and

which, on the date of the request for access, has not left that authority’s internal

sphere – as the case may be, after being received by that authority, provided that

it was not or should not have been made available to the public before it was so

received.

(ii) Article 4(1)(e) of Directive 2003/4 must be interpreted as meaning that the

applicability of the exception to the right of access to environmental information

provided for by it in respect of internal communications of a public authority is not

limited in time. However, that exception can apply only for the period during which

protection of the information sought is justified.”

Domestic law

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

(https://revisedacts.lawreform.ie/eli/2007/si/133/front/revised/en/html) transpose the directive in

Irish law. Article 3 is as follows:

“3. (1) In these Regulations—

‘applicant’ means any natural or legal person requesting environmental information pursuant

to these Regulations;

‘Commissioner’ means the holder of the office of Commissioner for Environmental

Information established under article 12;

‘Directive’ means Directive 2003/4/EC of the European Parliament and of the Council of 28

January 20031, which, for convenience of reference, is set out in the Schedule;

‘environmental information’ means 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);

‘environmental information held by a public authority’ means 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’ means environmental information

that is physically held by a natural or legal person on behalf of that authority;

‘Minister’ means the Minister for the Environment, Heritage and Local Government;

‘public authority’ means, subject to sub-article (2)—

(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),

and includes—

(i) a Minister of the Government,

(ii) the Commissioners of Public Works in Ireland,

(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of

2001),

(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of

1946),

(v) the Health Service Executive established under the Health Act 2004 (No. 42 of

2004),

(vi) a board or other body (but not including a company under the Companies Acts)

established by or under statute,

(vii) a company under the Companies Acts, in which all the shares are held—

(I) by or on behalf of a Minister of the Government,

(II) by directors appointed by a Minister of the Government,

(III) by a board or other body within the meaning of paragraph (vi), or

(IV) by a company to which subparagraph (I) or (II) applies, having public

administrative functions and responsibilities, and possessing environmental

information;

‘request’ means a request for environmental information pursuant to article 6.

(2) Notwithstanding anything in sub-article (1), in these Regulations ‘public authority’ does

not include—

(a) the President,

(b) the Office of the Secretary General to the President,

(c) the Council of State,

(d) any Commission for the time being lawfully exercising the powers and performing the

duties of the President, or

(e) any body when acting in a judicial or legislative capacity.

(3) A word or expression that is used in these Regulations and is also used in the Directive

has the same meaning in these Regulations that it has in the Directive.”

83. Article 7 states:

“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 sub-article (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 therefor 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 pre-treatment 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.”

84. Article 11 states:

“Internal review of refusal

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.

(3) A decision under sub-article (2) shall be notified to the applicant within one month from

receipt of the request for the internal review.

(4) Where the decision under sub-article (2) affirms a decision under article 7, or varies it

in a way that results in the request being refused in whole or in part, the public authority

concerned shall—

(a) specify the reasons for the decision under sub-article (2), and

(b) inform the applicant of his or her right of appeal in accordance with these Regulations,

including the time within which such right may be exercised.

(5) In sub-article (1) and article 12(3)(a), the reference to a request refused in whole or in

part includes a request that—

(a) has been refused on the ground that the body or person concerned contends that the

body or person is not a public authority within the meaning of these Regulations,

(b) has been inadequately answered, or

(c) has otherwise not been dealt with in accordance with Article 3, 4 or 5 of the Directive

(including the ground that the amount of the fee charged under article 15(1) is excessive).”

85. Article 12 states:

“Appeal to Commissioner for Environmental Information

12. (1) There is established the office of Commissioner for Environmental Information and

the holder of the office shall be known as the Commissioner for Environmental Information

and shall be independent in the performance of his or her functions.

(2) The holder of the office of Commissioner for Environmental Information shall be the

person who, for the time being, holds the office of Information Commissioner under the

Freedom of Information Acts 1997 and 2003.

(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 the third party may appeal to the

Commissioner against the decision of the public authority concerned.]

(4) (a) An appeal under this article shall be initiated—

(i) not later than one month after receipt of the decision under article 11(3), or

(ii) where no decision is notified by a public authority, not later than one month from

the time when a decision was required to be notified under article 11(3).

(b) Where the Commissioner is satisfied, in the circumstances of a particular case, that it is

reasonable to do so, he or she may extend the time for initiating an appeal under this sub-

article.

(5) Following receipt of an appeal under this article, the Commissioner shall—

(a) review the decision of the public authority,

(b) affirm, vary or annul the decision concerned, specifying the reasons for his or her

decision, and

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

information to the applicant, in accordance with these Regulations.

(6) The Commissioner may, for the purposes of this article, do any of the following:

(a) require a public authority to make available environmental information to the

Commissioner and, where appropriate—

(i) require the public authority concerned to attend before the Commissioner for that

purpose, and

(ii) where the public authority is a body corporate, require its chief officer to attend,

(b) examine and take copies of any environmental information held by a public authority

and retain it in his or her possession for a reasonable period,

(c) enter any premises occupied by a public authority and there require to be furnished with

such environmental information as he or she may reasonably require, or take such copies

of, or extracts from, any environmental information found or made available on the

premises.

(7) A public authority shall comply with a decision of the Commissioner under sub-article (5)

within 3 weeks after its receipt.

(8) Where a public authority fails to comply with a decision of the Commissioner within the

period specified in sub-article (7), the Commissioner may apply to the High Court for an

order directing the public authority to comply with that decision and, on the hearing of such

an application, the High Court may grant such relief accordingly.

(9) (a) The Commissioner may refer any question of law arising in an appeal under this

article to the High Court for determination and shall postpone the making of a decision until

after the determination of the court proceedings.

(b) The High Court or, on appeal from that Court, the Supreme Court, may order that some

or all of the costs of an applicant or other person affected in relation to a reference under

this sub-article be paid by the public authority concerned.

(10) The Commissioner shall be assisted by the staff of the office of the Information

Commissioner and by such other resources as may, from time to time, be available to that

office.”

86. Article 13 states:

“Appeal to High Court on point of law

13. (1) A party to an appeal under article 12 or any other person affected by the decision of

the Commissioner may appeal to the High Court on a point of law from the decision.

(2) An appeal under sub-article (1) shall be initiated not later than 2 months after notice of

the decision under article 12(5) was given to the party to the appeal or other person affected.

(3) Where an appeal under this article by an applicant or other person affected is dismissed

by the High Court or, on appeal from that Court, the Supreme Court, the Court may order

that some or all of the costs in relation to the appeal of any person affected be paid by the

public authority concerned, if it considers that the point of law concerned was of exceptional

public importance, and but for this sub-article, would not so order.

(4) In an appeal under this article to the High Court or, on appeal from that Court, the

Supreme Court, the Court shall, where appropriate, specify the period within which effect

shall be given to its order.”

87. Numerous provisions of the Broadcasting Act 2009

(https://revisedacts.lawreform.ie/eli/2009/act/18/front/revised/en/html) are relevant.

88. Section 2(1) includes the following definitions:

“‘corporation’ means RTÉ or TG4 or both, as the case may be;

...

‘Raidió Teilifís Éireann’ means the authority established under section 3 of the

Broadcasting Authority Act 1960;

...

‘RTÉ’ means Raidió Teilifís Éireann;

...

‘Teilifís na Gaeilge’ means the body established by section 44 of the Act of 2001;

‘TG4’ means Teilifís na Gaeilge;”

89. Section 81 states:

“81.— (1) The number of members of the board of a corporation shall be 12 in number, of

which—

(a) 6 of them shall be appointed by the Government on the nomination of the Minister,

(b) subject to subsection (2), 4 of them shall be appointed by the Government on the

nomination of the Minister,

(c) one shall be appointed by the Government following an election in accordance with

section 83, and

(d) one shall be the director general of the corporation.

(2) Where an appointment is to be made by the Government under subsection (1)(b) or

under that paragraph arising from a vacancy referred to in section 84(12)—

(a) the Minister shall inform the Joint Oireachtas Committee of the proposed appointment,

(b) The Minister in respect of an appointment under subsection (1)(a) shall provide a

statement to the Joint Oireachtas Committee indicating the relevant experience and

expertise of the persons or person nominated by the Minister for appointment or appointed

by the Government on the nomination of the Minister, and such other matters as the Minister

considers relevant,

(c) the Joint Oireachtas Committee shall within the period of 90 days of being so informed,

advise the Minister of the names of the persons or name of the person it proposes that the

Minister should nominate under subsection (1)(b) giving reasons, such as relevant

experience and expertise, in relation to the proposed named persons or person,

(d) the Minister shall have regard to the advice and may accept the proposed named persons

or some of them or the named person or decide to nominate as he or she sees fit other

persons or another person, and

(e) inform the Joint Oireachtas Committee of his or her decision.

(3) Not less than 5 of the members of the board of a corporation shall be men and not less

than 5 of them shall be women.

(4) The Joint Oireachtas Committee for the purposes of providing advice to the Minister

under subsection (2) may establish a panel, for such duration, and consisting of such number

of persons as the Joint Oireachtas Committee shall think proper.

(5) Persons placed on a panel established under subsection (4) shall—

(a) have experience of or have shown capacity in one or more of the matters stated in

section 82 (1),

(b) in respect of TG4 comply with the requirements of section 82 (2), and

(c) be chosen with a view to representing the public interest in respect of public service

broadcasting matters.

(6) The Joint Oireachtas Committee shall, insofar as is practicable, endeavour to ensure that

among the persons placed on a panel under subsection (4) there is an equitable balance

between men and women.

(7) The Joint Oireachtas Committee shall have sole responsibility for the selection and

placing of candidates on a panel established under subsection (4).”

90. Section 98 states:

“98.— Subject to the requirements of this Act, a corporation shall be independent in the

pursuance of its objects.”

91. Section 110 states:

“110.— (1) A corporation shall, not later than 30 June in each year make a report to the

Minister (in this section referred to as the ‘annual report’) in such form as the Minister may

approve, on the performance of its functions and activities during the preceding year, and

the Minister shall cause copies of the report to be laid before each House of the Oireachtas.

(2) Whenever the Minister so directs, the annual report shall also include such additional

information on the performance of the corporation’s functions and activities during the

preceding year as the Minister may specify.

(3) A corporation shall co-operate with the Minister and the Authority in the performance of

their respective functions under this Act including providing them with all necessary

information.

(4) RTÉ shall on the third and fifth anniversaries of 18 April 2007 carry out a review of the

provision of the television broadcasting service and sound broadcasting service referred to

in paragraph (f) of section 114 (1).

(5) RTÉ shall make a report to the Minister of each review carried out by it under subsection

(4).

(6) The Minister shall cause copies of each report made to him or her under subsection (5)

to be laid before each House of the Oireachtas.”

92. Section 114(1) states:

“114.— (1) The objects of RTÉ are—

(a) to establish, maintain and operate a national television and sound broadcasting service

which shall have the character of a public service, be a free-to-air service and be made

available, in so far as it is reasonably practicable, to the whole community on the island of

Ireland,

(b) to establish and maintain a website in connection with the services of RTÉ under

paragraphs (a), (c), (d), (e), (f), (g), (h) and (i),

(c) to establish and maintain a concert orchestra and other cultural performing groups in

connection with the services of RTÉ under paragraphs (a), (f), (g) and (h),

(d) to assist and co-operate with the relevant public bodies in preparation for, and execution

of, the dissemination of relevant information to the public in the event of a major emergency,

(e) to establish and maintain archives and libraries containing materials relevant to the

objects of RTÉ under this subsection,

(f) to establish, maintain and operate a television broadcasting service and a sound

broadcasting service which shall have the character of a public service, which services shall

be made available, in so far as RTÉ considers reasonably practicable, to Irish communities

outside the island of Ireland,

(g) subject to the consent of the Minister, the Minister having consulted with the Authority,

to establish, maintain and operate, in so far as it is reasonably practicable, community, local,

or regional broadcasting services, which shall have the character of a public service, and be

available free-to-air,

(h) subject to the consent of the Minister, the Minister having consulted with the Authority,

to establish and maintain audiovisual on-demand media services, in so far as it is reasonably

practicable, which shall have the character of a public broadcasting service (such consent

not being required in respect of such services which are ancillary to a broadcasting service

provided under paragraphs (a), (d), (f) and (g)),

(i) to establish, maintain, and operate one or more national multiplexes,

(j) so far as it is reasonably practicable, to exploit such commercial opportunities as may

arise in pursuit of the objects outlined in paragraphs (a) to (i).”

93. Section 123 provides:

“123.— (1) The Minister, with the approval of the Minister for Public Expenditure and Reform,

may pay to RTÉ and TG4 out of monies provided by the Oireachtas, in respect of each

financial year beginning with the financial year commencing on 1 January 2011, an amount

equal to the total of the receipts in that year in respect of television licence fees apportioned

to RTÉ and TG4 as the Minister determines in accordance with subsection (1A) less—

(a) any expenses certified by the Minister as having been incurred by him or her in that year

in relation to the collection of those fees, and

(b) any amount paid under section 156(2).

(1A) (a) The Minister shall, after consultation with the Minister for Public Expenditure and

Reform, determine the portion of the amount referred to in subsection (1) to be paid to RTÉ

and TG4 respectively.

(b) When making a determination for the purposes of paragraph (a), the Minister shall have

regard to the ability of RTÉ and TG4 to fulfil their public service objects.

(2) The amount paid to RTÉ in each financial year under subsection (1) of this section, shall

be used by RTÉ solely for the purposes of—

(a) pursuing its public service objects, and

(b) paying amounts levied on RTÉ under section 33.

(2A) The amount paid to TG4 in each financial year under subsection (1), shall be used by

TG4 solely for the purposes of—

(a) pursuing its public service objects, and

(b) paying amounts levied on TG4 under section 33.

(3) The Minister, with the consent of the Minister for Finance, may from time to time, pay

to RTÉ such an amount as he or she determines to be reasonable for the purposes of

defraying the expenses incurred by RTÉ in the pursuance of its public service objects.

(4) The Minister, with the consent of the Minister for Finance, may from time to time, pay

to TG4 such an amount as he or she determines to be reasonable for the purposes of

defraying the expenses incurred by TG4 in—

(a) pursuing its public service objects, and

(b) paying amounts levied on TG4 under section 33.

(5) The Minister in making a determination under subsection (4) shall consider the multi-

annual funding needs of TG4.”

94. The original AIE directive was transposed by the European Communities Act 1972 (Access

to Information on the Environment) Regulations 1998 (S.I. No. 125 of 1998).

95. The 2007 AIE regulations which revoke the 1998 regulations involve an almost literal

transposition of the current AIE directive.

96. A relevant aspect of the domestic regulations is that the body carrying out the investigation,

namely the commissioner, is also the body deciding whether there should be access to records that

are prima facie privileged. So there is a lack of independence in that decision. The constitutionality

of this procedure has not been challenged, although on one view it cuts against the tenor of the

Supreme Court decision in Damache v. DPP [2012] IESC 11, [2012] 2 I.R. 266 (Denham C.J.).

Domestic caselaw

97. The regulations and the directive have been discussed in a number of domestic cases

including the following:

(i) NAMA v. Commissioner for Environmental Information [2015] IESC 51, [2015] 4 I.R.

626, [2015] 2 I.L.R.M. 165 (O’Donnell J.) – the domestic regulations should be

interpreted through the prism of EU law; NAMA is a public authority, having regard

inter alia to its special powers under law.

(ii) Minch v. Commissioner for Environmental Information [2017] IECA 223, [2017] 7

JIC 2807 (Unreported, Court of Appeal, Hogan J., 28th July 2018) – a report

prepared by the Minister for Communications, Energy and Natural Resources entitled

“Analysis of Options for Potential State Intervention in the Role out of Next-

Generation Broadband” amounted to information “on” an economic analysis or

analyses used in the framework of a measure which itself affected or was likely to

affect the environment.

(iii) Right to Know CLG v. An Taoiseach [2018] IEHC 372, [2019] 3 I.R. 22, [2019] 1

I.L.R.M. 270 (Faherty J.) – the constitutional protection for cabinet confidentiality is

not dispositive of disclosure under the directive.

(iv) Electricity Supply Board v. Commissioner for Environmental Information [2020]

IEHC 190, [2020] 4 JIC 0308 (Unreported, High Court, O’Regan J., 3rd April 2020)

– inter alia, the commissioner’s decisions were “confusing and contradictory” and (at

para. 50(5)) the commissioner could not conclude that a transcript was

environmental information in the circumstances “without either … specifying how the

information is environmental on the content of the transcript, or how same is integral

to the development of electricity infrastructure”.

(v) Redmond v. Commissioner for Environmental Information [2020] IECA 83, [2021]

3 I.R. 695 (Collins J.) – in effectively deciding the appeal on the basis of the absence

of any direct evidence of (the public authority’s knowledge of) a purchaser of lands’

intentions for the use and/or development of the lands, the commissioner took an

approach that was unduly restrictive. In addition, the commissioner’s conclusion

that certain records did not constitute “environmental information” was flawed and

must be set aside, the commissioner asked himself the wrong question, did not have

sufficient regard to the evidence available to him (and failed to have any regard to

a significant portion of that evidence) and failed to carry out an appropriate

investigation.

(vi) Right to Know CLG v. Commissioner for Environmental Information & RTÉ [2021]

IEHC 353, [2021] 4 JIC 2008 (Unreported, High Court, Barrett J., 20th April 2021)

– referred to above.

(vii) Right to Know CLG v. Commissioner for Environmental Information [2022] IESC 19,

[2023] 1 I.L.R.M. 122 (Baker J.) – the President is not a “public authority” within

the meaning of the AIE directive and the regulations.

(viii) Bord na Móna plc v. Commissioner for Environmental Information [2023] IEHC 57,

[2023] 2 JIC 0702 (Unreported, High Court, Hyland J., 7th February 2023) – as

regards whether a body may be treated as holding environmental information on

behalf of a public authority where it also holds that information on its own behalf, it

is possible to interpret “on behalf of” to cover situations where the holder of

information is holding it both for its own purposes, and for the public authority.

(ix) Electricity Supply Board v. Commissioner for Environmental Information [2024]

IEHC 17 (Unreported, High Court, Heslin J., 17th January 2024) (under appeal) –

the commissioner erred in law in finding that the transcript, in its entirety, is

environmental information (i.e. information “on” the development of electricity

infrastructure, coming within para. (c) of the definition of “environmental

information”).

(x) Right to Know CLG v. Commissioner for Environmental Information & Raheenleagh

Power DAC [2024] IESC 7 (Unreported, Supreme Court, O’Malley J., 6th March 2024)

– the commissioner erred in separating out the components of the relevant tests for

paras. (b) and (c) of art. 3(1) of the regulations and in the assessment of the

questions relating to special powers, public responsibilities, services and functions

and the control of the company in question.

Core ground 1 – art. 2(2) – public authority

98. Core ground 1 is:

“1. The Commissioner for Environmental Information erred in law and mis-interpreted

the definition of a public authority in Article 3 of the European Communities (Access to

Information on the Environment) Regulations 2007 – 2018 as amended in concluding that

Raidió Teilifís Éireann is a public authority for the purposes of the AIE Regulations and, in

particular, within the meaning of paragraph (a) of that definition.”

99. The parties’ positions as recorded in the statement of case are summarised as follows:

“RTÉ

RTÉ is not a public authority within the meaning of paragraph (a) of the definition of a public

authority in Article 3 of the AIE Regulations and/or Article 2(2) of the AIE Directive. The

Commissioner erred in law and misapplied the definition of public authority for the purposes

of AIE Regulations/Directive in concluding that RTÉ was a public authority on the basis that

it was a ‘legal person governed by public law which [has] been set up by the State’. The

Commissioner wrongly concluded that because RTÉ was established by statute and was

governed by public law it came within the scope of paragraph (a) of the definition. The

Commissioner erred in law by equating paragraph (a) of the definition of a public authority

with the national law concept of a body being amenable to Judicial Review.

Paragraph (a) of the definition is directed at bodies who form part of the Government or

public administration of the State. There is no reasonable basis for a conclusion that a

broadcasting authority, which has certain public service obligations but is independent from,

inter alia, Government in the performance of its broadcasting functions, forms part of the

Government or public administration of the State.

The determination that RTÉ is a public authority for the purposes of the AIE Regulations is

not consistent with the protections afforded to RTÉ as regards its editorial and journalistic

functions. There are no exemptions within the AIE Regulations for journalistic or editorial

activities. This has the consequence that if RTÉ is held to be a public authority, there is a

high probability that it will be required to disclose information which is sensitive or which

was provided by journalistic sources. There is a particular concern because the AIE

Regulations include a strong presumption in favour of disclosure of information, which is

difficult to reconcile with the protection afforded to journalists by the Constitution and the

European Convention of Human Rights (as discussed in, for example, Mahon v. Keena [2010]

1 IR 336 and Corcoran v. Commissioner of An Garda Siochana [2023] IESC 15). While it is

correct to say that there are exemptions from disclosure, that does not provide any real

protection for material which is the subject of journalistic privilege, not least because the

Commissioner requires all material which is the subject of a request to be disclosed to his

office for the purpose of considering appeals and the failure to provide such information can

result in an application being made to the High Court (see Article 12(6) – (8) of the AIE

Regulations). That requires, at a minimum, journalists to disclose information to third

parties, including the Commissioner and his staff, which would ordinarily be kept entirely

confidential.

The possibility of RTÉ journalists having to disclose confidential editorial or journalistic

information, or being subject to the demand and search powers which are a feature of the

AIE Regulations, is entirely inconsistent with the Regulation (EU) 2024/1083 of the European

Parliament and of the Council of 11 April 2024 establishing a common framework for media

services in the internal market and amending Directive 2010/13/EU (‘the European Media

Freedom Act’), in particular Article 4 thereof.

In these circumstances, RTÉ submits that it could never have been intended that the AIE

Directive would apply to a journalistic broadcaster.

In that regard, the decision of the Commissioner is not consistent with the evidence which

was before the Commissioner as regards the applicability of the Directive to broadcasters in

other Member States.

The Commissioner failed to give reasons for its decision, failed to properly consider

submissions made by RTÉ and had regard to irrelevant considerations. In particular, the

Commissioner failed to explain how RTÉ forms part of the Government or public

administration and only considers whether RTÉ is amenable to Judicial Review.

The Commissioner failed to properly engage with or address submissions made by RTÉ as

part of the decision-making process. Beyond reciting that submissions were made, the

Commissioner gave no consideration to the argument of RTÉ relating to the position of

broadcasters with public service obligations in other Member State, which are not treated

public authorities. The Commissioner failed to address a decision of the First Tier Tribunal

in the United Kingdom (made pre-Brexit) which determined that the BBC is not a public

authority.

OCEI

The Court of Justice of the European Union set out the test to be applied in relation to

paragraph (a) of the definition of a public authority in Case C-279/12 Fish Legal at §51. It

was applied correctly. It requires the Commissioner to ask four questions which was done.

Notably, the Appellant doesn’t even engage with this save to misrepresent matters saying

the Commissioner baldly concluded that susceptibility to judicial review answered all relevant

questions. This is plainly not what the Commissioner did and the four-fold test required by

the CJEU was applied and answered.

Insofar as the Appellant says this all misses the point that RTÉ cannot be view qua part of

Government, there is no such requirement. Indeed, it is very clear that the CJEU – when

referring to bodies that are organically administrative bodies was contrasting that outcome

(i.e. under Article 2(2)(a)) with the functional approach required under Article 2(2)(b).

Absolutely nothing the Appellant has relied on explains why the Commissioner can be

criticized for applying the test in §51 of Fish Legal.

All the points about journalistic freedom and press privilege are beside the point. Indeed,

the Commissioner was criticized by the High Court in Right to Know for doing precisely what

RTÉ requires here. All these principles simply do not amount to providing a de jure ‘carve

out’ for a broadcaster in respect of all its output from the AIE Directive. The concerns are,

by very definition, overblown and seek a disproportionate outcome. The exemptions in the

Directive and Regulations can be applied in a case by case approach to deal with these

issues. Indeed, even on a wider scale, it is by definition disproportionate to seek to approach

the definition of a public authority by reference to concerns that would arise on a case specific

basis. In any specific case where legitimate concerns arise by reference to counter-veiling

legally recognized rights and principles, that will arise on a case-by-case basis where the

relevant context, rights and interests are considered and weighed. By very definition

invoking general press freedom to seek a general exclusion from this regime is simply over

the top and inappropriate because many cases simply won’t involve any associated interests

or rights. Had the EU legislature intended for public service broadcasters to be outside the

scope of the AIE Regime, it could have done so expressly, as it did in the Open Data Directive.

Notice Party

The Commissioner correctly decided that RTÉ is a public authority because it satisfies the

four criteria for a public authority under paragraph (a) of the definition as interpreted by the

Court of Justice in the Fish Legal case, namely (i) it is a legal person (ii) governed by public

law; (iii) set up by the State; and (iv) which the State alone can decide to dissolve. The

Commissioner gave adequate reasons and took into account all relevant matters and didn’t

take into account irrelevant matters. The claims in relation to press freedom are purely

hypothetical since they do not arise on the facts. The AIE Regulations provide a system of

exceptions supervised by the Commissioner for Environment and the Courts. RTÉ’s status

as a public authority is therefore not incompatible with the Charter of Fundamental Rights.”

100. Sensibly, RTÉ did not proceed with any argument in core ground 1 based on domestic law,

so we don’t need to be concerned with the alleged inadequacy of the reasons for the decision on

whether RTÉ is a public authority. The reason that was sensible was that even if the decision wasn’t

adequately reasoned in some way, the commissioner made sufficient findings to enable the court to

evaluate the lawfulness of those findings.

101. This is as good a point as any to note that in Right to Know CLG v. Commissioner for

Environmental Information & Raheenleagh Power DAC [2021] IEHC 46 (Unreported, High Court,

25th January 2021), Owens J. decided as follows:

“23. My general comment is that where it is necessary to apply any test mandated by law

in determining whether an entity comes within the definition of ‘public authority’ in Article

2(2)(b) or Article 2(2)(c) of the Directive, the Commissioner should decide all factual and

legal matters relevant to that test.

24. These tests are composite in the sense that it is not conceptually possible to apply some

of their elements on a stand-alone basis. Furthermore, the public interest in effective

administration requires that the Commissioner makes a complete decision on any factual or

legal issue relevant to whether an entity is a ‘public authority’ within Article 2(2)(b) or Article

2(2)(c) of the Directive. The Commissioner should also have decided the issue relating to

‘control’, applying the test set out Case C-279/12 Fish Legal and Shirley.”

This was effectively endorsed by O’Malley J. at para. 147 of her judgment on appeal ([2024]

IESC 7 (Unreported, Supreme Court, 6th March 2024)).

102. If paras. (b) and (c) should be considered together, one also has the problem that para (c)

refers back to para. (a), so if para. (a) is in issue at all, then one can see an argument that all

aspects should logically be considered together in the sense of there being findings of fact in relation

to (a) to (c) inclusive. However the parties here all agreed that the failure to decide under (b) and

(c) wasn’t an issue because it wasn’t pleaded. In addition, the opposing parties agreed that

Raheenleagh could be distinguished as it did not deal with para. (a). Thus with an unanimity of

view, in an adversarial system, I can proceed on the basis that the commissioner’s decision includes

enough in the way of findings to be properly reviewable.

103. However there is one rather critical process issue I need to note here, which is something

that clearly wasn’t raised in the Supreme Court, namely whether the Aarhus/EU law need for

expedition has priority over normal common law principles of remittal for full fact-finding. The

approach taken by the Supreme Court, while of course totally conventional if I may very respectfully

say so, doesn’t necessarily result in early finalisation of a request. There is a lurking EU law issue

here, namely whether a review body is required to simply make a decision on the request if possible,

rather than remit, if remittal would create or prolong a breach of EU law. We can come back to that

later.

104. We can turn to the substance of the definition of public authority. Starting with the Aarhus

Convention, adopted on behalf of the EU, art. 2(2) of Aarhus defines public authority:

“2. ‘Public authority’ means: (a) Government at national, regional and other level; (b)

Natural or legal persons performing public administrative functions under national law,

including specific duties, activities or services in relation to the environment; (c) Any other

natural or legal persons having public responsibilities or functions, or providing public

services, in relation to the environment, under the control of a body or person falling within

subparagraphs (a) or (b) above; (d) The institutions of any regional economic integration

organization referred to in article 17 which is a Party to this Convention. This definition does

not include bodies or institutions acting in a judicial or legislative capacity;”

105. The Aarhus Convention Implementation Guide (second edition, 2014) states in relation to

(a), at p. 46:

“(a) Government at national, regional and other level; ‘Public authority’ includes

‘government’— a term which includes agencies, institutions, departments, bodies, etc., of

political power — at all geographical or administrative levels. In a typical situation, national

ministries and agencies and their regional and local offices, State, regional or provincial

ministries and agencies and their regional and local offices, as well as local or municipal

government offices, such as those found in cities, towns or villages, would be covered. It

must be emphasized that public authorities under the Convention are not limited to

‘environmental authorities’ within government. It is irrelevant whether a particular official

works in an environmental ministry or inspectorate, or even understands that his or her

responsibilities have links to the environment. All governmental authorities of whatever

function are covered under subparagraph (a).”

106. The judgment of 16 February 2012, Marie-Noëlle Solvay and Others v Région wallonne, C-

182/10, ECLI:EU:C:2012:82 at §27 recognises that the Aarhus Convention Implementation Guide,

while not binding, can be a useful aid to interpretation.

107. The definition of public authority in art. 2(2) of the AIE directive is somewhat wider:

“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.”

108. Public authority is defined in similar terms in the 2007 regulations.

109. We can note that O’Malley J. in Raheenleagh Power said at para. 9 that:

“The definition of a ‘public authority’ set out in Article 3(1) mirrors that in Article 2(2) of the

directive (which, in turn, is essentially identical to that in the Aarhus Convention)”

110. However that comment is meant to view things from a high level. Zooming in to the exact

wording, the definition in art. 2(2) of the directive is not essentially identical with the Aarhus

Convention – it includes in para. (a) the significant addition of reference to public administration and

advisory bodies in addition to the wording of Aarhus which is referable to government bodies.

111. A starting point is the approach that disclosure is the general rule – see recital 16 of the

directive and the judgment of 28 July 2011, Office of Communications v Information Commissioner,

C-71/10, ECLI:EU:C:2011:525.

112. There wasn’t any hugely persuasive argument that the Fish Legal tests were not satisfied

here. The issue boiled down to whether these were simply necessary tests, or both necessary and

sufficient. RTÉ said they were not sufficient because the position of a media organisation needs

separate recognition. That is an issue not considered in Fish Legal.

113. The need for the concept of a public authority to be given an autonomous and uniform

interpretation across the European Union (Flachglas Torgau at §37, Fish Legal at §45) is highly

relevant given the significant differences in approach across the European legal space.

114. The issue is of great practical importance because the AIE regulations do not contain any

express exemption for journalistic or editorial activities. Combined with the strong presumption in

favour of disclosure of information, the inclusion of broadcasters as public authorities could have a

negative effect on press freedom, or at least a chilling effect.

115. The commissioner also argued that to put RTÉ in a position where it was entitled to an

exemption here would put it on a par with the legislature. But in a democratic society that isn’t an

insuperably problematic concept. Edmund Burke is supposed to have called the media the fourth

estate of government (House of Commons, 19-20th February 1771), and they are also often viewed,

like Shelley’s comment on poets (1821), as unacknowledged legislators of the world. A modicum of

belated acknowledgement doesn’t seem totally unreasonable.

116. All that said, the policy rationale for exclusion of administrative functions of public

broadcasters such as RTÉ seems rather weaker than the policy rationale for exclusion of their

journalistic functions. That might make a case in favour of an interpretation, if that was available,

whereby public broadcasters would be excluded from the definition of public authority for the

purposes of their journalistic functions (or at least core/privileged journalistic functions) but not

administrative functions.

117. At the level of principle it appears that this heading raises referrable questions of EU law.

Core ground 2 – art. 2(1) – environmental information

118. Core ground 2 is:

“2. The Commissioner for Environmental Information erred in law and mis-interpreted

the definition of environmental information in Article 3(1) of the European Communities

(Access to Information on the Environment) Regulations 2007 – 2018 as amended in

concluding that the records which were the subject of the request made by Right to Know

CLG were environmental information within the meaning of Article 3(1) of those Regulations.

The Commissioner for Environmental Information erred in law in concluding that the records

requested by Right to Know CLG was information on a factor within the meaning of paragraph

(b) of the definition of environmental information and/or was information on a measure

within the meaning of paragraph (c) of the definition of environmental information.”

119. The parties’ positions as recorded in the statement of case are summarised as follows:

“RTÉ

The Commissioner decided that the information requested was information ‘on’ one of the

categories contained at (a) – (f) of the definition of environmental information and, in

particular, that it was information on broadcasting on climate change (which was considered

to be a ‘measure’ within the meaning of paragraph (c)) and on climate change as a factor

affecting or likely to affect the elements of the environment (within the meaning of

paragraph (b)). The Commissioner concluded that the representations made by members

of the public to RTÉ could advance the purposes of the Convention and the Directive as they

‘will provide information on their views as to that broadcasting’ (at §55 of the decision). The

Commissioner also concluded that the number of such representations was information on

climate change broadcasting as it ‘contributes to debate and discussion in relation to its

climate change broadcasting’.

The decision lacks clarity as it does not properly address whether the records are

environmental information within the meaning of paragraph (b) or paragraph (c).

The Commissioner misinterpreted the definition of environmental information and applied

an overly broad interpretation of that definition which results in information which is far too

remote from the identified measures being brought within the scope of the definition. In

particular, the Commissioner failed to consider or explain how the information in question

was critical, fundamental or integral to the measure or factor at issue. In making this error,

the Commissioner failed to properly consider or explain how the release of the information

could advance the aims of the AIE Directive and the Aarhus Convention.

OCEI

Having regard to the text in the Commissioner’s Decision there is no case that can remotely

be made out on reasons. The decision clearly sets out the correct test to be applied on the

definition of environmental information, that being in the English case of Department for

Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844

(‘Henney’). The application of that test is a matter within the expertise of the Commissioner

and deference is due to the Commissioner by the Courts. There is no lack of clarity in the

decision. It gives clear reasons and demonstrates a clear engagement with submissions

made by RTE. Even in the event that the Court carries out a ‘clean slate’ review of the

conclusions here it is patently clear that the information is ‘on’ the measure here and this all

arises in the context of where RTÉ accept the findings of Barrett J in the prior RTK case.

Notice Party

The Commissioner acted within the margin of his discretion in deciding that the requested

information was environmental information because it is information, which is about, relates

to or concerns climate change and/or broadcasting on climate change and it advances the

objectives of the Aarhus Convention and the AIE Directive. The Commissioner was entitled

to draw the inferences he did from the facts. RTÉ has not shown that the Commissioner’s

decision was one that no reasonable decision maker could draw.”

120. Article 2(1) of the directive defines environmental information:

“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).”

121. In Department for Business, Energy and Industrial Strategy v. Information Commissioner &

Henney [2017] EWCA Civ 844, [2017] P.T.S.R. 1644, [2017] 6 W.L.U.K. 652, Beatson L.J. said at

para. 43:

“It follows that identifying the measure that the disputed information is ‘on’ may require

consideration of the wider context, and is not strictly limited to the precise issue with which

the information is concerned, here the communications and data component, or the

document containing the information, here the Project Assessment Review. It may be

relevant to consider the purpose for which the information was produced, how important the

information is to that purpose, how it is to be used, and whether access to it would enable

the public to be informed about, or to participate in, decision-making in a better way. None

of these matters may be apparent on the face of the information itself. It was not in dispute

that, when identifying the measure, a tribunal should apply the definition in the EIR

purposively, bearing in mind the modern approach to the interpretation of legislation, and

particularly to international and European measures such as the Aarhus Convention and the

Directive. It is then necessary to consider whether the measure so identified has the

requisite environmental impact for the purposes of regulation 2(1).”

122. At para. 50:

“Mr Choudhury relied on the Greenpeace case as showing a limit being placed on a definition

whose language is plain but very broad. He argued that the approach of the CJEU informs

the meaning of the word ‘on’ in regulation 2(1)(c), because the CJEU held that it was wrong

to ask whether the information contained a ‘sufficiently direct link’ to the factor. For the

reasons I give in the next two paragraphs, the different legislative context means that I do

not consider that the Department is in fact assisted by the Greenpeace case. But the decision

does show that a purposive approach can be used to interpret a provision more narrowly

than its very broad literal meaning. At §80, the CJEU relied on the purpose of enabling

public participation in environmental decision-making to narrow the otherwise over-broad

definition in Article 6(1) of regulation 1367/2006. It in effect ‘read down’ the provision by

reference to the legislative purpose.”

123. The commissioner here found as follows:

“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 ls 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).

…

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).

…

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.”

124. The primary alleged errors are:

(i) the test isn’t a sliding scale;

(ii) failure to specify whether the information is information on climate change or on

RTÉ broadcasting on climate change (i.e., which sub-paragraph of the definition was

relevant); and

(iii) if there is a sliding scale it should be specified as to where and why the case falls

both in relation to the factor aspect and the measure aspect.

Sub-issue 1 – the wrong test

125. The core objection is at para. 78:

“the Commissioner misinterpreted the definition of environmental information and applied

an overly broad interpretation of that definition which results in information which is far too

remote from the identified measures being brought within the scope of the definition. As

explained above, the definition of environmental information is to be interpreted in a manner

which would give effect to the aim of the Convention and the Directive which is to better

enable participation in environmental decision-making. The case law has identified a test of

remoteness which allows a consideration of how relevant particular information is to the

measure in question.”

126. That alleged problem isn’t really recognisable from the actual decision. The commissioner

does adopt a test of remoteness, which he calls a sliding scale. RTÉ don’t like that terminology of

course but it comes to the same thing. Remoteness isn’t binary in itself, although as a legal concept

there’s a dividing point on the scale which channels the gradations of remoteness on one side of it

into refusal territory, and on the other side into grant territory. The proposition we arrive at in the

present case is that calling remoteness a sliding scale isn’t in substance a different test to the “test”

of remoteness argued for by RTÉ (if their argument even amounts to a test – by and large it is more

a complaint of what the commissioner got wrong as opposed to what a correct decision would have

looked like in practical terms). Or at least we need to read the decision in that way, that is, in a

way in which it makes sense, since that is an available interpretation.

Sub-issue 2 – failure to specify which sub-paragraph was relevant

127. Insofar as RTÉ argues that the commissioner didn’t specify which sub-paragraph was

relevant, that is unfortunate and indeed the commissioner pretty much accepted the sub-optimality

of that in argument. In another case it might be more of a problem. But here, the legalistic points

complaining about reasons or the reasoning process made by RTÉ don’t really get us anywhere. The

commissioner’s decision could have been clearer but was in no sense so flawed or unreasoned as to

warrant being set aside. The commissioner’s conclusion that if RTÉ is relevantly a public authority

then this was environmental information has not been shown to be unreasonable or unlawful in any

way that warrants it being set aside, and whichever paragraph the decision is to be read as basing

itself on, the conclusion that guidance on reporting on the environment and representations in

relation to such reporting come within one or other of the limbs of the definition of environmental

information is what one arrives at any reasonable view of the decision, so further detail wouldn’t

have made difference. That hasn’t been shown to be unreasonable or otherwise unlawful, or indeed

anything other than a totally obvious conclusion.

Sub-issue 3 – lack of detail in the reasoning

128. There couldn’t plausibly be a duty to give details as to where the case falls on a sliding scale

if the legal position resolves into either grant or refusal. Sufficient reasons are given in the decision

to meet minimum legal standards. Any decision by anybody is vulnerable to the cry that one didn’t

specify more detail in relation to particular aspects. That isn’t the test. The test is – stand back and

ask did the decision give main reasons on the main issues. No plausible basis has been made out

to show that the commissioner has erred in some way material to the result that warrants the

decision being set aside.

129. To conclude on the entire ground of challenge overall, the commissioner calls core ground 2

“unstateable”; and while I wouldn’t want to be quoted as agreeing with that, I would confess that I

had some difficulty in satisfactorily putting a completely coherent version of it into words for myself

for the purposes of coming to grips with the case. But even assuming that’s just a shortcoming on

my part, the point, however stated, is one that doesn’t have much in the way of merit.

Core ground 3 – art. 2(1) – environmental information – “material form”

130. Core ground 3 is:

“3. The Commissioner for Environmental Information erred in law and mis-interpreted

the meaning of the term ‘material form’ in the definition of environmental information in

Article 3 of the European Communities (Access to Information on the Environment)

Regulations 2007 – 2018 as amended.”

131. The parties’ positions as recorded in the statement of case are summarised as follows:

“RTÉ

The Commissioner erred in the manner in which he interpreted the term ‘material form’.

The request made by Right to Know included a 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 in 2021’. It is common case that no

such record exists.

The obligation is to release information which is held for or by RTÉ which is in a ‘material

form’. In other words, any information which is held in any form such as in paper, digital

files or audio recordings. However, the basic requirement is for the information to actually

exist, in whatever form that may be. That does not include an obligation to take certain

information (in this case the actual representations made) which exists in a particular

material form (i.e. as either paper or digital records) and create new information (i.e. the

number of representations) and record that in a material form so that it can be released to

the requester.

OCEI

The decision did not err in the definition of ‘material form’ and did not err in finding that the

records did exist in a material form. It clearly stated that since the records existed, all that

was required was for RTÉ to count them. This is all that arises – the information exists, and

it exists in a material form. The fact that RTÉ have to actually engage in counting is simply

a consequence of the definition. It is the plainly the case on the text of the Directive itself

and this is also supported by a teleological interpretation of the Directive (and Regulations)

as a whole, that the fact that information may require to be shaped into a transmissible or

communicable form does not mean it is not environmental information.

In any event, it is always the case that an AIE body, in replying to an AIE request, should

create a new document in response to the request. This is the initial decision letter, either

granting or refusing access. One of the standard items in these letters is the number of

records covered by the request and ideally a schedule of same.

Notice Party

It is not disputed that there exist records of representations RTÉ received during the time

frame specified by the requestor. Therefore, the information exists in a material form.

Reporting in a decision letter the number of representations is not the creation of a new

record since RTÉ is required in any event to make a decision in writing. Alternatively, RTÉ

could have provided the requestor with copies of the relevant representations in response

to this part of the request. RTÉ gave no explanation for this part of its initial decision or

internal review and did not support the requestor with the aim of making environmental

information effectively available.”

132. RTÉ’s basic position on this is that insofar as the request made by Right to Know included a

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 in 2021”, it is common case

that no such record exists as a stand-alone document.

133. What exists are the representations themselves, which can be counted, and the count can

be recorded. But that would, in RTÉ’s view, involve the creation of a new record. The opposing

parties say that what is involved is merely the transformation of existing records into a new form,

namely one that constitutes a statement of how many such records there are.

134. While I would favour one of these characterisations as considerably stronger than the other,

I can’t say with complete confidence that such an answer is acte clair. Therefore this, as with core

ground 1, raises a referrable issue of EU law.

Core ground 4 – art. 4(1)(b) – manifestly unreasonable refusal

135. Core ground 4 is:

“4. The Commissioner for Environmental Information erred in law, mis-applied and

failed to properly interpret Article 9(2)(a) of the European Communities (Access to

Information on the Environment) Regulations 2007 – 2018 as amended and wrongly

concluded that Raidió Teilifís Éireann was not entitled to rely on that exemption when the

matter was remitted to it for further consideration.”

136. The parties’ positions as recorded in the statement of case are summarised as follows:

“RTÉ

The Commissioner erred in his interpretation of Article 9(2)(a) of the AIE Regulations.

Notwithstanding the fact that the Commissioner decided to remit the matter to RTÉ for

further consideration, he purported to determine that RTÉ was not entitled to rely on Article

9(2)(a) of the AIE Regulations and therefore purported to pre-judge the issue.

The Commissioner wrongly concluded that that it would not be manifestly unreasonably to

require RTÉ to undertake searches of all representations received by it, and to review the

contents of those representations, in order to identify those representations which come

within the scope of the request made by Right to Know. The exercise required by the

Commissioner would require engagement with hundreds of individuals within RTÉ and a

careful review of any records which are held by them which might fall within the request.

The conclusion of the Commissioner to the contrary is wrong in law and unreasonable, having

regard to the evidence accepted by the Commissioner relating to the scale and volume of

representations received by RTÉ.

OCEI

The decision does not determine this issue and this is clear from a reading of the relevant

part of the decision. This section of the decision was drafted in an attempt to assist the

parties, and RTÉ in particular. It merely set out some issues that RTÉ might consider if it

were to reply on the manifestly unreasonable exemption in the AIE Regulations. The decision

simply did not make any conclusions on the application of the exemption and it is surprising

that this point has been missed by RTE.

Notice Party

The Commissioner did not make a determination on this issue and did not pre-judge the

issue. In fact the Commissioner expressly stated that he was not determining the issue

since the scope of the request had not been ascertained and it was not clear whether RTÉ

could rely on the exception in regulation 9(2)(a). Nonetheless, the Commissioner was

entitled to give guidance to RTÉ without determining or pre-judging the matter. This Core

Ground should not be ruled on by the Court for the same reasons that the Commissioner

gave. Insofar as it is relevant, the Commissioner’s reference to Case T-2/03 Verein für

Konsumenteninformation was correct.”

137. Article 4(1) of the AIE directive provides:

“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.”

138. Article 9 of the 2007 regulations provides:

“Discretionary grounds for refusal of information

9. (1) A public authority may refuse to make available environmental information where

disclosure of the information requested would adversely affect—

(a) international relations, national defence or public security,

(b) the course of justice (including criminal inquiries and disciplinary inquiries),

(c) commercial or industrial confidentiality, where such confidentiality is provided for in

national or Community law to protect a legitimate economic interest, or(d) intellectual

property rights.

(2) A public authority may refuse to make environmental information available where the

request—

(a) is manifestly unreasonable having regard to the volume or range of information sought,

(b) remains formulated in too general a manner, taking into account article 7(8),

(c) concerns material in the course of completion, or unfinished documents or data, or

(d) concerns internal communications of public authorities, taking into account the public

interest served by the disclosure.”

139. There are three basic questions under this heading:

(i) is this properly a challengeable decision;

(ii) was the commissioner correct to say that RTÉ should have considered more options

before invoking the manifestly unreasonable exception; and

(iii) was the commissioner correct to hold that if RTÉ considered the request to be

manifestly unreasonable it should have engaged with the requester in line with art.

3(3) of the directive as transposed by art. 7(8) of the 2007 regulations?

Sub-issue 1 – is this properly a challengeable decision?

140. While the commissioner didn’t seem to be ultimately arguing that RTÉ couldn’t raise this

issue (a position that wasn’t altogether clear on the papers), he did seem to be arguing at the same

time that it wasn’t (or was only barely) a decision at all. Unhelpfully, the decision purports to reject

RTÉ’s arguments, but with separate weak qualifications that are contradictory:

“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(S)(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.

...

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: 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.

...

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.

...

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.

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 RTÉ 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.”

141. So which is it? Is the RTÉ position rejected “as matters stand” (para. 89), or is RTÉ not

entitled to rely on the provision (para. 91), or only disentitled from applying it in the manner it did

in this case (para. 92), or is the commissioner merely giving comments to be “considered” on

remittal (para. 73)? It can’t be all of these – indeed it can’t be more than one of these. Yet the

commissioner scolded RTÉ in the letter for its “regrettable ... haphazard” approach, “which has

involved significant shifts in its position, [which] has created unnecessary confusion and results in a

rather inefficient use ... of ... resources” (para. 11).

142. And on a second issue, the commissioner said at one place in the decision that his rejection

of RTÉ’s views on manifest unreasonableness were effectively without prejudice and don’t prejudge

anything – and on its papers seemed to cast a cloud of sorts over whether RTÉ has a right to access

to justice to challenge these, effectively because the commissioner’s statements are mere obiter

musings of no significance or status. But in the decision, he damns RTÉ for its “approach of seeking

to adopt non-committal positions ‘without prejudice’ to any desire to change its position in the future

[which] 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” (para. 12). Funnily enough, not only did the

commissioner’s decision have a without-prejudice energy on this point, but the commissioner himself

uses expressly without prejudice arguments in submissions on this issue in the present proceedings

(para. 100).

143. Carl Jung would have had something to say about accusation-as-confession (projection, in

contemporary English). Indeed one should be indebted to him for his immortal insight that, if I can

adapt it only slightly: “If there is anything that we wish to change in the [other], we should first

examine it and see whether it is not something that could better be changed in ourselves” (Vom

Werden der Persönlichkeit (1939) p. 285). On that note, the rather irritable tone of the decision is

familiar from the similar tone in the decision scrutinised in Coillte Cuideachta Ghníomhaíochta

Ainmnithe v. Commissioner for Environmental Information [2023] IEHC 640, [2023] 11 JIC 2201

(Unreported, High Court, 22nd November 2023). I appreciate that it is tiresome if public bodies

aren’t playing ball, but if the commissioner would be willing to entertain a modest suggestion in this

regard, such a tone doesn’t necessarily read very well in a forensic context. One might get better

results by majoring on educating people how to do it right rather than stressing what they are doing

wrong. In the general interests of owning it, I can comment on this from experience.

Understatement doesn’t particularly work but unfortunately neither does bracing over-candour,

especially if based on good reasons. Of the two, the former is preferable on various grounds. One’s

errors have to be regarded as volitional and as the portals of discovery, so in that spirit I hope the

commissioner will consider accepting my invitation through the latter.

144. To conclude on this issue, the decision should be read as valid rather than invalid, if a valid

reading is available. I think one can read it as an evaluation of what was before the commissioner

at the time, subject to re-evaluation following remittal, rather than impermissible prejudgment. But

that implies that it is properly challengeable here. For the avoidance of doubt, while I do not think

that the disclaimer is sufficient to prevent the decision being scrutinised thoroughly now, it does

preclude the commissioner from objecting to any points of whatever kind made by RTÉ at any future

point in this matter. The commissioner needs to be held to that as a matter of fairness. But

especially since the commissioner himself brought up the question of resources being wasted as a

result of haphazard and shifting wording, we may need to bookmark that point for costs purposes

in due course, for the purpose of looking at the problems caused by the haphazard wording of the

commissioner’s decision here in the event that the appellant is unsuccessful.

Sub-issue 2 – should RTÉ have done more to consider the options regarding identifying

information?

145. As regards whether RTÉ could have done more, Case T-2/03 Verein für

Konsumenteninformation is relevant. There, the Court of First Instance held:

“122 In this case, therefore, there are a number of factors which suggest that concrete,

individual examination of all the documents in the Lombard Club file might represent a very

large amount of work. Nevertheless, without there being any need to take a definitive view

as to whether those factors demonstrate sufficiently in law that the amount of work involved

exceeded the limits of what might reasonably be required of the Commission, it must be

pointed out that the contested decision, which refuses altogether to grant the applicant any

access, could in any event be lawful only if the Commission had previously explained

specifically the reasons for which the alternatives to a concrete, individual examination of

each of the documents referred to also represented an unreasonable amount of work.”

146. The court then held inter alia at para. 126 that “it is not apparent from the reasons for the

contested decision that the Commission considered specifically and exhaustively the various options

available to it in order to take steps which would not impose an unreasonable amount of work on it

but would, on the other hand, increase the chances that the applicant might receive, at least in

respect of part of its request, access to the documents concerned.”

147. It is possible to read the commissioner’s decision regarding the need for RTÉ to do more as

merely reflecting that caselaw. RTÉ haven’t in this case produced any argument that the Court of

Justice would be likely to differ from the Court of First Instance, now General Court, in this respect.

So while they are of course free to argue that in some future case, or even at some further stage of

the present matter if remitted, there’s no basis to overturn the commissioner’s decision here.

Sub-issue 3 – should RTÉ have invoked art. 3(3) of the directive?

148. Article 3(3) of the AIE directive provides:

“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).”

149. Article 7(8) of the 2007 regulations transposes this:

“(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.”

150. The commissioner said at para. 88:

“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, RTE 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 RTE 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.”

151. The commissioner’s view on art. 7(8) of the regulations is somewhat odd in that at para. 88

refers to “a similar approach” to that provision when that is the very provision that is relevant.

152. What should have happened, if RTÉ considered that the request was manifestly

unreasonable, was that it should have invoked art. 7(8) by reverting to the requester, or at least

done so if there wasn’t an alternative way to locate the records manageably in line with

Konsumenteninformation. There wasn’t anything wrong in principle in the commissioner saying so,

although as noted his wording is sub-optimal.

153. Overall, reading the decision in a way that makes sense rather than the opposite, no basis

has been made out to quash the commissioner’s views arising under art. 4(1)(b).

Reference to the CJEU

154. Given the diversity of approaches in Europe, while there may be compatible explanations for

these, the practice strongly indicates that the interpretation of the meaning of public authority is not

acte clair. The issue regarding material form is not acte clair either, and also meets the criteria for

referral. As a matter of discretion these questions should be referred.

155. In relation to reference to the CJEU, the parties comment as follows in the statement of

case:

“RTÉ

RTÉ considers that it is acte clair that a broadcaster such as it does not form part of the

government or other public administration, including public advisory bodies, at national,

regional or local level, within the meaning of paragraph (a) of the definition of ‘public

authority’. However, in the event that the Court were not to accept that this is acte clair,

RTÉ submits that, having regard, inter alia, to the evidence of the position in other EU

Member States, the Court could not determine this issue in the Commissioner’s favour

without a preliminary reference to the CJEU. In the event that such a reference were to be

made, the Court may also wish to consider referring additional questions relating to the

other issues in the case.

RTÉ therefore sets out below possible questions that the Court may wish to consider referring

to the CJEU:

(I) Is a broadcaster established pursuant to national law, which is funded by way of

both commercial revenue and funding provided by the State and is independent in the

pursuance of its objects and editorially and functionally independent, a public authority for

the purposes of paragraph (a) of the definition of a public authority in Article 2(2) of Directive

2003/4/EC?

(II) If the answer to Question 1 is yes, does Directive 2003/4/EC provide for an

exemption from the obligation to consider request for access to environmental information

in respect of all information relating to or concerning editorial decision making, editorial

processes and/or that which is gathered for the purposes of journalistic activity (whether

broadcast or not) and/or that which is gathered in pursuit of the right of free expression?

(III) Does the definition of environmental information encompass information on the

broadcasting of climate change, including representations made by members of the public

to a broadcaster in respect of its broadcasting on climate change?

(IV) Does the term ‘material form’ in the definition of environmental information in Article

2(2) of the Directive include an obligation on a public authority to create records, which do

not otherwise exist, for the purpose of responding to a request made pursuant to the

Directive?

(V) Does Article 4(1)(b) of the Directive permit a public authority to refuse a request for

access to environmental information where the consideration of that request would require

the review of all records held by hundreds of staff (including records held by journalists) to

identify whether they related to the subject matter of climate change and the subsequent

consideration of whether identified records would be the subject of any exemptions and

application of the public interest balancing test?

OCEI

The Commissioner comments as follows:

(I) The test for whether a body falls within paragraph (a) of the definition has already

been set out by the CJEU and thus this question is unnecessary.

(II) This question does not arise on the facts of this case and this thus inadmissible as

being purely hypothetical.

(III) This question has been determined in the previous Right to Know v OCEI & RTÉ case.

In any event, all that arises in this dispute is a disagreement on the application of the law

by the Commissioner in an area of his expertise.

(IV) This question does not arise as it is not accepted that RTÉ had to create a new

record, beyond the normal process of responding to an AIE request.

(V) This question does not arise as no findings to this effect are made in the decision.

Notice Party

The Notice Party’s comments on the proposed questions is as follows:

(I) This is acte éclairé since the Court of Justice has already ruled on the interpretation

of Paragraph 2(2)(a) of the AIE Directive in the Fish Legal judgment at §51.

(II) This question would be inadmissible since it does not arise on the facts of this case

having regard to the narrow scope of the request which did not concern confidential editorial

or journalistic information.

(III) This question would be inadmissible since there is no dispute about the correct

interpretation of the concept of ‘environmental information’ but rather the dispute is about

the application of the correct legal interpretation to a specific request. Furthermore, this

question has already been determined by the High Court in Right to Know v Commissioner

for Environmental Information and RTÉ [2021] IEHC 353, a decision which RTÉ did not

appeal.

(IV) This question presupposes that in order to respond to the request RTÉ had to create

a new record. This is not accepted. Reporting the number of representations in a decision

letter is not the creation of a new records or alternatively RTÉ could have provided the

requested information without creating a new record. The question (if it arises at all) would

be better framed in neutral terms as to what obligations a public authority has under the

AIE Directive in the circumstances of this case.

(V) This question would be inadmissible since the Commissioner did not make a binding

decision on the interpretation of Article 4(1)(b) and it has not yet been established whether

RTÉ can in fact rely on this exception.”

156. As noted above, I consider that there are significant questions of EU law here that are not

acte clair, albeit not quite the questions proposed by RTÉ. I reformulate the relevant questions

below bearing in mind the points made and issues decided in the present judgment. In accordance

with normal practice in the List, insofar as issues of EU law properly arise, which I set out below, it

would be necessary to have final written submissions from the parties in an Eco Advocacy CLG v. An

Bord Pleanála [2021] IEHC 265, [2021] 5 JIC 2704 (Unreported, High Court, 27th May 2021)

format with some modifications set out in the order below, before making the reference.

157. I am also expressly including a reminder as to the provision for amici curiae made by Eco

Advocacy. Leaving the door open to this seems particularly appropriate where, for example, the

impact on public broadcasters across the EEA may mean that there are other entities that may have

an interest in the issue, although I stress that this is only an option which I am totally neutral on

and it is entirely a matter for any given party as to whether to activate that or not. If reasonable

further time is required to consider that beyond the timelines directed below, I am open to that in

principle.

158. RTÉ stressed the question of whether a domestic competent authority carrying out the

review procedure envisaged by art. 6(2) of the AIE directive is entitled to have access to any record

held by the legal person for the purpose of determining whether any exemption from disclosure

applies, even a record which is prima facie covered by journalistic privilege, and even if the decision

to access such a prima facie privileged record is not made independently of the investigation being

conducted for the purposes of the review procedure under art. 6(2). While this is perhaps a line

call, I don’t think that that question arises in that form as a separate question for referral just yet,

although I am open to being persuaded otherwise, but that is without prejudice to RTÉ’s right to

seek to rely on this issue in submission on the primary problem of what is a public authority. If later

in this matter a particular document was identified as privileged, but was demanded by the

commissioner, that would be one of the situations of potential irreparable harm (as viewed by RTÉ

– sufficient to launch the proceedings without anticipating any outcome of such proceedings) that

would warrant court application during the process rather than awaiting a result. Most procedural

skirmishes during any given process can be rectified by a court on review or appeal. But disclosure

of privileged material relating to journalistic sources, even to a regulator, could potentially create

harm that the court would be unable to rectify, so a court must be prepared to entertain injunctive

or other proceedings should such a problem actually arise in concrete circumstances.

Possible reformulated questions

159. The next step was to consider whether any questions for the CJEU should be reformulated.

To assist that, on 19th November 2024, I circulated proposed wording and provisional wording for

the proposed relevance of the questions. The parties were invited to comment.

The first question

160. The first question was proposed as follows:

Does the definition of “public authority” in art. 2(2)(a) of the AIE directive have the effect

that a legal person governed by public law and amenable to judicial review which has been

set up by the State through statute law, which the State alone can dissolve, but having as

its primary purpose broadcasting, journalism, editorial processes and decision-making

and/or the pursuit of the right of free expression, which is publicly appointed and accountable

but which is independent in its functions and is funded by both commercial revenue and

public monies:

(a) is to be treated as a public authority in respect of all of its functions;

(b) is to be treated as a public authority in respect of its functions other than

privileged journalistic activity such as interaction with sources and functions

capable of affecting the privilege associated with such activity such as internal

editorial communications concerning sources;

(c) is to be treated as a public authority in respect of its functions other than those

concerning broadcasting, journalism, editorial processes and decision-making

and/or the pursuit of the right of free expression; or

(d) is not to be treated as a public authority?

161. The relevance was proposed as follows:

The relevance of this question is that if the answer is either (a) or (b), then the

commissioner’s conclusion is correct in its result, subject to the note below, whereas if the

answer is (c) or (d), then the decision would be set aside and no further substantive issues

would arise in the main proceedings leaving aside remittal, subject to the third question.

Note regarding the categories and their privileged status: Insofar as concerns category (i),

Copies of any guidance, training or other such advice issued to RTÉ journalists on how to

communicate/cover climate change to audience, with this part of the request to cover the

period from 1st January 2020 to the date of receipt of the request, being 19th July 2021:

[this does not relate to privileged journalistic activity.]

(ii) A record of how many representations RTÉ received regarding its coverage

of climate change from 1st January 2020 to 19th July 2021: [this does not relate to

privileged journalistic activity.]

(iii) A copy of all representations or correspondence received by RTÉ relating to

their coverage of climate change issues in 2021. In respect of this category, Mr

Foxe indicated that he would accept a representative sample of roughly 25 items of

correspondence should there be a large volume of correspondence: [the disclosed

documents (which were a random sample) do not relate to privileged journalistic

activity.] [To clarify – Is the requester contending that a random selection does not

constitute a representative sample for the purposes of the proceedings, and/or that

there is not a large volume of correspondence? If necessary, add – disclosure of all

documents would require an examination in each case of whether the documents

would impinge on privileged matters; this stage of the proceedings has not been

reached as yet].

162. The appellant commented as follows:

“RTÉ Comments

• RTÉ agrees that this issue is relevant to the determination of the proceedings

• However, RTÉ does not accept that if it is a public authority within the meaning of

(b) that the decision of the Commissioner would have been correct. The request made

includes information relating to both editorial functions and, potentially, that which can be

the subject of journalistic privilege. Consequently, the Commissioner’s decision will only be

correct if the answer is (a).

• The scope of the request is such that it encompasses matters which could be the

subject of journalistic privilege, though the precise extent of such information caught by the

request could only be ascertained by carrying out a full review of all ‘representations’

received by all persons in RTÉ, including journalists, in respect of climate change. That, of

itself, is problematic, as is would require journalists to identify material which benefits from

privilege and, given the breath of the Commissioner’s power, be potentially required to

furnish that to the Commissioner for review.

• As regards the factual basis of the question, it is a fact that the request is framed

such that it includes representations made to or information given to journalists in relation

to coverage of climate change. It is irrelevant that a full review of all information that comes

within the scope of the request has not been carried out because, at a level of principle, the

request includes material which would have the benefit of privilege.

• Given the point at issue in this question relates to whether RTÉ is a public authority

under paragraph (a) of Article 2(2) of the AIE Directive (‘government or other public

administration’), the Court can also have regard to other requests which have been made to

RTÉ, which specifically include requests for privileged material.

• RTÉ notes the position of the Commissioner that a public authority can only be ‘in’

or ‘out’ but submits that this does not preclude the referral of a question to the CJEU as to

whether there are functional exclusions or opt-outs.

• Finally, in respect of the ‘preliminary point’ made by the Commissioner, it is not

correct to say that RTÉ has never suggested that there was an option other than RTÉ not

fully being an public authority. The possibility of RTÉ being a public authority for certain,

limited, functions was specifically averted to at §8.6 of the submission made by RTÉ to the

Commissioner on 10 November 2021 (see Exhibit RD7).”

163. The respondent commented as follows:

“2. As preliminary point, the Commissioner highlights that RTE never once maintained

(until the hearing) that they were contending for any option other than RTE was ‘fully’ not a

public authority. That question can be determined and rejected (if that is the appropriate

course) and European law does not require the Court to go beyond the pleaded point of law

which was the basis of the appeal. RTE’s case at all times and indeed that specifically put

to the Commissioner was simply that it is not – at all – a public authority (i.e. option (d)).

Question (i)

The Question Itself

3. Respectfully, the Commissioner’s finding that RTE was part of the public

administration should be part of this matrix and/or the Court should reach a determination

on that point. The Directive specifically includes ‘public administration’ within the definition

and the Commissioner found RTE comes under that definition.

4. Whereas the Court may not require views on the merits (and apologies if that is the

case and this takes too much time) it is the view of the OCEI that there is no textual basis

in the Directive for options (b) and (c). In our view the only options are that RTE is fully in

as a public authority with the benefit of the exemptions or fully out. The Directive allows for

Member States exclude legislative and judicial bodies:

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

acting in a judicial or legislative capacity.’

5. There is no scope in the Directive to expand this list to other functions. As such the

Court can only rely on the definition in article 2(2) of the Directive, as implemented by Article

3 in the AIE Regulations to find that RTE is or is not a public authority. If the Court is

considering making a finding that RTE falls into category (b) or (c), it has by definition

concluded that it is a public authority under Article 2(2)(a). This is a finding, in agreement

with the Decision, that it forms part of the public administration. In our view this disposes

of the case as there is no basis for any functional opt-out beyond legislative or judicial.

6. If the Court were to create a new functional opt out for either journalistic functions

(option b) or broadcasting functions more generally (option c), what would stop other public

authorities making similar arguments in relation to important functions that they might carry

out?

Relevance of the Question

7. With regard to category (i) of the request, there is no reason to doubt the Court’s

statement that ‘this does not relate to privileged journalistic activity’. Similarly, with regard

to category (ii) there is no reason to doubt the Court’s statement ‘that this does not relate

to privileged journalistic activity.’ With regard to category (iii) the Court makes no such

statement or finding, and the Commissioner cannot factually agree the contents of the

request to a point which would enable the Court to conclude that the request actually

included or covered documents that would fall under category (c). However, the

Commissioner must accept that it is possible but RTE have not established this nor even

made the point beyond speculation which is consistent with their case being (up to the

hearing) to only contend for category (d).”

164. The notice party commented as follows:

“The Notice Party considers that this is a relevant question.

In relation to the categories of information:

(i) This is not privileged and, in any event, RTÉ indicated that it did not hold

any such information

(ii) This is not privileged and is still sought by the Notice Party

(iii) The information released is not privileged and cannot be considered

confidential on any other basis since it has been effectively released in unredacted

format. The Notice Party has clarified that it is satisfied with the information

provided in response to this part of the request apart from disagreeing with RTÉ

releasing the information on ‘pragmatic’ grounds and stating that it did not create a

precedent.

In terms of other facts, it is not disputed that Mr Dowling’s affidavit indicates that RTÉ has

received other requests for a wide range of information some of which could be considered

privileged and that there is one appeal against a refusal of seemingly privileged information

that is on hold at the moment (OCE-134526). However there is no evidence as to how RTÉ

handled, and apparently was able to refuse, the other requests for privileged information

that are identified by Mr Dowling in his affidavit. The Notice Party considers it would be

important to make factual findings in relation to how RTÉ has handled these other requests.”

165. My conclusions are that in the light of the foregoing the question is relevant but can be

reformulated.

166. The reformulated question is:

Does the definition of “public authority” in art. 2(2)(a) of the AIE directive have the effect

that a legal person governed by public law and amenable to judicial review which has been

set up by the State through statute law, which the State alone can dissolve, but having as

its primary purpose broadcasting, journalism, editorial processes and decision-making

and/or the pursuit of the right of free expression, and which is publicly appointed and

accountable but is independent in its functions and funded by both commercial revenue and

public monies:

(a) is to be treated as a public authority in respect of all of its functions;

(b) is to be treated as a public authority in respect of its functions other than

privileged journalistic activity such as interaction with sources and functions

capable of affecting the privilege associated with such activity such as internal

editorial communications concerning sources;

(c) is to be treated as a public authority in respect of its functions other than those

concerning broadcasting, journalism, editorial processes and decision-making

and/or the pursuit of the right of free expression; or

(d) is not to be treated as a public authority?

167. The relevance is:

The relevance of this question is that if the answer is (a), then the commissioner’s conclusion

on that issue is correct; if the answer is (b) then the commissioner’s conclusions on

categories (i) and (ii) would be correct insofar as relates to the issue of whether the appellant

is a public authority, and an examination of and findings in relation to the particular

documents in category (iii) would need to be undertaken; if the answer is (c) or (d), then

the decision would be set aside and no further substantive issues would arise in the main

proceedings leaving aside remittal, subject to the third question.

The second question

168. The second question was proposed as follows:

If the answer to the first question is in a sense equivalent to (a) or (b) in that question, does

the requirement that records exist in material form as provided for in art. 2(1) of the AIE

directive have the effect that where a request is made seeking a record (the first-mentioned

record) of the number of records (the second-mentioned records) of a particular type, the

public body concerned is required to count the number of such second-mentioned records

and create the first-mentioned record of that number if such a first-mentioned record does

not otherwise exist?

169. The relevance was proposed as follows:

The relevance of this question is that subject to the previous question, if the answer is yes,

the commissioner’s decision would be upheld on this point whereas if the answer is no, it

will be set aside at least to that extent in the main proceedings.

170. The appellant commented as follows:

“RTÉ Comments

• RTÉ agrees that this question is relevant to the determination of the proceedings

(though it only arises for determination if RTÉ is considered to be a ‘public authority’ within

the meaning of Article 2(2)(a)).

• RTÉ also agrees with the Commissioner’s comment that the request is for

information rather than for a record. The dispute in the proceedings is whether RTÉ is

required to create information in the form of a record of the number of representations

received on the issue of coverage of climate change as the information sought by Right to

Know is not available in material form.”

171. The respondent commented as follows:

“Question (ii)

The Question Itself.

8. This questions appears to the OCEI to be in substance the issue set out in the

pleadings and submissions of the parties. However, it is important to note the request is

not for a record, it is for information. The Commissioner’s position has been that the

Directive may well require a request for information to require the creation of a record, but

for complete accuracy, the request is for information.

9. The position of the OCEI is that in the Decision, Respondent’s Notice and legal

submissions. The right under the Directive is to seek information and not records. R2K

sought information from RTE. The sequence of this is that RTE will have to create a record.

But as set out in the Statement of a Case, it is always the case that a public authority has

to create a record on foot of an AIE request. It is best practice to count the number of

records that are covered by a request for information and to create a schedule of these

records. Thus the finding in the decision that RTE count the number of submissions covered

by the request is not in any way a departure from what RTE should have been doing under

the AIE Regulations since 2007.

Relevance of the Question

10. The Commissioner has no observations on this.”

172. The notice party commented as follows:

“The Notice Party agrees that this is a relevant question

In the Notice Party’s view this question should be modified as follows:

(a) Does answering the request involve the creation of a new record?

(b) If the answer to this question is ‘yes’ then the question posed by the Court concerning

an obligation to create a record arises

(c) If the answer to part (a) is ‘yes’ and to part (b) is ‘no’ the court should ask what

obligations (if any) are imposed on a public authority under Article 3(3), 3(5)(a), 3(5)(c),

and 4(5) of the AIE Directive where it has information relevant to a question asked by an

applicant but does not hold a specific record responsive to the request.

The Notice Party considers that the facts as set out in the affidavits are sufficient to ground

this question”

173. My conclusions are that in the light of the foregoing the question is relevant but can be

reformulated.

174. The reformulated question is:

If the answer to the first question is in a sense equivalent to (a) or (b) in that question, does

the definition of “environmental information” in art. 2(1) of the AIE directive and in particular

the term “material form” have the effect that where a request is made seeking information

as to the number of records of a particular type, the public body concerned is required to

count the number of such records and create a record of that number embodying the

requested information in material form, if the information does not otherwise exist in

material form apart from the extent to which it is capable of being extrapolated by counting

the records concerned?

175. The relevance is:

The relevance of this question is that subject to the previous question, if the answer is yes,

the commissioner’s decision would be upheld on this point whereas if the answer is no, it

will be set aside at least to that extent in the main proceedings.

The third question

176. The third question was proposed as follows:

Does art. 6(1) and/or (2) of the AIE directive and/or art. 9(1) of the Aarhus Convention

and/or art. 47 of the EU Charter of Fundamental Rights insofar as the foregoing relate to the

requirement that remedies be timely and/or expeditious have the effect that a national

review body and/or a court acting under art. 6(2) of the AIE directive and/or art. 9(1) of the

Aarhus Convention and/or art. 47 of the EU Charter of Fundamental Rights is entitled or

required to interpret national law to the maximum extent possible to enable it to make a

final decision on the request to which the review procedure or judicial procedure as the case

may be relates, if necessary by making findings of fact and evaluative judgments in relation

to the request in the light of circumstances in being as of the date on which the body or

court is seized of the matter, in circumstances where remittal of the matter for either further

fact-finding or a fresh decision would either create or prolong undue delay in finalising the

response to the request.

177. The relevance was proposed as follows:

The relevance of this question is that, subject to RTÉ being a public authority for any relevant

purpose, if the answer is no, any ruling of the CJEU would be required to be implemented

by the referring court either itself or by remittal to the commissioner. The commissioner

might then himself remit the matter to RTÉ for a fresh decision. The overall process would

by that stage be in its sixth year since the request for information was made, which would

constitute an undue delay. If the answer is yes, the referring court would be in a position

to exercise its full original jurisdiction to finalise the request itself and if necessary to find

facts and/or undertake evaluations for that purpose. If the referring court is not entitled or

required to do that, the commissioner could on remittal exercise his powers in that manner

if required to do so.

178. The appellant commented as follows:

“RTÉ Comments

• This question could only arise in the event that RTÉ was determined to be a public

authority within the meaning of Article 2(2)(a) of the AIE Directive and, any comments made

by RTÉ hereunder are strictly without prejudice to the contention that it is not a public

authority.

• RTÉ has not taken issue with the procedures by which the Commissioner determined

the appeal, save as regards the question of pre-determination.

• To-date, the request has been determined in accordance with the procedures

established by the AIE Regulations, including as regards the specific time limits which are

identified in the Directive.

• There is no challenge in the appeal to the validity of the AIE Regulations nor is there

any argument made that the procedures in those Regulations do not properly give effect to

rights established under the Directive.

• In these circumstances and in light of the foregoing, it is not clear to RTÉ that this

issue arises on the pleadings or that its resolution is therefore necessary to determine RTÉ’s

appeal.

• If it is determined that RTÉ is a public authority for the purpose of the Directive, any

procedures which are adopted for the determination of the request should fully respect the

rights of RTÉ to address ... the request at first instance in light of the procedures and

requirements of the Directive and the AIE Regulations, having regard to any judgment of

this Court and/or the CJEU.”

179. The respondent commented as follows:

“Questions (iii)

11. It is unfortunate that delay through the legal system is a feature of the AIE regime.

The reality is that if any entity that receives an AIE request argues that it is not a public

authority, this is a threshold jurisdictional issue that must be finalised before any

consideration can be given to release of any environmental information held by it. By

necessity the entity asserting that it is not a public authority has a right of appeal to the

High Court on a point of law, with a subsequent appeal to the Court of Appeal and Supreme

Court. It is unavoidable that this process will be time-consuming.

12. In a normal public authority case, the OCEI would not examine the issue of

environmental information or the application of exemptions as it does not have jurisdiction

over bodies that are not public authorities. However, in this case the OCEI has already found

that RTE was a public authority and RTE did not challenge that decision. As such the decision

under appeal dealt with the public authority point and then considered the substance of the

appeal.

13. The Minister, in enacting the AIE Regulations, created the OCEI as the primary

appellant body for AIE appeals with a de novo jurisdiction and investigative powers. The

AIE Regulations gives a limited right of appeal to parties affected by those decisions. The

jurisdiction of the Superior Courts in such an appeal is well settled, there is no deference to

findings of law but there is significant deference to findings of fact within the expertise of

the Commissioner. AIE appeals are now part of the expedited procedure in the High Court’s

Planning and Environment List. We do not accept that there was delay in this case. It was

appealed by RTE on 31st January 2024 and has already been heard. We are awaiting

judgment on a primary net issue, whether or not RTE is part of the public administration of

the State. An expedited procedure, it seems, could have been requested.

14. RTE has not pleaded in the appeal that there were deficiencies in the OCEI’s

investigation.

15. This is to be contrasted with the findings of the Supreme Court in Raheenleagh. In

that case it was accepted by the Commissioner during the litigation that there were factual

deficiencies in the original decision and that the OCEI was the most appropriate forum for

those deficiencies to be addressed. Indeed, it was the decision of the High Court to make

first instance findings, and the Court of Appeal to make alternative first instance findings,

that compounded the delay caused by the initial error by the Commissioner.

16. It is not necessary for the High Court to make primary findings of fact or carry out

evaluations. In this case the OCEI made the key finding of fact, that being on an application

of the Fish Legal test that RTE was part of the public administration. This has been

challenged as an error of law by RTE. The view of the OCEI is that it is an Article 6(2) body.

The decisions of the OCEI become final once any appeal period to the High Court is ended,

or on the conclusion of the statutory appeals process.

17. Finally, with regard to the statement of the Court that ‘If the answer is yes, the

referring court would be in a position to exercise its full original jurisdiction to finalise the

request itself and if necessary to find facts and/or undertake evaluations for that purpose’,

it is not clear to the Commissioner how the Court would be in that position save for the Court

to take full seisin of the matter rather than the matter going back to RTE. That would seem

to involve the Court first assuming RTE’s role (or supervising it) and being involved in making

conclusions or mediating some engagement over the extent of the request and/or narrowing

it with engagement with the Requester (i.e. ‘finalising the request itself’) and then having

information produced to it, reaching conclusions on its contents and presumably reaching

conclusions on the exemptions. Whereas it is possible that the Court could achieve this

quicker than RTE and the Commissioner, it is also possible that a Court could give directions

on time-frames and a further issue that arises in the balance is the trade-off against the

costs of such an exercise and where and by who those costs would be born.

18. The Commissioner would simply observe that if the Court’s concern is simply with

finalising the request (i.e. carrying out the narrowing), the whole process here (and indeed

the hearing) appears premature in circumstances where – had it been asked – the Requester

may well not be concerned with any information in this request that would be covered by

journalistic privilege.

19. Finally, the question of the relationship between the OCEI and the Superior Courts

is predominantly one of national law. Any consideration of a change to the well-established

division of responsibility of an expert decision-maker and the High Court in an appeal on a

point of law should involve the relevant Minister, here the Minister for Environment, Climate

and Communications.”

180. The notice party commented as follows:

“The Notice Party agrees that this is a relevant question

The Notice Party considers that reference to Article 9(4) of the Aarhus Convention should be

included since it is this provision which gives rise to an obligation of timeliness. The question

should also refer to ‘adequate and effective’ remedies in the same context since these

aspects were of concern to the Aarhus Convention Compliance Committee in its findings on

case C/141 (report of 1 February 2021, §133(b)) in relation to court rulings on threshold

issues, such as whether a body is a public authority.

The Notice Party considers that the facts as set out in the affidavits are sufficient to ground

the question.

The Notice Party thinks it would assist the Court of Justice if a comprehensive description of

the relevant Irish procedural law was included in the order for reference.”

181. My conclusions are that in the light of the foregoing the question is relevant but can be

reformulated.

182. Part of the context here is the principle that where a member state’s law does not so provide,

and the decision-maker produces an inconsistent decision following any given judgment, the national

“court or tribunal must vary that decision which does not comply with its previous judgment and

substitute its own decision for it as to the application ... disapplying as necessary the national law

that would prohibit it from proceeding in that way”: judgment of 29 July 2019, Alekszij Torubarov v

Bevándorlási és Menekültügyi Hivatal, C-556/17, ECLI:EU:C:2019:626 (Grand Chamber). Order 84

RSC allows this, either by mandamus or by directions following certiorari. This question poses a

related question going just one step further – should the court cut the Gordian knot in the

administrative process if further delay would breach EU law rights?

183. The reformulated question is:

If the answer to the first question is in a sense equivalent to (a) or (b) in that question, does

art. 6(1) and/or (2) of the AIE directive and/or art. 9(1) and/or (4) of the Aarhus Convention

and/or art. 47 of the EU Charter of Fundamental Rights insofar as the foregoing relate to the

requirement that remedies be timely and/or expeditious have the effect that a national

review body and/or a court acting under art. 6(2) of the AIE directive and/or art. 9(1) and/or

(4) of the Aarhus Convention and/or art. 47 of the EU Charter of Fundamental Rights is

entitled or required to interpret national law to the maximum extent possible to enable it to

make a final decision on the request to which the review procedure or judicial procedure as

the case may be relates, if necessary by making findings of fact and evaluative judgments

in relation to the request in the light of circumstances in being as of the date on which the

body or court is seized of the matter, in circumstances where remittal of the matter for either

further fact-finding or a fresh decision would be likely to occasion further delay which would

contravene EU law by failing to ensure an outcome to the request for information in a manner

that was timely and/or expeditious.

184. The relevance is:

The relevance of this question is that, subject to RTÉ being a public authority for any relevant

purpose, if the answer is no, any ruling of the CJEU would be required to be implemented

by the referring court by remittal to the commissioner. There is a substantial prospect that

the commissioner could then himself remit the matter to RTÉ for a fresh decision. The

overall process would by that stage be in its sixth year since the request for information was

made, which would perpetuate an undue delay in breach of EU law. If the answer is yes,

the referring court would be in a position to exercise its full original jurisdiction to finalise

the request itself in a timely manner having afforded a hearing to the parties and if necessary

to find facts and/or undertake evaluations for that purpose.

Summary

185. In outline summary, without taking from the more specific terms of this judgment:

(i) The issue in core ground 1, of the extent, if any, to which RTÉ is a public authority,

should be referred to the CJEU.

(ii) The issue in core ground 2, the claim that the commissioner applied the wrong test

as to environmental information, or failed to specify which sub-paragraph applied,

or failed to give sufficient detail in reasoning, has not been made out by the

appellant.

(iii) The issue in core ground 3 of the alleged duty to create a new record, should also

be referred to the CJEU.

(iv) The issue in core ground 4 regarding manifest unreasonableness has not been made

out by the appellant. The decision was sufficiently definite as to be challengeable in

the proceedings. However the commissioner’s haphazard phrasing, which involved

significant shifts in wording, created unnecessary confusion, and sought to adopt

non-committal positions without prejudice to potentially changing his position in the

future, impacting adversely on the application of the access to justice provisions of

art. 6 of the AIE directive. This may be relevant to costs in due course subject to

submissions in that regard. Nonetheless, no basis to quash the substance of the

findings, such as they are, on the issue of manifest unreasonableness has been made

out. Where such an issue arises, and subject to any further argument on remittal

in the present case, a requestee should explore reasonable options to respond to

the request that can be carried out without excessive difficulty and/or revert to the

requester under art. 3(3) of the directive.

(v) The procedural question of whether the requirement of expedition or timeliness

requires the commissioner and/or the court to engage in fact-finding and evaluation

to finalise the request, rather than remit it, in order to avoid a breach of those EU

law requirements of timeliness and expedition, should also be referred to the CJEU.

(vi) A decision by the court is not precluded by the fact that the commissioner did not

decide all issues in that regard, because this is agreed by all parties not be a factor

preventing that, on the basis that that is not pleaded as a bar to dealing with the

matter (agreed to by all parties) and additionally because the case is said to be

distinguishable from Raheenleagh (agreed to by opposing parties).

Order

186. For the foregoing reasons, it is ordered that:

(i) the identified questions be in principle referred to the CJEU under art. 267 TFEU;

(ii) the appellant be directed to serve the CSSO on behalf of the Minister for

Environment, Climate and Communications (as suggested by the commissioner),

Ireland and the Attorney General with all papers by 13th January 2025 (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;

(iii) the parties are to provide simultaneous submissions by 24th January 2025 setting

out the following:

(a) a list of any additional provisions of domestic legislation they consider

particularly relevant to answering the questions other than provisions set out

under the heading of Domestic law in this judgment;

(b) a list of any additional provisions of European law they consider particularly

relevant to answering the questions other than provisions set out under the

heading of EU law in this judgment;

(c) a one-sentence summary of the party’s proposed answer to each question

(maximum 200 words per question) (and for clarity, submissions on the wording

of the questions are not being particularly invited unless a party considers that

the court has overlooked something crucial or considers that additional questions

are necessary);

(d) separately and optionally, more detailed reasons for the foregoing if they so wish

(if for example the notice party thinks that a comprehensive description of Irish

procedural law would be of assistance it should prepare such a text within 7

days, giving other parties 7 days to include any counter-responses in their own

more detailed replies); and

(e) whether there should be any amici curiae added to the proceedings prior to the

reference being made;

(iv) if Ireland and the Attorney General wish to make a submission, such submission be

furnished by 24th January 2025;

(v) in line with Eco Advocacy, if any one or more amici curiae is to be added, such

entities would bear their own costs throughout, in the Irish courts and in

Luxembourg, and would not have any liability for the costs of any other participant

in the proceedings, and that such entities would get involved on a written-

submissions-only basis unless otherwise ordered, and the parties will have liberty to

make any enquiries with any suitable entities whether domestic, European or

international if and to the extent that they think fit, and for the avoidance of doubt

have liberty to convey this judgment in unapproved form and any of the papers to

any proposed amicus curiae;

(vi) within seven days from it being determined whether the Minister for Environment,

Climate and Communications, Ireland and the Attorney General and/or any amici

curiae are to be parties to the proceedings:

(a) the parties be required to complete the CJEU contact sheet set out in guidance

notes to Practice Direction HC126 and submit that sheet to the List Registrar

copying the relevant judicial assistant; and

(b) each party be required to advise the List Registrar as to whether any natural

persons mentioned in this judgment who has sworn an affidavit for such party

or is otherwise referred to on their behalf wish their names to be anonymised for

the purposes of the CJEU proceedings and judgment;

(vii) following any such submissions, the court will issue the formal judgment for

reference which will set out the final text of any questions together with material

drawn from the parties’ submissions;

(viii) the appellant as document management party be then required to prepare a draft

contents page of documents for the CJEU and to agree this with the other parties or

apply to the court in default of agreement. This should include:

(a) all relevant pleadings/ affidavits/ exhibits/ other documents; and

(b) all relevant judgments/ orders in the case including the formal order for

reference when perfected and the final judgment for reference when delivered;

(c) this should not include cases or other authorities, especially where these are

already cited in the judgment for reference;

(d) once the contents page is agreed, it is then the function of the document

management party to prepare electronic versions for the CJEU as follows:

(I) all files should be in PDF format not exceeding 30 MB;

(II) the judgment for reference should be a single standalone PDF

clearly identified as such; that PDF should be sent in a form (which

should be final but may be unsigned) that preserves the

hyperlinks and not as a scanned picture of the signed version;

(III) all other documents should be bundled together in a single PDF

(or more than one if required to comply with the 30MB file size

limit); and

(IV) the completed form of the contact details of the parties in the

form attached to guidance notes to Practice Direction HC126;

(e) once prepared, the PDFs should be sent to the List Registrar by email or file

sharing link, and for this purpose parties should not use password protected file

transfers, this process to be completed within 28 days from the date of this

judgment;

(ix) once the matter is formally referred, the parties should liaise to ensure that the

referring court is copied with all submissions including those of member states and

EU institutions, and the Advocate General’s opinion, when permitted to do so by the

rules of procedure of the CJEU, and to copy the referring court with relevant

notifications such as regarding the date of any oral hearing, any opinion of the

Advocate General, the date of delivery of the judgment and the judgment itself;

(x) all time periods in this order exclude vacations;

(xi) all costs to date be reserved; and

(xii) the matter be listed for mention on 27th January 2025.