Court of Appeal dismisses Commissioner's appeal, ruling transcript not environmental info and copyright claim failed.

APPROVED NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

High Court Record Number: 2022/279MCA

Court of Appeal Record Number: 2024/109

Neutral Citation: [2026] IECA 57

Costello P. Butler J. O’Moore J.

BETWEEN/

ELECTRICITY SUPPLY BOARD

RESPONDENT/

APPELLANT

– AND –

COMMISSIONER FOR ENVIRONMENTAL INFORMATION

APPELLANT/

RESPONDENT

– AND –

RIGHT TO KNOW CLG AND GWEN MALONE STENOGRAPHY

SERVICES UNLIMITED COMPANY

NOTICE PARTIES

JUDGMENT of Butler J. and O’Moore J. delivered on the 17th day of April 2026

Introduction

1. This is an appeal taken by the Commissioner for Environmental Information (“the Commissioner”) from a decision of the High Court (Heslin J. [2024] IEHC 17) allowing an appeal taken by the Electricity Supply Board (“ESB”) from a decision of the Commissioner dated 29th August 2022 made under the EC (Access to Information on the Environment) Regulations 2007 to 2018 (“AIE Regulations”). The Commissioner directed the release of the transcript of a two-day hearing held before a property arbitrator in June 2017. The property arbitration was held with a view to determining the amount of compensation to which certain landowners were entitled under statute in respect of interference to their land caused by a wayleave in favour of ESB. The wayleave in turn facilitated the construction of the Clashavoon/Dunmanway 110kV powerline, an electricity infrastructure project which had been approved earlier in an entirely separate environmental decision-making process.

2. In directing the release of the transcript, the Commissioner determined firstly that the transcript was “environmental information” within the meaning of Article 3(1)(c) of the AIE Regulations and, secondly, that it was not an original literary work subject to copyright such as to entitle ESB to rely on the discretionary ground for refusal of access provided under Article 9(1)(d) of the AIE Regulations. The High Court held that the Commissioner had erred in law in reaching both of these conclusions. The High Court also held that the Commissioner had failed to provide adequate reasons for his conclusions both generally as regards the conclusion that the transcript constituted environmental information and, more specifically as regards the copyright issue. The Commissioner had made a prior decision on an earlier request for access to the same transcript in which it was held that the transcript was subject to copyright and, thus, came within the scope of the discretionary grounds for refusal of access under Article 9(1)(d).

3. The appeal to the High Court was taken by ESB under Article 13(1) of AIE Regulations. That article allows for an appeal “on a point of law from the decision” of the Commissioner. Much of the argument on this appeal centred on whether the High Court had exceeded the jurisdiction conferred on it by this article and, as contended for by the Commissioner, substituted its own decision on the merits for that of the Commissioner. This in turn involved consideration of whether the decision made by the Commissioner was one based on findings of primary fact made by him on evidence before him or, alternatively, whether it entailed the determination of what were essentially legal issues based on submissions made to the Commissioner by the parties. Thus, the primary issue to be determined on this appeal is the nature and scope of an appeal on a point of law under Article 13(1) of the AIE Regulations in circumstances where the parties were not in dispute as to the legal test to be applied to the two disputed issues.

4. The resolution of that issue will have a significant bearing on how this court then approaches the two disputed issues, namely whether the transcript constitutes environmental information and, if so, whether it is subject to copyright. If the court concludes the transcript is not environmental information, then, strictly speaking, that is determinative of the entire appeal since the discretionary entitlement of a public authority to refuse access to material under Article 9(1)(d) where disclosure would adversely affect intellectual property rights only arises where the information in question constitutes environmental information. However, for completeness we will deal with all of the issues raised in this appeal.

5. In the course of this judgment, we refer to the parties, each of whom has been at various times both the appellant and the respondent, as the Commissioner and ESB respectively. The notice parties did not participate before either the High Court or this court. Right to Know CLG is the entity which made the request for access to the transcript and brought an appeal to the Commissioner under Article 12 of the AIE Regulations from the ESB’s decision to refuse access. Gwen Malone Stenography Services (“GMSS”) is the stenography company whose services were engaged by ESB for the preparation of a transcript of the arbitration hearing and which provided a copy of the transcript to the ESB under licence. Under the terms and conditions of that licence, GMSS retained copyright in the transcript. GMSS engaged in the process before the Commissioner through its solicitors and maintained its claim of copyright in the transcript.

6. The structure of this judgment is as follows. Firstly, we will set out the background to the appeal, mentioning where relevant the key features of the decisions made in the course of the process before both the ESB and the Commissioner. More detailed reference will be made to those decisions where appropriate when looking at the specific legal issues arising on the appeal. We will then briefly outline the High Court decision from which this appeal is taken, the grounds of appeal and the response thereto. Again, more detailed reference will be made to these when looking at the specific legal issues. Then we will set out the legislative framework within which the relevant decisions fell to be made.

7. We will approach the legal issues by looking initially at the scope of the appeal from the Commissioner to the High Court before considering the definition of environmental information and the application of that definition to the facts of this case. Before turning to the copyright issue, we will address the Commissioner’s reasoning in respect of which two discrete issues arise. These are whether the Commissioner has appealed the findings of the High Court regarding the inadequacy of his reasons generally and whether sufficient reasons were given by the Commissioner regarding the alteration of his position from his prior decision on the copyright issue. Finally, we will deal with the copyright issue and whether ESB is entitled to invoke the ground for refusal of access based on an adverse effect on intellectual property rights under Article 9(1)(d).

Factual Background

8. The background to this appeal is unusual, and unusual in a manner which is potentially relevant to some of the legal issues which arise. The ESB (along with EirGrid) is responsible for the provision and operation of certain electrical infrastructure in the State. It has statutory powers under the Electricity (Supply) Act 1927, as amended, to facilitate the construction of electricity infrastructure on and across land which it does not own.

9. In October 2012, following a decision-making process in which the public had a right to participate, An Bord Pleanála granted approval for the construction of a 110 kV overhead line between Clashavoon and Dunmanway in County Cork. Certain non-material alterations were subsequently approved in January 2016.

10. The line, as approved, traversed the lands of a number of landowners including a couple to whom we will refer as “the landowners”. ESB has a right to acquire a wayleave across land for the purposes of any electrical line under s. 53 of the 1927 Act subject to a landowner’s right to compensation in respect of the exercise of such wayleave (section 53(5)). If compensation is not agreed between ESB and an affected landowner, it is assessed by a property arbitrator under the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919. In this instance compensation was not agreed and the landowners proceeded to arbitration before a property arbitrator on 19th and 20th June 2017. A property arbitration is a public hearing in the sense that it is open to the public to attend such hearings but they rarely attract much interest beyond the parties themselves. The general public has no right to make submissions to the property arbitrator. ESB engaged the stenography services of GMSS to prepare a transcript of the hearing. The transcript records what occurred at the hearing, i.e. any evidence called and any arguments or submissions made but does not record the arbitrator’s decision which is delivered subsequent to the hearing.

11. On 18th October 2017 Mr. Lar McKenna made a request for access to certain documents under the AIE Regulations to the ESB. These documents included the transcript of the hearing before the property arbitrator. Apparently, Mr. McKenna had provided advice to the landowners in the course of their compensation claim. ESB declined the request for access to the transcript on 17th November 2017 on two grounds. It disputed the contention that a document which may contain some environmental information is, in its entirety, environmental information. However, ESB did not determine definitively whether the transcript contained environmental information because it relied on the intellectual property ground for refusal of access under Article 9(1)(d) and the copyright held by GMSS in the transcript. It concluded that the public interest in upholding the copyright outweighed the public interest in disclosing the transcript. An internal review requested by Mr. McKenna affirmed the original decision in January 2018 on somewhat broader grounds. As these broader grounds were rejected by the Commissioner and not pursued by the ESB, we will not address them further.

12. Mr. McKenna brought an appeal to the Commissioner under Article 12(3) of the AIE Regulations. A copy of the transcript was provided by ESB to the Commissioner for the purposes of this review. Solicitors on behalf of GMSS wrote by letter dated 19th July 2018 confirming that GMSS held copyright in the transcript and submitting that the disclosure of the transcript would breach its property rights and cause economic harm to it. The Commissioner delivered a decision on 13th December 2018 (“the Commissioner’s first decision”) which held that ESB could not rely on the ground for refusal under Article 9(1)(d) without firstly deciding if the transcript was or was not environmental information. He held that the transcript was environmental information under Article 3(1)(c) of the Regulations. He then considered copyright under Article 9(1)(d) and looked at Irish, English and European jurisprudence on this issue. He found that the transcript was an original literary work within s.17(2) of the Copyright and Related Rights Act 2000 (“the 2000 Act”) and that disclosure would adversely affect the intellectual property rights of GMSS. Finally, he applied the public interest balancing test under Article 10(3) of the AIE Regulations and found that the public interest in maintaining the exception under Article 9(1)(d) outweighed the public interest in disclosure of the information sought. Nonetheless relying on Article 7(3) of AIE Regulations which allows access to be provided to information in a different form than that requested, he directed that Mr. McKenna should be allowed to inspect the transcript at the offices of ESB but not to copy or reproduce it.

13. ESB brought an appeal to the High Court under Article 13(1) of AIE Regulations which was heard by O’Regan J. who delivered judgment on 3rd April 2020 ([2020] IEHC 190). O’Regan J. rejected various complaints regarding breaches of fair procedures made by ESB. She then addressed the question of whether the transcript was correctly characterised by the Commissioner as environmental information. Having reviewed the case law (much of which will be considered further below) she reached a number of conclusions, the overall effect of which was to find that the manner in which the Commissioner had reached his decision that the transcript came within Article 3(1)(c) of the AIE Regulations was not lawful. Central to these conclusions was the fact that it was not apparent from the Commissioner’s decision that he had had regard to the content of the transcript and his decision that the compensation process for the compulsory acquisition of rights in land was a measure affecting or likely to affect the environment was context-specific rather than fact-specific. She stated at para. 50(5) of her judgment: – “I am satisfied that, having regard to the jurisprudence identified, it is not possible for the Commissioner to come to a valid decision that because the payment of compensation is integral in terms of constitutional requirements, that that in and of itself makes the information contained in the transcript a measure and/or activity within the meaning of Article 3(1)(c), without either, in accordance with the CJEU decisions aforesaid, specifying how the information is environmental on the content of the transcript, or how same is integral to the development of electricity infrastructure.” The remainder of O’Regan J.’s judgment deals with the application by the Commissioner of the public interest test under Article 10(3) and his decision to allow inspection of the transcript under Article 7(3). She found this part of the decision to be confusing and contradictory to the point of being irrational. The appeal before O’Regan J. (taken by ESB) did not question the correctness of the Commissioner’s conclusion that the transcript was an original literary work covered by copyright. Indeed, the proposition that it was, was the starting point for her consideration of whether the public interest balancing test under Article 10(3) was correctly applied.

14. Mr. McKenna did not appeal the judgment of O’Regan J. However, within a very short time after the delivery of that judgment, on 28th April 2020 Right to Know CLG made an application to ESB under the AIE Regulations for “a soft copy of the transcript that was requested by Mr Lar McKenna”.

15. Access was again refused by ESB in a decision reflected in a letter dated 27th May 2020. The refusal was based on three grounds. The first was that the request was manifestly unreasonable under Article 9(2)(a) of the AIE Regulations in that it would involve the review of nearly 500 pages of transcript to search for information that might constitute environmental information in circumstances where the review of ten sample pages had not revealed the presence of any environmental information. Secondly, the transcript in its entirety was not environmental information and, thirdly, that if the transcript was environmental information, it was subject to copyright.

16. In seeking an internal review of this decision on 10th June 2020, Right to Know emphasised inter alia that the request was not unreasonable and that it was unnecessary to review the 500 pages of transcript “since the entire transcript is environmental information”. The ESB review decision of 9th July 2020 varied the original decision but still refused to grant access to the transcript. The reviewer did not agree that the request was manifestly unreasonable. He concluded that the transcript in its entirety was not environmental information and proceeded to consider whether there was environmental information contained within the transcript. On the basis that he had identified information which “may fall within the definition of environmental information” under the Regulations, he then addressed the copyright issue to decide whether some or all of that information should be released. He held that the transcript was an original literary work subject to copyright, the release of which would adversely affect the intellectual property rights since, once released under the AIE Regulations, neither ESB nor the copyright holder could police the use of the transcript. He weighed the public interest factors and concluded that the public interest would not be served by disclosure. Because of the nature of the Commissioner’s decision, this is the last occasion on which the balancing exercise regarding public interest under Article 10(3) of the AIE Regulations was carried out.

17. On 28th July 2020 Right to Know appealed this decision and the matter came back before the Commissioner. The significance of this is that a little over 18 months after his first decision, the Commissioner was asked to revisit that decision in respect of the exact same information. Whilst a requestor is not obliged to advance any grounds as such in seeking access to environmental information, once access has been refused for specific reasons the requestor is given the opportunity to make submissions on those reasons. The material before the court suggests that, although they are set out in greater detail, the grounds relied on by Right to Know were not materially different to those relied on by Mr. McKenna in respect of the Commissioner’s first decision.

18. The Commissioner assigned the case to an investigator and the conduct of the investigation entailed detailed exchanges between the parties and the investigator over the course of 2022. We do not propose to set out those in detail except to note four matters which are relevant to the legal arguments before us:

(1) While the ESB’s response is focused on the transcript in its entirety (since this is what the request sought) the investigator raised a query premised on the ESB’s internal reviewer having identified within the transcript information which they considered to be environmental information. The ESB’s response on this issue is more qualified. It accepted “that there is a possibility that the transcript may contain environmental information” and that the internal reviewer formed the view “some information therein might be considered environmental information”. It disputed that Right to Know had a right to access information that was not environmental information merely because it was contained within the same document as other information which might be environmental information.

(2) ESB’s initial submission assumed that the Commissioner would adopt a consistent approach in light of its first decision which held that the transcript was a literary work for the purposes of s. 17(2) of the 2000 Act and that a refusal of access was justified under Article 9(1)(d) of the AIE Regulations. In a letter dated 3rd March 2023 the investigator replied: “However, you should be aware from previous engagements with this Office that the Commissioner conducts a fresh review of all cases before him and is not bound to follow previous decisions.” Whilst noting that her views were not binding on the Commissioner, the investigator set out her view that the European jurisprudence set a higher test for work to be covered by copyright than did the English decisions relied on by the Commissioner in his first decision and that the term “intellectual property rights” under Article 9(1)(d) had to be interpreted in accordance with EU law. She invited further submissions to address those views. These were provided by ESB on 28th March 2022. ESB acknowledged that decisions of the Commissioner do not constitute binding precedents but contended that the issue as to whether the transcript was an original literary work had already been determined by the Commissioner and that the relevant legal principles had been specifically applied to the facts of this appeal.

(3) In addition to the solicitor’s letter on behalf of GMSS dated 18th July 2018, which ESB provided to the Commissioner, a further, more detailed submission was made by solicitors on behalf of GMSS on 11th April 2022. This set out the basis upon which it was contended that intellectual property rights attached to the transcript, why it was contended those rights would be adversely affected by the disclosure of the transcript and why the interest served by the protection of the intellectual property rights of GMSS should outweigh the public interest in disclosure.

(4) The Commissioner was provided with the transcript and a copy of the terms and conditions under which the transcript was produced and provided by GMSS to ESB. These documents constitute the substantive evidence which was before the Commissioner.

19. The Commissioner’s decision issued on 29th August 2022. Again, we do not propose to analyse this in detail at this point and the relevant parts will be addressed below under the appropriate headings. The decision expressly records that the Commissioner had “examined the contents of the records at issue”. He identified two issues to be addressed, namely whether the transcript is environmental information and, if so, whether ESB could rely on Article 9(1)(d) to refuse access to it.

20. In considering the environmental information question, the decision records that ESB accepted that parts of the transcript are environmental information. As noted above, this characterisation seems to go further than ESB actually did. Paragraph 13 identifies the issue under Article 3(1)(c) as being whether the transcript is information “on” a measure affecting or likely to affect the environment, where both parties agreed that the electricity line was a “measure” within the meaning of the Article. Paragraph 14 adopts the Henney test (Department for Business, Energy and Industrial Strategy v. Information Commissioner & Henney [2017] EWCA Civ 844) as regards the “information on” element of the definition.

21. The only express reference to the contents of the transcript is at para. 23 of the decision where the Commissioner notes that having reviewed the transcript “the electricity line had yet to be placed on the relevant land at the time of the hearing and one of the arguments put forward by the landowners was that ESB had not provided sufficient detail as to the impact such placement would have on their rights in respect of the land”. However, that is immediately followed by a statement at the beginning of para. 24 “Regardless of whether or not decisions in relation to the electricity line had been complete at the time of the hearing, I do not agree with ESB’s argument that providing the public with the Transcript would not contribute to greater public participation in decision-making”. Thus, it seems the only element of the transcript expressly referred to by the Commissioner was not regarded by him as material to the decision he had to make. In passing, insofar as the reference to the electricity line “yet to be placed” is intended to suggest that there remained some uncertainty and, consequently a decision to be made about the placement of the line, we note and agree with the comments made by Heslin J. at para. 100 of his judgment. The property arbitrator has no jurisdiction whatsoever to decide on or alter the route of the line which had previously been approved in a completely separate process.

22. Ultimately the Commissioner held that the transcript was environmental information because:

(1) Payment of compensation was integral to the placement of electricity lines in the State;

(2) Access to information on the arbitration process (in relation to payment of compensation) would allow the public to participate in debates about future projects and;

(3) As compensation payments are part of the cost of electrical infrastructure, access to information about the compensation process enables the public to better understand the system for the development of electricity infrastructure. The Commissioner concluded this part of his analysis as follows at the end of para. 27: – “I am satisfied, from a review of the Transcript, that there is nothing in the Transcript which can be considered so remote as to render it outside the scope of what I consider to be information “on” the development of electricity infrastructure. In my view, the Transcript in its entirety comes within the definition of “environmental information” contained in paragraph (c) of article 3(1) of the AIE Regulations.” Counsel argues that this is a finding of fact made by the Commissioner.

23. The Commissioner then moves to consider whether Article 9(1)(d) provided ESB with grounds to refuse the transcript. At para. 34 he notes the exchange of correspondence between the investigator and ESB in which the investigator advised that the Commissioner will conduct a “fresh review” and was not bound by the first decision. Further, at para. 37 the Commissioner records that the High Court (O’Regan J.) “expressed some concern” with the approach adopted in the first decision. The Commissioner then goes on to say that “in those circumstances…” he should consider afresh the relevant legal principles. To be clear, O’Regan J. did not express any concern regarding the Commissioner’s decision that the transcript was an original literary work capable of falling within Article 9(1)(d). She found the Commissioner’s decision to be deficient as regards the definition of environmental information under Article 3(1)(c) and his balancing of the public interest factors under Article 10(3) to be irrational. She was not asked to and did not express any view on the Commissioner’s decision under Article 9(1)(d).

24. The Commissioner then set out, in some detail, a number of legal authorities concluding with the judgment of the CJEU in Infopaq: “The Court of Justice in Infopaq noted “words as such do not…constitute elements covered by the protection” and “it is only through the choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation (see para 45)” and Painer: “The Court reiterated the finding in Infopaq that “copyright is liable to apply only in relation to a subject-matter, such as a photograph, which is original in the sense that it is its author’s own intellectual creation” (see para 87).

It went on to elaborate that “an intellectual creation is an author’s own if it reflects the author’s personality” which “is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices” (paras 88 and 89). It found that a portrait photograph was subject to copyright protection because “the photographer can make free and creative choices in several ways and at various points in production” including through the choice of background, the subject’s pose, the lighting, the framing, the angle of the view and the atmosphere created.

As such, the Court was of the view that “the freedom available to the author to exercise his creative abilities will not necessarily be minor or even non-existent” although this was a matter for the national court to determine in each case (see para 93 and 99)”. In the light of these authorities, the Commissioner concluded that although “the preparation of such transcript involves significant skill, [he] cannot see how it involves any element of creativity or original thought so as to satisfy the test for originality.” He decided that the decision in Walter v.

Lane: “was made in 1900 in the context of a wholly different statutory regime i.e. the Copyright Act 1842. In fact, the House of Lords in that decision noted that “literary skill or originality are not necessary to authorship” and that “protection had been given to…publications where there was no literary skill or originality, nothing but industrious collection” (see p 541-542). The House of Lords also observed “that the Court of Appeal introduces the words ‘original composition’ as if those were the words of the statute” and that “the words ‘original composer’ are not to be found in the statute at all” (p 546).

The Earl of Halsbury made the position very clear when he stated: “I do not find the word ‘original’ in the statute, or any word which imports it, as a condition precedent, or makes originality of thought or idea necessary to the right” (p 548). Lord Davey also found that the “case raises only a question of statutory copyright in the…report and must be decided on the provisions of the Copyright Act” (p 550). He went on to note that it did not appear to him that “the fact that….no originality or literary skill was demanded for the composition of the report, [has] anything to do with the matter” going on to state that “copyright has nothing to do with the originality or literary merits of the author or composer” (p 551).

I therefore consider it fair to say that the decision in Walter v Lane was reached in circumstances where the House of Lords expressly considered a requirement of “originality” did not apply”. It had been overtaken by the requirement for originality which he found in the 2000 Act, the decision of the Supreme Court in Gormley, Directive 2001/29/EC, and the decisions in Infopaq and Painer. He concluded that the relevant test was now one fixed “…at EU level which is more onerous and which the Transcript, in my view, does not meet” (para. 44).

25. At para. 46 the Commissioner concludes that the intellectual property rights asserted by ESB and the stenography company did not arise in the circumstances. As a consequence of this, the grounds for refusal set out in Article 9(1)(d) also did not arise and it was not necessary for him to consider the question of adverse impact nor the public interest balancing test. Again, counsel for the Commissioner characterises this as a finding of fact. As the Commissioner found the transcript to be environmental information and the ground for refusal relied on by ESB not to be applicable, he directed that ESB release the transcript to Right to Know.

High Court Decision

26. On 28th October 2022, ESB appealed the Commissioner’s decision to the High Court under Article 13 of the AIE Regulations. The grounds of appeal traversed the Commissioner’s finding as regards the transcript constituting environmental information in various respects. These included that the Commissioner failed to distinguish between the processes by which electricity infrastructure development is approved and by which compensation payable to landowners in respect of interference caused by that infrastructure might be assessed and, instead, improperly conflated decisions under these distinct processes. In the grounds of appeal relating to Article 9(1)(d) ESB again traversed the Commissioner’s findings and expressly relied on the Commissioner’s first decision that the transcript was subject to copyright. ESB contended both that there was no justification for the Commissioner reaching a different

decision and that the Commissioner had failed to give reasons for the reversal of his earlier

conclusion.

27. Heslin J. delivered judgment on 17th January 2024. The judgment is extremely comprehensive and sets out in detail the background to the proceedings, the submissions made to the Commissioner, the relevant case law and the Commissioner’s decision. Heslin J. rejected the contention that ESB’s appeal was an attempt to bring a merits-based challenge to the Commissioner’s decision. As regards environmental information, the judgment considers the application of the Henney test, including the correct approach to the interpretation of regulations based on an EU directive, and addresses the core issues based on the Commissioner’s findings. These include the link between the process through which compensation is assessed and the underlying measure, i.e. the electricity line, in respect of which the decision-making process had already concluded. It looks at whether the assessment of compensation could be said to be integral to that measure.

28. With regard to the claim of copyright, the judgment does not consider the individual transcript central to this case. Indeed, the trial judge could not have done so as the transcript was not deployed before him in the course of the appeal. This fact is heavily relied upon by counsel for the Commissioner in the hearing before this court. Instead, Heslin J. considered in some detail the nature of a transcript and the choices a stenographer makes in ensuring that even a verbatim note of a hearing is comprehensible and easily followed when read. In doing so, he gave examples such as the need for the stenographer to provide punctuation, the equivalent of “stage directions”, the division of text between questions and answers, and the layout of the pages (including the use of italics to show that a speaker was quoting from a document or, indeed, to provide emphasis). Heslin J. then went on to decide, on the basis of the authorities considered by the Commissioner, that the latter had erred in law by placing “an overly-narrow emphasis on creativity, as an aspect of originality…” (para. 173 of the judgment). He concluded that the Commissioner had erred in finding that the Transcript did not satisfy the principles set out in Infopaq and Painer (para. 176 of the judgment).

29. The judgment notes that during the High Court hearing the Commissioner informed the court that he did not stand over the analysis of the copyright issue in the first decision, something which was not readily apparent from the point of opposition, or the affidavits filed on his behalf. As Heslin J. characterised it (para. 181 of his judgment) in his first decision the Commissioner had made an entirely different decision in respect of the same transcript. Heslin

J. accepted that the first decision was not binding on the Commissioner when he came to consider the second request but held that where an entirely different decision to that reached on the first occasion was made, the obligation to state reasons included an obligation to provide adequate reasons so that this change of mind could be understood. The Commissioner had failed to do this.

30. Insofar as relevant to this appeal, ESB summarised the High Court’s conclusions as follows. The Commissioner erred in law in finding that the information was environmental information; the Commissioner failed to provide adequate reasons for his conclusions on environmental information; the Commissioner misapplied the test as to whether the transcript benefited from copyright and the Commissioner did not provide any or any adequate reasons for reversing his earlier decision that the transcript did benefit from copyright. In our view this is an accurate summary.

Grounds of Appeal

31. The Commissioner’s Notice of Appeal raises five grounds of appeal with a number of sub-grounds pleaded under each ground. The first two grounds relate to the approach taken by the High Court to the environmental information issue and contend that the judge erred in not showing curial deference to the Commissioner’s decision and in reaching a conclusion on the merits (i.e. on the application of the legal test) in substitution for that of the Commissioner. The more detailed sub-grounds make clear that the first ground is directed at the question of the evidence before the Commissioner whereas the second contends that the High Court did not find any error of law in the Commissioner’s decision on environmental information. Both concern the nature and scope of an appeal on a point of law under Art. 13 of the AIE Regulations. The third and fourth grounds each plead the misapplication of a key authority, namely the decision of the Court of Appeal in Redmond v. The Commissioner for Environmental Information [2021] 3 IR 695 and that of the CJEU in Friends of the Irish Environment v. Commissioner for Environmental Information Case C-470/19. The fifth ground alleges that the judge erred in concluding that the Commissioner’s decision did not provide adequate reasons. The more detailed sub-grounds are directed exclusively at the finding that adequate reasons had not been given for the Commissioner’s change of position from his first decision.

32. All of these grounds of appeal are opposed in full by ESB.

AIE Regulations

33. The AIE Regulations give effect in Irish law to Directive 2003/4/EC on public access to environmental information (“the Directive”). As there is no complaint of inadequate transposition and as the key provisions of relevance to this appeal are taken virtually verbatim from the Directive, in dealing with the issues we will focus on the text of the AIE Regulations.

34. Before doing so we will look briefly at some of the recitals to the Directive and at Article

1 which defines its objectives. The Commissioner argues, and ESB did not demur, that the AIE Regulations must be interpreted to give full effect to the object and purpose of the Directive. However, the parties did not agree as to whether it followed from the broadly stated objectives of the Directive that the term “environmental information” must be given a broad interpretation or whether the limits of the scope of application of the Directive are to be found in the definition of that term.

35. The Commissioner relied on a number of the recitals to the Directive as illustrative of its purpose. Recital 1 states as follows: – “Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decisionmaking and, eventually, to a better environment.”

36. The second recital notes that the Directive expands the existing access granted under its precursor, namely Directive 90/313/EEC. Recital 8 confirms that any natural or legal person has a right of access to environmental information held by public authorities “without his having to state an interest”. Recital 16 establishes a presumption in favour of disclosure as follows: – “The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal. The reasons for refusal should be provided to the applicant within the time limit laid down in this Directive.”

37. This reflects the general approach to the interpretation of EU legislative instruments where any derogation from or exception to a general right created by the instrument is to be interpreted narrowly. In this case Art. 9 is such a provision and, consequently, “intellectual property rights” are to be construed narrowly. Further, the recital identifies an added feature in that even where information comes within the grounds which might justify refusal there must be an individual and fact specific analysis to determine whether it is in the public interest that access be refused. In this context it should be borne in mind that a refusal of access because something does not constitute environmental information is not an invocation of any of the grounds of refusal set out in the Directive. Rather it is a determination that something does not come within the scope of the Directive in the first place.

38. Finally, recital 21 refers to the need for a public authority to make available and disseminate information on the environment “in order to increase public awareness in environmental matters and to improve environmental protection”. This is linked to the use of computer telecommunications and electronic technology.

39. The objectives of the Directive are set out in Art 1(a) of which provides as follows: – “(a) to guarantee the right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of, and practical arrangements for, its exercise;” Subparagraph (b) reflects recital 21 in terms of the dissemination of environmental information “in order to achieve the widest possible systematic availability” and again references the use by public authorities of digital technology for this purpose.

40. The definition section of the Directive (Art. 2) is key to understanding the scope of its application. The relevant provisions, in this case the definition of environmental information, have been transposed through Art.3(1) of AIE Regulations. This provides, insofar as material, as follows: – “‘Environmental information’ means any information in written, visual, oral, electronic or any other material form on –

(a) the state of the elements of the environment…

(b) factors, such as substances, energy, noise, radiation or waste… 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…”.

41. There was agreement between the parties as regards parts of this definition. ESB agreed that the electricity line itself was a “measure” which was likely to affect the environment. It does not appear to have been disputed that the transcript in its entirety comprised information in written form. Therefore, the question was whether the transcript was information “on”, in the sense required by the Regulations (and by extension the Directive), the electricity line. Article 3(1) also contains a definition of “public authority”. Again, ESB did not dispute that it was a public authority. It is also now accepted that the property arbitrator is not a public authority for the purposes of the AIE Regulations.

42. Article 6 of the AIE Regulations sets out the form in which a request for environmental information must be made. Article 7 sets out the obligations of a public authority on receipt of such request. These include making a decision on the request (Article 7(2)(a)) and providing reasons for the refusal of a request (Article 7(4)(c)). However, the overarching obligation is to make information available subject only to the AIE Regulations themselves (Article 7(1)).

43. Article 8 sets out mandatory reasons for the refusal of a request for access to environmental information, i.e. where the public authority has no discretion but to refuse such access. Article 9 sets out discretionary reasons on which a public authority may refuse access to environmental information. This Article is structured so that grounds for refusal may only be invoked in circumstances where disclosure would adversely affect one of the interests protected (under Article 9(1)) or where the request itself is overbroad or otherwise inappropriate (Article 9(2)). Article 9(1)(d) which is relied on in this case provides: – “9(1) A public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect –

(d) intellectual property rights.”

44. Two of the incidental provisions of Article 10 are relevant. These are Article 10(3) which is relied on by the Commissioner in relation to his “fresh review” of the copyright issue and Article 10(4) regarding the general principles of interpretation. The relevant paragraphs provide as follows: – “(3) The public authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal.

(4) The grounds for refusal of a request for environmental information shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.”

45. Article 11 requires that a public authority must provide for an internal review where a request for access is refused in whole or in part. Article 12 provides for an appeal to the Commissioner where the decision of the public authority to refuse access is affirmed in whole or in part on an internal review under Article 11. Under Article 12(5)(b) the Commissioner has power to “affirm, vary or annul the decision concerned, specifying the reasons for his or her decision” and under subparagraph (c) the Commissioner may require the public authority to make the environmental information available to the appellant. Interestingly Article 12(9)(a) allows the Commissioner to refer a question of law arising in an appeal to the High Court. In circumstances where the Commissioner was proposing to completely reverse a legal decision on the application of copyright law made by him on the exact same material only 18 months earlier, it would, in our view, have been appropriate for him to have considered making such a reference.

46. Finally, Article 13(1) provides for a right of appeal to the High Court in the following terms: – “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.”

Nature and Scope of Appeal under Article 13

47. There has been much recent judicial consideration of the nature and scope of statutory appeals which, to add to the complexity of the issue, are created using a range of different statutory formulations. The text of Article 13(1) is clear. The appeal which lies to the High Court is a limited one, on a point of law only. The courts have repeatedly stressed that this is the narrowest form of appeal available.

48. Before considering the parties’ arguments on this issue it may be useful to consider the authoritative decisions of the Irish courts on the scope of an appeal on a point of law under the AIE Regulations. Some of the case law addresses a similar regime under the Freedom of Information Act where a statutory right of access to certain material is created, a specialist

decision maker with jurisdiction to hear appeals from the refusal of a public authority to provide such access is established and made subject to an appeal on a point of law to the High Court from the decision of that person. We will look at a selection of the most important cases in chronological order.

49. The principles applicable to an appeal on a point of law under the Freedom of Information Acts were set out by McKechnie J. in Deely v. Information Commissioner [2001] 3 I.R. 439 at p. 452: – “There is no doubt but that when a court is considering only a point of law, whether by way of a restricted appeal or via a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles, confined as to its remit, in the manner following: –

(a) It cannot set aside findings of primary fact unless there is no evidence to support such findings;

(b) it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision-making body could draw;

(c) it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally;

(d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision…”.

50. This analysis was endorsed, in a different statutory context, by Clarke J. (as he then was) in Fitzgibbon v. Law Society of Ireland [2014] IESC 48, [2015] 1 I.R. 516 at para. 128: – “In one sense it may be said that two types of points of law can legitimately be raised in an appeal which is limited to points of law alone. First, there may be an error of law in the determination of the first instance body. Second, it may be the case that the way in which the first instance body has reached its conclusions on the facts involves an error which itself amounts to an error in law. There may have been no evidence to support a finding or inferences may have been drawn on the facts which no reasonable decision maker could have drawn. It follows that a higher degree of deference, so far as the facts are concerned, is paid by the appellate body to the decision of the first instance body in an appeal on a point of law only, as opposed to an appeal against error. In the latter case the court is entitled to form its own view on the proper inferences to be drawn (although not on primary facts).”

51. McKechnie J. returned to this theme in considering the scope of a statutory appeal under the Extradition Act 1965 in Attorney General v. Davis [2018] IESC 27, [2018] 2 IR 357. Paraphrasing his conclusions at paragraph 54 and 55 of that judgment, he was satisfied that a statutory right of appeal on a point of law included errors of law as generally understood; errors such as would give rise to judicial review including illegality, irrationality, defective or no reasoning, procedural errors of significance etc.; errors in the exercise of discretion which are plainly wrong notwithstanding the latitude inherent in such exercise and some errors of fact. In looking at when an error of fact might be regarded as one of law he identified, on a nonexhaustive basis, the following circumstances: findings of primary fact where there was no evidence to support them; findings of primary fact which no reasonable decision-making body could make; inferences or conclusions which are unsustainable due to a lack of evidence to support them or which are irrational or which could not follow or be deducible from the primary findings of fact or which are based on incorrect interpretation of documents.

52. These various strands were drawn together by Baker J. in Minister for Communications v. Information Commissioner [2020] IESC 57, [2022] 1 I.R. 1, again in the context of an appeal on a point of law under the Freedom of Information Acts. She stated as follows at para. 117 of her judgment (omitting full case citations):- “In summary it may be said that an appeal from the decision of the Commissioner under the 2014 Act involves the following propositions:

(a) no deference is due to the Commissioner insofar as an appeal raises a matter of statutory interpretation or otherwise an issue of pure law;

(b) as with any appeal on a point of law, deference would be shown to a decision of the Commissioner in the exercise of discretion, or where what is in issue is the application of his or her expertise. These types of decision are more akin to decisions on facts;

(c) the hearing is not a de novo hearing, but an appeal on a point of law where there are many of the characteristics of judicial review…

(d) sometimes therefore the test would be akin to the one laid down in O’Keeffe v. An Bord Pleanála [1993] 1 IR 39, but not when what is in issue is a matter of law, including statutory interpretation…”. In the circumstances of that case, Baker J. observed (at para. 115) that “the present appeal concerns a question of statutory interpretation. There is therefore no room for deference to the decision-maker, and the focus is not whether there was evidence to support the decision of the Commissioner, or whether he exercised discretionary power lawfully. The question is solely whether the Commissioner was right in his approach to the legal effect of the presumption on his review of the decision to refuse disclosure…”.

53. It is clear from the second of Baker J.’s propositions, as set out above, that the limit of the scope of an appeal on a point of law may be linked to the extent to which deference should be shown to the expert decision-maker’s conclusions on facts within the area of the decisionmaker’s expertise. The concept of curial deference to the decision of a specialist decision maker was considered in some detail by Murray J. in the context of the Valuation Tribunal acting under the Valuation Act 2001 in Stanberry Investments Ltd v. Commissioner for Valuation [2020] IECA 33.

54. Murray J. started his analysis by observing that “when ‘curial deference’ first featured in the case law in this jurisdiction, the concept was intended to do no more than reflect the common-sense consideration that in relation to certain types of appeals from certain statutory

decision making bodies the Courts should not assume the function of re-determining de novo issues which have been consigned by the Oireachtas to certain subordinate expert decision makers”. He looked at a line of case law commencing with M&J Gleeson & Co. v. The Competition Authority [1999] 1 ILRM 401 in which the courts accepted what Murray J.

characterised as “a sliding scale of review by reference to the degree of specialisation of the

decision making body”. In this context courts are increasingly reluctant to substitute their own view depending on the level of expertise and specialist knowledge of the decision maker. The

decision in issue in Stanberry was a statutory appeal and Murray J. noted that the notion of deference was built into judicial review by virtue of the presumption of validity of the decision under challenge and the stringent test for irrationality.

55. Murray J. cautioned against treating curial deference as some sort of “supercharged presumption of validity” of the decisions of specialist bodies and noted the parameters to such deference as established by the case law. These included that no deference was owed on pure issues of law nor in respect of errors of fact. Curial deference does envisage that respect will be shown for the expert factual assessment of a specialist body and its decision on the balance of competing interests (per Charleton J. in EMI Records (Ireland) Ltd v. Data Protection Commissioner [2012] IEHC 264, [2013] 2 IR 669). Murray J. characterised this respect as the courts affording “very significant weight to the decision of the expert body”.

56. The Commissioner relies on the limited nature of the appeal to contend that the High Court erred in exceeding the jurisdiction available to it. This is expressed in different ways, but all derive from the admittedly narrow scope of the appeal. Firstly, the Commissioner argues that the High Court owed his decision curial deference such that his findings of fact should not have been interfered with. We have already adverted to the findings in the Commissioner’s

decision which his counsel characterises as findings of fact. These were the findings that there was nothing in the transcript so remote as to render it outside the scope of information “on” the development of electricity infrastructure and thus, environmental information, and the finding that the intellectual property right asserted in the case (i.e. copyright applying to an original literary work) did not arise in the circumstances of the case.

57. More specifically, the Commissioner argues that once the relevant legal test has been correctly identified by him, the application of that test to the circumstances of the case is a factual matter which should not be interfered with by the court save on irrationality grounds subject to an O’Keeffe test. He emphasises the inquisitorial nature of his role in which he considers and decides on conflicting submissions made by the various parties.

58. Counsel also relied on a procedural quirk which is so common as to be a regular feature of these cases. ESB provided a copy of the transcript to the Commissioner for the purposes of the Art. 12 appeal, and the Commissioner considered the transcript as part of the material before him. The transcript was not provided to the High Court (nor to this court) on the Art. 13 appeal (although we understand it can be made available if required). This is because adversarial court procedures generally require that any material on which a party wishes to rely must be provided to all the parties to the litigation as a court will not conduct a dialogue with one party about a document which another party has not seen. In practical terms that would inevitably mean the transcript would have to be provided to the requestor (in this case the first notice party). This in turn would defeat the object of the appeal from the appellant’s perspective which is to establish that the information does not have to be disclosed. Counsel contended that as the Commissioner had regard to the transcript in reaching the two factual conclusions identified by him and as the court has not considered the transcript, deference must be shown to the Commissioner’s views insofar as they are based on the transcript.

59. These arguments are unattractive in many respects not least because, if they are correct, they would significantly undermine the benefit of the right of appeal from the Commissioner’s

decision. Article 13 confers this right equally on the public authority and on the requestor and indeed on any other person affected by the Commissioner’s decision. On the Commissioner’s interpretation, the scope of an appeal on a point of law is not just narrow but contracts to a vanishing point which allows only an examination of his recitation of the law and excludes completely any examination of whether the law has been correctly applied by him. Almost unlimited deference must be shown once the law has been correctly stated, either because its application is deemed a factual issue outside the jurisdiction of the court on an appeal on a point of law or because the Commissioner has examined the information the subject of the appeal which is not usually available to the court.

60. In our view these arguments do not withstand scrutiny. To accede to them would be to afford the Commissioner’s decision the type of superpowered presumption of validity against which Murray J. cautioned in Stanberry. Furthermore, the circumstances in which curial deference of the type invoked here must be shown to the Commissioner’s decision have not been shown to exist in this case. To start with, the decision made by the Commissioner is neither one made within the area of his factual expertise (manifestly not so in the case of copyright) nor indeed a decision made on the specific factual context of this information.

61. The submissions made to the Commissioner on an appeal of this nature may include a significant factual component and may involve the submission of documentary or other evidence. However, the submissions of both parties to the appeal before the Commissioner are exhibited and, in this case, they were primarily legal in nature. The documents submitted in evidence consisted of little more than the transcript itself, the terms of the contract between ESB and GMSS and the licence granted by the latter to the former for the use of the transcript. The real issue before the Commissioner and that to which the submissions were directed concerned the interpretation and application of the regulatory provisions defining “environmental information” and allowing a refusal of access on intellectual grounds. There is of course absolutely nothing untoward about this but the mere fact the Commissioner made a

decision as to which of the competing arguments contained in the parties’ submissions was correct does not convert those arguments into evidence nor his decision into one on disputed facts.

62. Secondly, in his decision the Commissioner formally records, more than once, that he has reviewed the transcript. This seems to be a response to O’Regan J.’s judgment in the McKenna case in which she noted that the Commissioner had not suggested in his first decision that he had regard to the contents of the transcript. In our view the Commissioner has perhaps not fully appreciated the import of O’Regan J.’s judgment. The difficulties she identified in his approach did not simply derive from the absence of a reference to his having read or reviewed the transcript. Rather they derived from the absence of any connection between the conclusions he had reached and the content of the transcript. A formulaic reference to having reviewed the transcript in general does not resolve that difficulty.

63. The significance of this was highlighted when counsel was asked by the court to identify within the decision any reference to the contents of the transcript which were relevant to the Commissioner’s conclusions. The only passage identified (at the end of para. 23) was immediately dismissed by the Commissioner as irrelevant at the beginning of the following paragraph. Therefore, the Commissioner’s decision is essentially one of principle, namely that the transcript of any property arbitration hearing relating to the acquisition of property rights for the purpose of facilitating the construction of an already permitted infrastructural development, is environmental information within Article 3(1)(c). This decision did not depend on any factual determination made by the Commissioner in relation to this transcript or this development.

64. Further, the two factual findings identified by counsel as having been made by the Commissioner are not in our view findings of primary fact or even inferences drawn from primary facts as found by the Commissioner in the Deely sense. Rather, both reflect the conclusions reached by the Commissioner on the application of the relevant legal principles to the facts before him. The Commissioner’s position appears to be that if the law is correctly stated it must be assumed to have been correctly applied or, at very least, that the application of the law to the facts is a factual decision which cannot be revisited in an appeal on a point of law.

65. With respect, we do not agree. The correct application of the law to the facts is neither an exclusively legal nor an exclusively factual matter. Where, as here, the facts are largely undisputed, the question will be predominantly legal. Indeed, the correct application of the law to undisputed facts is akin to a question of statutory interpretation in that the decision maker must focus on the precise meaning and scope of the legal principles to be applied in the context of the particular facts. The position might be otherwise where there are significant factual disagreements to be resolved but that does not arise in the present case. Put simply, the Commissioner’s views on the legal status of the transcript (as information “on” the development of electrical infrastructure or as not being an original literary work) are not findings of fact to which particular deference is owed.

66. Of course, it does not follow from this that the court is at large as regards the issues which were before the Commissioner. This is not a de novo hearing and the High Court is circumscribed by the findings of fact made by the Commissioner, insofar as such findings are made, provided there is evidence to support them and by inferences drawn from such facts, provided they are rational.

67. The Commissioner’s approach to this appeal was heavily premised on the contention that the High Court impermissibly exceeded its jurisdiction on the appeal on a point of law by making findings, different to those of the Commissioner, as to the application of the law. It follows from the analysis above that we do not agree with this contention. The application of a legal test to undisputed facts is itself capable of being a question of law. Further, in deciding between competing submissions the Commissioner is not making factual findings on evidence. The fact the Commissioner reviewed the transcript does not change the nature of the findings made by him in circumstances where his conclusions were not based on any specific part or parts of the transcript. Instead, his conclusions related to the entire of the transcript because it reflected the arguments made at a hearing to assess statutory compensation due to landowners for interference to their land caused by proposed electricity infrastructure, albeit infrastructure which was fully authorised by a preceding separate decision-making process.

68. Finally, the Commissioner’s written submissions suggest that the High Court could not interfere with his decision where “the decision maker, who plainly conducted an exercise of weighing up various factors, got the balance “wrong””. We are uncertain to which part of the High Court judgment or indeed the Commissioner’s decision this refers. Neither the question of whether the transcript constitutes environmental information nor whether it is an original literary work involve a balancing exercise. The balancing exercise under Article 10(3) which would follow a positive conclusion that there would be an adverse impact on intellectual property rights was not carried out by the Commissioner because of his finding that the transcript was not covered by copyright. In circumstances where the Commissioner’s decision did not entail any balancing exercise it is unnecessary for us to comment on the extent to which the outcome of such exercise would attract curial deference.

Environmental Information

69. The principal issue before the Commissioner was whether the transcript was environmental information within the meaning of Article 3(1)(c) of the AIE Regulations. The existence of many of the elements of Article 3(1)(c) is accepted by ESB. Most notably ESB accepted that the electricity line is a “measure” affecting or likely to affect environmental elements or factors referred to in Article 3(1)(a) or/and (b). It was not disputed that the transcript is information in written form and that it is held by ESB which is a public authority. Therefore, the key question was whether the transcript was information “on” the electricity line.

70. Both parties agreed that the test whether something is information on an environmental measure is correctly set out in the judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v. The Information Commissioner and Henney [2017] EWCA Civ 844 (“Henney”). Before looking in detail at Henney, it is useful to note the interpretive approach to the Directive which has been adopted by the CJEU in two cases mentioned in both Henney and by Hogan J. in Minch v. Commissioner for Environmental Information [2017] IECA 223.

71. In Glawischnig v. Bundesminister für soziale Sicherheit und Generationen Case C- 316/01 the CJEU confirmed that the term environmental information in the precursor to the Directive was to be given a broad meaning. However, this did not mean that it was intended “to give a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with one of the environmental factors mentioned”. This is significant because it confirms that the scope of the Directive does not extend to include information which has only a minimal connection to the environment. Consequentially, and in our view importantly, identifying such a minimal connection will not suffice to bring information within its terms.

72. A similar approach was adopted specifically in relation to the 2004 Directive in Fish Legal v. Information Commissioner Case C-279/12. Again, the CJEU confirmed that the Directive should be interpreted broadly to give effect to the obligation undertaken by the EU as a party to the Aarhus Convention to ensure a general principle of access to environmental information held by public authorities. However, the CJEU again acknowledged the limits to that right at para. 39 of its judgment: – “… [It] should also be noted that the right of access guaranteed by Directive 2003/4 applies only to the extent that the information requested satisfies the requirements for public access laid down by that directive, which means inter alia that the information must be "environmental information" within the meaning of Article 2(1) of the directive, a matter which is for the referring tribunal to determine in the main proceeding…”.

73. In Minch, Hogan J. summarised this case law as follows (at para. 32): – “While the CJEU’s subsequent case-law has stressed these objectives are to be interpreted broadly, that Court has also acknowledged that there are limits to the extent of a Member State's obligations.”

74. Henney itself concerned a request for access to a “project assessment review” of the communications and data component of a government “Smart Meter Programme” in relation to the use of electrical energy by consumers. The Court of Appeal considered the relevant UK Regulation based on Art. 2(1) of the Directive which is expressed in similar terms to Art. 3(1)(c) of the AIE Regulations. The appeal concerned the correctness of the view taken by an Upper Tribunal judge that in identifying the relevant “measure”, it was permissible to look beyond the precise issue with which the disputed information was concerned and to have regard to the “bigger picture”. Although the appeal was unsuccessful, the Court of Appeal (Beatson L.J.) did not find the “bigger picture” phrase helpful because it tended to equate information being “on” a measure with the information relating to or having a connection to one of the environmental factors, however minimal. This approach was contrary to Glawischnig because “it would lead to a general and unlimited right of access to all such information”.

75. At a later point, the judgment looks at the decision of CJEU in European Commission v. Stichting Greenpeace Nederland Case C-673/13P in which the General Court was held to have erred in giving such a broad interpretation to the phrase “information on emissions” in the Directive that any link between the requested information and emissions into the environment was regarded as sufficient to bring the information within the scope of the Directive. Beatson L.J. regarded this judgment as showing that a purposive approach to the Directive may be used to interpret a provision more narrowly than the very broad literal meaning might suggest.

76. The court in Henney said the correct approach was to start by identifying the measure that the requested information is contended to be “on”. The measure is not in dispute here and is the approved electricity line to be constructed by ESB. The crucial question is whether the transcript can be said to be “on” the electricity line. In Henney, Beatson L.J. accepted that it was permissible to look beyond the precise issue with which the information is concerned (here compensation for interference with the landowner’s property rights) to identify the measure, but not to look at issues with which the information is not concerned or with which it is merely connected (para. 39). He did not go so far as to require that the information be “directly or immediately concerned” with the measure so as to exclude consideration of the broader context.

He stated (at para. 43 of the judgment): –

“It follows that identifying the measure that the disputed information ‘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 [Regulations] 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).”

77. The court then considered the role of a purposive interpretation noting that, somewhat counterintuitively, a literal reading of the regulation “would mean that any information about a relevant ‘measure’ would be environmental information, even if the information itself could not be characterised as having, even potentially, an environmental impact as defined”. Beatson L.J. acknowledged that even though the information does not have to be intrinsically environmental, it did not follow simply because a project has some environmental impact that all information concerned with the project will necessarily be environmental information. He noted the argument made by counsel for Mr. Henney that information might not qualify as environmental information “because it is likely to be too remote from or incidental to the wider project to be “on” it for the purposes [of the regulation]”. The difficulty lies in identifying where the line is to be drawn. He expanded on this issue at paragraphs 47 and 48 of the judgment: – “47. In my judgment, the way the line will be drawn is by reference to the general principle that the regulations, the Directive and the Aarhus Convention are to be construed purposively. Determining on which side of the line information falls will be fact and context-specific. But it is possible to provide some general guidance as to the circumstances in which information relating to a project will not be information ‘on’ the project for the purposes of [Art. 3(1)(c)] because it is not consistent with or does not advance the purpose of those instruments.

48. My starting point is the recitals to the Aarhus Convention and the Directive in particular those set out… above. They will refer to the requirement that citizens have access to information to enable them to participate in environmental decision-making more effectively, and the contribution of access to a greater awareness of environmental matters, and eventually, to a better environment. They give an indication of how the very broad language of the text of the provisions may have to be assessed and provide a framework for determining the question of whether in a particular case information can properly be described as ‘on’ a given measure.”

78. The question whether the communication and data component was sufficiently integral to the Smart Meter Programme involved the application of the equivalent of Art. 3(1)(c) to the relevant facts. The Court of Appeal upheld the Upper Tribunal’s decision that the information was “on” the Smart Meter Programme because (at para. 53): – “… it could nonetheless be described as also being about the wider Smart Meter Programme, because the communications and data component is integral to the programme as a whole. It would be unnecessarily narrow and artificial to draw a distinction between a Project Assessment Review on the communications and data component and Project Assessment Review on the Smart Meter Programme. The communications and data component is not an incidental aspect of the Smart Meter Programme: the former is critical to the latter's success and thus fundamental to it. The Upper Tribunal was entitled to find that there would be no Smart Meter Programme without a communications and data component of some sort, and there is no basis for overturning this conclusion.”

79. In applying Henney, the Commissioner set out much of the text quoted above before concluding that “information that is integral to the relevant measure or activity is information ‘on’ it… while information that is too remote from the relevant measure or activity does not qualify as environmental information…”. He characterised this as a “sliding scale” with information that is integral to the measure at one end and information that is too remote at the other. In circumstances where the CJEU has indicated that there is a limit to the application of the Directive and that information which has only a minimal connection to the environmental factors listed does not fall within its scope, in deciding whether the information is sufficiently connected to the measure as one affecting or likely to affect the environment, “remote” is a useful counterpoint to “integral”.

80. In his decision the Commissioner sets out his understanding of what the transcript is and contains and addresses whether there is a sufficient connection between the information contained in the transcript and the measure (i.e. the electricity line) for it to qualify as environmental information. Emphasis is placed by him on the statutory right to compensation under s.53(5) of the 1927 Act, as amended. In contrast, no reference is made to the environmental decision-making process which approved the construction and placement of the electricity line before ESB sought to exercise its right to wayleave. If anything, this important step appears to be entirely disregarded by the Commissioner in para. 20 of his decision where he states that “once the location of the line placement is decided [by ESB], ESB makes preparation for the construction of the line…”, service of the wayleave notice being part of those preparations. It is perhaps significant that ESB is not the final decision maker on the location of the line placement. Any decision made by ESB in this regard was subject to approval by An Bord Pleanála in a process in which the public had a right to participate. The Commissioner then concludes at para. 22 “if the entitlement to proceed with line placement is subject to the entitlement to compensation to be independently assessed in default of agreement, it appears to me that both compensation and arbitration of the type referred to in the Transcript are integral parts or key elements of the line placement project”. He rejects an argument made by ESB that the information in the transcript is too remote because the decision on the need for and location of the infrastructure was “entirely completed” by the time of the arbitration hearing on the basis that the line had yet to be constructed. The decision does not provide any further detail as to what the Commissioner regards as the link between the arbitration hearing and decisions regarding the placement of the line.

81. The Commissioner ultimately concludes that the transcript is environmental information because access to information about the arbitration process “might contribute to the public’s ability to participate in debate concerning future projects”; that information does not need to enable participation in the decision-making process to which it directly relates in order to be environmental information; that compensation payments are part of the cost of developing electrical infrastructure and that this is likely to be of public concern and to impact on the level of public support for such projects as a result of which having information about the compensation and arbitration process “enables the public to better understand the system for the development of electricity infrastructure and in turn to better participate in decisions relating to such development”. All of these conclusions relate to the transcript as a whole and are not dependent on the contents of any part of it. This is particularly evident from para. 27 of the Commissioner’s decision. This paragraph is critical of ESB for failing to identify those parts of the transcript which ESB accepted to be environmental information (see comments at paras. 18(1) and 20 above) but, in any event, concludes that “there is nothing in the Transcript which can be considered so remote as to render it outside the scope of what I consider to be information “on” the development of electricity infrastructure”.

82. In our view Heslin J. was correct to regard the transcript as only indirectly relevant to the compensation payable under s. 53(5) of the 1927 Act. The transcript records the arguments made at the hearing before the property arbitrator but not the arbitrator’s decision nor the extent to which any of those arguments were accepted by him. Thus, the cost of this element of the project is not evident from the transcript. Heslin J. was also correct in noting that the arbitration hearing had no possibility of affecting the measure since the earlier environmental decisionmaking process which determined the placement of the electricity line was complete and the arbitrator had no jurisdiction to decide on or alter the route of the line. In that context Heslin

J. was unable to understand why the Commissioner concluded that access to the transcript would contribute to greater public participation in environmental decision-making.

83. At paras. 104 and 190 Heslin J. found that the Commissioner had failed to provide adequate reasons for the conclusions which underlie his decision that the transcript as a whole is environmental information. We address below whether the Commissioner has appealed this element of the High Court judgment and, if not, what consequences of that failure might be. At this point it is sufficient to observe that we cannot identify any error in the High Court’s reasoning. We have rejected the Commissioner’s argument that the court should not have reviewed the Commissioner’s application of the law, which all parties agreed was the test set out in Henney. Thereafter, the legal basis for the Commissioner’s appeal on this issue appears to rest on the contention that the High Court misunderstood and/or misapplied the decision in Redmond and in FIE.

84. The decision as to whether the transcript is environmental information is fact and context specific. The context in which the transcript came into being is that of a compensation process which can (but does not necessarily) involve an arbitration hearing in which members of the public have no right to participate. The compensation process will only commence after the environmental decision-making process, which determines the need for and location of infrastructure, has concluded. The public have a right to participate fully in the environmental

decision-making process. The arbitrator has no jurisdiction to revisit or alter any decision made in the earlier process. The compensation awarded to the affected landowners is not apparent from the transcript. In all of these circumstances it is very difficult to understand how, on a sliding scale between “integral” and “too remote”, the Commissioner could have concluded that the entirety of the transcript constituted environmental information. The arguments made at a property arbitration hearing, if such a hearing takes place, are not integral to the previously approved electrical infrastructure. Whilst compensation must be paid for the interference with the landowners’ property rights, nothing said at the arbitration hearing can affect or undermine the existing approval or have any bearing on how the development is carried out. The value of the landowners’ land (or more specifically the reduction in its value as a result of the wayleave) is not an intrinsically environmental issue and has no impact on whether or to what extent the underlying measure, the electricity line, is likely to affect the environment.

85. It might be noted that in upholding the High Court’s decision that the Commissioner erred in law in concluding that the entirety of the transcript constitutes environmental information, we do not preclude the possibility that there may be some environmental information contained within the transcript. The review decision made by ESB contemplates this possibility. The Commissioner did not argue the appeal before this court on the basis that some of the information contained in the transcript might constitute environmental information, but rather, stood over the proposition that the entirety of the transcript fell within the scope of Article 3(1)(c). As the Commissioner was in possession of the entire transcript it was open to him to identify any specific portions of it which constituted environmental information.

Redmond v. Commissioner for Environmental Information

86. As noted above, once the Commissioner’s argument about the scope of the appeal was rejected, his remaining legal arguments on “environmental information” concerned the High Court’s understanding and application of two judgments. The Commissioner contends that the High Court misunderstood and consequently erred in its application of the judgment of this court (Collins J.) in Redmond v. Commissioner for Environmental Information (above). The Commissioner relies on that judgment insofar as it held that a measure or activity was “likely to affect” the environment within the meaning of Article 3(1)(c) if there was a real and substantial possibility that it would affect the environment directly or indirectly. He contends that the High Court erred in applying that test (at para. 98 of the judgment) to the information contained in the transcript since the real and substantial possibility of an effect on the environment stipulation refers to the measure itself and not to the information on the measure.

87. Redmond concerned a request for access to information regarding the sale of forestry land by Coillte Teoranta. In considering whether the information was environmental information, the Commissioner, and consequently the court, focused on whether the sale of land was a “measure affecting or likely to affect” the environment within the meaning of Article 3(1)(c). In that context Collins J. held that although a sale of land will not of itself result in any alteration to the land, it can nonetheless constitute a “measure” where there is evidence the purchaser intends to develop the land, even where such development would be subject to obtaining development consent. The test for whether the measure is likely to affect the environment is whether there is a real and substantial possibility it will affect the environment, whether directly or indirectly. A possibility must be more than remote or theoretical but need not amount to a probability that environmental impact will occur.

88. The Commissioner’s point, which is correct as far as it goes, is that the test set out by Collins J. in Redmond applies to the measure to determine if it comes within the scope of subparagraph (c) and not to the information on the measure. The measure in this case is the electricity line which ESB accepts is likely to affect the environment. Consequently, the Commissioner argues that the Redmond test was not relevant and that the High Court erred at para. 98 of the judgment by conflating that test with the test to be applied to the determination of whether the information is “on” a measure (i.e. Henney).

89. In para. 48 of his judgment, Heslin J. correctly observes that the transcript is not intrinsically environmental information and asks whether there is a “real and substantial” possibility that the information in the transcript will affect the environment. This language is obviously drawn from Redmond. He answers that question in the negative saying the possibility of the information in the transcript affecting the environment is so remote as to be negligible, expressly invoking and quoting from para. 46 of Henney in this regard.

90. We do not agree that the High Court has misapplied Redmond either at all or in a manner that is fatal to the analysis contained in the judgment. We accept that the information in the transcript, being material in written form, cannot of itself affect the environment in the same way that a measure, being an actual activity or something designed to be implemented or acted upon can. However, the test in Henney requires an assessment of where the information falls in respect of the measure on a sliding scale ranging from being integral to it to being too remote. The relationship between the information and any real and substantial possibility of an impact on the environment is relevant in that the more closely the information is aligned to the potential environmental impact of the measure, the greater the likelihood it is environmental information. The more minimal the connection between the information and the potential effect the measure might have on the environment, the less likely it is to be environmental information. In our view, criticism of the way the trial judge has expressed this cannot withstand scrutiny. When para. 98 of his judgment is read as a whole and when that paragraph is read in the context of the judgment as a whole, it is clear that Heslin J. has understood and applied the test in Henney and has not inappropriately qualified that test by reference to Redmond. This ground of appeal must fail.

FIE v. Commissioner for Environmental Information

91. The second specific error alleged to have been made relates to the treatment by the trial judge of the judgment of the CJEU in Friends of The Irish Environment v. Commissioner for Environmental Information (“FIE”). The Commissioner contends that the High Court incorrectly conflated the concept of a “public authority” (the subject of the FIE judgment) and that of environmental information.

92. The FIE judgment concerned a request for access to information, being the pleadings, submissions and other documents held by the Courts Service relating to concluded High Court proceedings which in turn concerned the grant of planning consent for a wind farm. The Commissioner held that the Courts Service held the material in question in the exercise of the judicial power on behalf of the judicial authority and that when exercising such powers the Courts Service was not a public authority. Article 2(2) of the Directive defines “public authority” in a way which arguably included the Courts Service (a legal person performing public administrative functions under national law) but allows member states to exclude from that definition bodies or institutions “when acting in a judicial capacity”. Article 3(2) of the AIE Regulations excludes bodies “acting in a judicial capacity” from the definition of public authority.

93. In answering the question referred, the CJEU started, not from the premise of asking whether the derogation applied, but rather asking whether the body in question, namely the Courts Service, came within the scope of the definition of a public authority. It noted that the option available to a member state to derogate by excluding bodies acting in a judicial capacity from the notion of “public authority” only applied to bodies which met the definition of public authority in the first place. The Aarhus Convention and the Directive were intended to cover only administrative authorities and not judicial authorities. As the Courts are not part of the government or other public administration, they are not “public authorities” and a body under the control of the courts such as the Courts Service is equally excluded from that definition. Consequently, the Directive did not require access to be provided to “documents adduced in court proceedings on environmental matters, since the EU legislature did not intend to promote public information in judicial matters and public involvement in decision-making in that area” (para. 37 of the judgment).

94. The Commissioner’s decision records an argument made by ESB to the effect, firstly, that the property arbitrator was outside the scope of the AIE Regulations as a person acting in a judicial capacity and secondly, by extension that the transcript was “generated in the context of a judicial process and is akin to the type of document referenced by the CJEU” in the FIE case. The Commissioner dealt with this argument by stating that he was “unconvinced that the status of the property arbitrator, and whether he acts in a judicial capacity so as to be excluded from the definition of “public authority” under the Regulations, has a bearing on whether the transcript constitutes “environmental information” as no argument has been made that the ESB holds the transcript on the property arbitrator’s behalf.” He noted that the ESB itself was a public authority within the meaning of the AIE Regulations.

95. At para. 126 of the High Court judgment Heslin J. observes, correctly in our view, that the Commissioner’s decision does not engage directly with ESB’s argument which did not hinge around the concept of public authority. Although not expressly stated in the Commissioner’s decision, it appears to have been accepted in the High Court that the property arbitrator is not a public authority because he is acting in a quasi-judicial capacity. Heslin J. looks at FIE, in particular paras. 36 and 37 of that judgment, and states as follows (para. 129):

–

“The foregoing statement of principle would appear to apply equally to the quasi-judicial process which the legislature have tasked the Arbitrator to determine as expert. Focusing on the purpose of the AEI Directive, as articulated in Friends, the logic of the principle highlighted above would appear to apply to a consideration of whether it could ever have been intended that information about this quasi-judicial compensation process (concerning arguments, not any determination, or the basis for same, about compensation payable to a particular landowner) could come within the definition of “environmental information””.

96. The Commissioner notes that FIE is not authority for the proposition that information created by a body acting in a judicial capacity is not and can never be environmental information. He submits that the High Court took the CJEU’s analysis as to whether the Directive was intended to promote public access to and participation in the judicial process and applied it to a consideration of whether the Directive applied to information held by a public authority that was created in a judicial process. The Commissioner contends that the nature of the specific process for which the transcript was created is not a critical factor nor is the fact that the processing question does not allow for public participation.

97. We agreed that the questions of whether information is environmental information and whether a body is a public authority are separate questions. We acknowledge that information held by a body which is excluded from the definition of “public authority” might nonetheless be environmental information, albeit not disclosable under the AIE Regulations in the hands of that body. However, it does not follow that the nature of the hearing before the property arbitrator which is reflected in the transcript is irrelevant to the question of whether the transcript is environmental information. The point made by ESB was that a compensation process in which the arbitrator is not engaged in any environmental decision-making and in which the public do not have a right to participate, has a bearing on whether the transcript of that hearing is, in its entirety, environmental information. The ESB correctly observes that the case law indicates that a purposive approach must be taken to the interpretation of the Directive and the AIE Regulations which requires an understanding of the aims of the Aarhus Convention and the Directive itself. In circumstances where these aims do not include the publication of information on judicial matters or public involvement in that area, the question naturally arises as to whether information about such a quasi-judicial process falls within the scope of the definition of environmental information.

98. The relevance of ESB’s argument is heightened in circumstances where the Commissioner’s reasons for concluding that the transcript is environmental information do not rely on any specific information contained in the transcript relating to the state of the elements of the environment or factors likely to affect the environment (albeit that it is the electricity line and not the information which would have such effect). Instead, his reasons for the disclosure of the entirety of the transcript relate to how information about the arbitration procedure might contribute to the public’s ability to participate in further environmental

decision-making or in debate about further projects. In our view, the fact that the arbitration process is a non-environmental, quasi-judicial process in which the public do not have a right to participate is relevant to the application of the Henney test in determining where on the sliding scale between integral to and too remote from the underlying measure the transcript lies. Consequently, in all of the circumstances we do not agree that the High Court erred in its consideration or application of FIE.

The Commissioner’s Reasons

99. The High Court found that the Commissioner’s decision did not contain adequate reasons in two respects. As regards his finding that the transcript in its entirety constituted environmental information, the Commissioner failed to explain his conclusion that access to information about the arbitration procedure might contribute to the public’s ability to participate in the debate about future projects (judgment at paras. 132 and 190). Separately, insofar as the Commissioner’s decision on the application of Article 9(1)(d) held that the transcript did not benefit from copyright was contrary to the opposite conclusion reached on the same point in the Commissioner’s first decision, he failed to give reasons for his change of position and the reversal of his earlier decision (paras. 181 to 188 and 192).

100. The Commissioner’s fifth ground of appeal (E) expressly references para. 181 of the judgment and contends that the High Court erred in its conclusions on reasons in light of the Supreme Court decision in Connelly v. An Bord Pleanála [2021] 2 IR 752, [2018] IESC 31. It is contended that the Commissioner’s reasons were clear from the decision under appeal and from correspondence between the Commissioner and ESB prior to the decision being issued. The more detailed section dealing with this ground of appeal is headed “E: Reasons for Commissioner’s change in position”. Both paragraphs in that section address the extent to which the Commissioner’s correspondence should have been but was not considered by the High Court before concluding that the reasons were inadequate. In response, ESB indicates that the High Court judgment is not premised on the assumption that reasons can only be found in the decision itself; that it explained why the correspondence could not be relied on in the circumstances as a source of reasons - namely because the final decision was not consistent with the correspondence relied on, because the investigator (from whom the correspondence emanated) expressly stated that her views were not binding on the Commissioner and because the decision did not appear to incorporate the prior correspondence.

101. In her submissions to this court, counsel for ESB noted that the Commissioner’s appeal on reasons related exclusively to the change of position issue and that no appeal was taken from the separate finding of an inadequacy of reasons for holding that the transcript constituted environmental information. The point is also raised, somewhat obliquely, in ESB’s written legal submissions where it is noted that the appeal “does not impugn all of the findings of the High Court” and consequently that “it is difficult to see how the appeal can succeed”.

102. In response, counsel for the Commissioner pointed to the fact that a box was checked in the Notice of Appeal to indicate that the appeal related to the entirety of the High Court judgment and relied on the fact that the complaint was not raised in ESB’s respondent’s notice. We can see no reason in principle why a respondent should be expected to raise the failure of an appellant to advance a specific ground of appeal or to appeal a specific aspect of the High Court judgment. It is a matter for an appellant to define the scope of the appeal they wish to bring to this court and to set out all of the grounds upon which they wish to rely in advancing their appeal. If a ground is not raised, the respondent is entitled to assume that the appellant is not relying on it. Indicating that the appeal relates to the entirety of the High Court decision does not allow an appellant to advance grounds which are not set out in the Notice of Appeal.

103. Having looked very carefully at ground of appeal (E), we are of the view that it does not appeal the High Court’s conclusions regarding the absence of adequate reasons for the Commissioner’s conclusion that the transcript constitutes environmental information. The first sentence in that ground expressly identifies the conclusion to which it is referring as that contained in para. 188 of the High Court judgment. Paragraph 188 summarises the High Court’s conclusions as to the inadequacy of reasons for the Commissioner’s change of position. Whilst that paragraph contains just a single sentence stating that the High Court was not satisfied that adequate reasons were provided in the Commissioner’s decision “per the principles outlined by the Supreme Court in Connelly”, it is included in a section of the judgment entitled reasons for “change of mind”. The proceeding and only other paragraph in that section is entirely devoted to the Commissioner’s change of mind as between the first and second decisions and cites from Connelly in this regard. It is impossible to read para.188 as relating in any way to the judge’s conclusion – over 50 paragraphs earlier – that the Commissioner’s decision on environmental information amounts to “a finding, rather than any articulation of the reasons for that finding”.

104. The remaining sentences in ground E address the Commissioner’s correspondence which is only relevant to the change of mind issue. The conclusion that the appeal on reasons is limited to the change of mind issue is reinforced by the subheading given to ground E and the greater detail in the content of grounds 20 and 21 which focus entirely on the Commissioner’s correspondence. All of this means that one of the key findings made by the High Court judge which would, of itself, have resulted in the appeal against the Commissioner’s decision being allowed, remains intact as it is not the subject of any appeal. We do not propose to consider further the High Court’s finding that adequate reasons were not given by the Commissioner for his conclusion that the transcript is environmental information as that issue is not within the scope of this appeal.

105. In order to understand the appeal regarding the Commissioner’s change of position, it is necessary to look at the correspondence sent by the investigator to ESB. It will be recalled that in the first decision the Commissioner held that the transcript was an original literary work covered by copyright and that disclosure of it would adversely affect the intellectual property rights of GMSS. In the second decision the Commissioner held that the same transcript was not covered by copyright and so it was unnecessary to consider whether GMSS’s intellectual property rights would be adversely affected. These are two conflicting decisions on the application of the same legislation to the same material. The second decision does not expressly acknowledge that the Commissioner is reversing his earlier decision and consequently does not expressly explain why he is doing so. The Commissioner argues that the explanation is to be found in the correspondence exchanged during the appeal process.

106. Right to Know’s appeal to the Commissioner disputed the contention that the transcript was an “original work” as understood under EU law and, consequently argued that it could not benefit from copyright. Unsurprisingly, ESB in its response pointed to the Commissioner’s first decision and the finding that the transcript was an original literary work for the purposes of s. 17(2) of the 2000 Act. The response continued “ESB presumes that the Commissioner will adopt a consistent position and will continue to accept that the Transcript is an original literary work…”.

107. ESB received a reply from the investigator appointed by the Commissioner to handle the appeal on 3rd March 2022. This reply referred to the ESB’s submission and noted in relation to the comment set out above, that ESB “should be aware from previous engagement with this Office that the Commissioner conducts a fresh review of all cases before him and is not bound to follow previous decisions.” In the immediately following paragraph which commences “while my views are not binding on the Commissioner”, the investigator sets out why she considered that the test under EU law might be more restrictive than that which had been applied in the Commissioner’s first decision. The substance of these issues is considered in the next section of this judgment. What is relevant at this point is that the investigator sets out an argument which appears to represent her views, which she acknowledges were not binding on the Commissioner, as to why the Commissioner might not follow his previous decision. The ESB was then invited to make further submissions to address those views.

108. It did so by way of letter dated 28th March 2022. ESB reiterated that the issue as to whether the transcript was an original literary work for the purposes of s. 17(2) had already been determined by the Commissioner. ESB expressed surprise at the Commissioner’s intention to conduct a “fresh review”. It acknowledged that previous decisions of the Commissioner did not have the same precedential value as decisions of the superior courts but noted “that the Commissioner looks to adopt a consistent position in respect of the application of specific legal principles”. It pointed out that in this case the Commissioner had already, in his earlier decision, “considered the relevant legal principles and how they should apply to the facts in this appeal”.

109. The Commissioner’s decision considers whether Article 9(1)(d) of the AIE Regulations provides grounds for refusal of access to the transcript by considering initially whether Article 9(1)(d) applies in the circumstances of the case. This issue is said to depend on two conditions being fulfilled, namely that intellectual property rights must arise in respect of the transcript and must be adversely impacted by the release of the transcript. It notes that ESB relied on the

decision of the Commissioner’s predecessor in the first case and sets out the exchange of correspondence between the investigator and the ESB indicating that a fresh review would be conducted. The only engagement with this exchange is at para. 37 of the Commissioner’s

decision. Again, he notes the submissions made by both ESB and GMSS based on the first

decision which concluded that the transcript was protected by copyright and notes the contrary submissions of the appellant. The Commissioner considered that a purposive interpretation of the Regulations and in particular Article 10(3) which requires public authorities to consider each request on an individual basis required him to consider each appeal afresh and on an individual basis. He went on to state “I am also mindful that ESB considers that I should adopt the approach set out in my predecessor’s decision in its entirety and has contended that it was a “surprising assertion” that I would not. The High Court expressed some concern with that approach in its judgment in the ESB case, which was delivered on foot of an appeal from ESB challenging that very decision. In those circumstances I consider that the appropriate course of action is to consider the application of the relevant legal principles afresh. I am satisfied that my Investigator has made my intention to do so clear to the parties and provided them with an opportunity to make submissions in light of that position, such that the entitlement of all parties to fair procedures has not been impeded by this approach.” We have already noted that O’Regan J.’s decision in the Lar McKenna case did not deal at all with whether the transcript was an original literary work subject to copyright and certainly did not express any concern with the approach adopted on that issue in the Commissioner’s first decision. Thereafter the Commissioner’s decision proceeds to consider that issue afresh and makes no further reference to his own first decision.

110. The Supreme Court decision in Connelly deals comprehensively with the principles applicable to the adequacy of reasons in certain public decision-making processes. It is relied on by the Commissioner because Clarke C.J. addressed issues concerning the identification of materials external to a decision which in certain circumstances might provide reasons or additional reasons for the decision. He referred to his own earlier decision in Christian v. Dublin City Council [2012] IEHC 163, [2012] 2 IR 506 in which he held that the reasons for the adoption or rejection of a particular provision of a development plan might be found in documents referred to in the development plan or documents prepared in the context of the process for the adoption of that plan. This was subject to a requirement of “reasonable certainty” such that any external document in which it is said that the reasons are to be found must be either expressly referred to in the development plan or, by necessary implication, have been clearly adopted by those voting in favour of the development plan as part of their reasoning process. In a subsequent judgment of Clarke J. (as he then was) EMI Records v. Data Protection Commissioner [2013] IESC 34, [2013] 2 IR 699 where it is suggested that reasons can be found in materials outside the decision itself together with materials expressly referred to in the decision, it is pointed out that care needs to be taken to ensure that any person affected by the decision in question can readily determine what the reasons are notwithstanding the fact that they do not appear in the decision itself. In Connelly the Supreme Court accepted that the reasons for the decision could, in part, be ascertained from an inspector’s report submitted to the Board which raised certain concerns as a result of which the Board required the submission of further information, the documents submitted in response to that request, the final decision of the Board and conditions attached to that decision. Of significance to the Supreme Court’s decision was the fact that all of that documentation was available to the public on foot of a regulatory requirement allowing for public inspection of planning files.

111. In light of Connelly, the Commissioner contends that his reasons on the copyright issue are to be found both in the decision and in the correspondence from his investigator which indicated to the ESB that the Commissioner would be conducting a fresh review and outlining the investigator’s view as to why the first decision on the copyright issue might not be correct. With respect, the inadequacy in the Commissioner’s reasoning found by the High Court was the absence of any explanation for the Commissioner’s change of mind in reaching the opposite

conclusion on the application of the same legal principles to the same document to his predecessor some 18 months earlier. That absence is not addressed by pointing to correspondence which merely flags the entitlement to make a different decision. The fact that something can be done by the Commissioner is not an explanation for why he is doing it.

112. Further, the fact that reasons are required for such a reversal does not mean that the Commissioner was bound by the earlier decision or could not conduct a fresh review on foot of the appeal before him. There may well be cases in which a fresh request is made by a different party on new grounds in respect of a document to which the Commissioner has previously refused access. This was not such a case. Instead, the Commissioner was reconsidering what were effectively the same arguments in respect of the same material and reaching a radically different conclusion. That, of itself, requires an explanation going beyond that provided in the Commissioner’s decision.

113. A similar issue arose before O’Neill J. in Grealish v. An Bord Pleanála [2007] 2 IR 536, [2006] IEHC 310. A temporary planning permission had been granted by the Board for the retention of a large advertising structure in an urban area in 1990 and 1997. Permission was refused for the further retention of the structure in 2003. In 1990 and 1997 the Board had decided that the structure would not seriously injure the visual amenities of the area whereas in 2003 it concluded that the same structure would seriously injure the visual amenities of the area. O’Neill J. accepted that the Board was entitled to reach a different decision in 2003 to that which it had previously reached. However, it could not treat the 2003 decision on a standalone basis wholly disconnected from its earlier decisions. Importantly he stated: – “Such an approach in general would leave appellants with an unavoidable sense that the respondent was entitled to and did conduct appeals in an arbitrary fashion and an unexplained inconsistency between one decision and the other would leave an applicant under the impression that his appeal had not been determined in a just manner and such apparent arbitrariness and inconsistency would tend to bring this important statutory tribunal into public disrepute.”

114. Consequently, he held that where the Board was proposing to reach a different conclusion on a later application in respect of the same development “the reasons and considerations upon which that change of stance has been adopted must be made clear”. Notwithstanding that the Board had given reasons as to why it concluded that the advertising structure would seriously injure the visual amenities of the area, it had not given reasons as to why it had changed its view from the earlier decisions in which the opposite conclusion had been reached.

115. In that context reference to the investigator’s correspondence does not assist the Commissioner. That correspondence indicates (and ESB certainly understood) that the Commissioner was minded to conduct a fresh review and might reach a different conclusion. It does not explain why the Commissioner reached a different conclusion. The views of the investigator cannot be attributed to the Commissioner. The role of an investigator is materially different to that of a planning inspector who is statutorily required to furnish a report to the

decision maker making a recommendation as to the decision to be made.

116. The Commissioner’s decision refers to the investigator’s correspondence only in the context of demonstrating that the parties were afforded fair procedures. The decision does not invoke the investigator’s views on the substance of the issue which, as the investigator herself noted, were not binding on the Commissioner. Thus, contrary to the Commissioner’s submission, the issue is not whether the High Court incorrectly refused to have regard to the earlier correspondence but rather whether that correspondence of itself provides the reasons for the Commissioner’s change of position which are absent from the Commissioner’s decision. On any reading of the correspondence the answer must be “No”.

117. It is perhaps unsurprising that the Commissioner’s decision does not explain his reasons for departing from the conclusion arrived at by his predecessor in the Commissioner’s first

decision. The decision does not acknowledge such a departure, nor was it acknowledged in the points of opposition or affidavits filed before the High Court that the Commissioner had in fact changed position from that reached in the first decision. The first acknowledgement that the Commissioner considered the first decision to be incorrect was during oral submissions before the High Court. Given the very late acknowledgement of this change of position, it is difficult to see how the Commissioner can contend that the earlier material, including the earlier correspondence, can be regarded as providing reasons for it.

118. We do not accept that the High Court judge erred in his understanding or application of the decision in Connelly. Correspondence indicating that a matter will be considered afresh is not a reason for reaching the opposite conclusion to that reached in the previous case. In those circumstances it is unnecessary to go further and consider whether the exchange of correspondence between the Commissioner and ESB could, in circumstances where correspondence is not made publicly available, constitute a reason for the Commissioner’s

decision.

Article 9(1)(d) – Copyright

119. The appeal on the copyright issue was strangely circumscribed. There was no dispute about the trial judge’s analysis of the law on this point. In particular, the findings of the trial judge in respect of the Commissioner’s errors of law, the proper scope of Infopaq and Painer, and the proper test for originality were not challenged in this appeal. Instead, the Commissioner decided to challenge the High Court judgment on this point on these related grounds:

(a) In deciding that the transcript was covered by copyright, the trial judge “substituted his findings of fact for those of the Commissioner”.

(b) The trial judge “did not find that the Commissioner erred in articulating the correct legal test but reached his own view on the application of that test”.

(c) “The Judge reached his own view of the application of the ‘free and creative choices’ test to the content of the Transcript (which he had not viewed) …This is inconsistent with the function of the Court, as set out in Deely, Sheedy and Minch and amounts to an error of law. As the Transcript was before the Commissioner, but not before the High Court, the Commissioner’s findings should be given presumptive deference.” These grounds are to be found in Grounds of Appeal 10, 12 and 13 respectively.

120. The restricted scope of the appeal on the copyright issue was vividly illustrated in the written and oral submissions of the parties. Consistent with the approach we have described earlier in the judgment, counsel for the Commissioner described as a “finding of fact” the

decision that the transcript did not meet the test for originality under EU law and was not protected by copyright. The Commissioner’s written submissions go on (at para. 58): - “The role of the High Court was not to analyse transcripts generally and apply the test, but to see if the Commissioner erred in law. The High Court did not conclude that the Commissioner misunderstood the legal test, nor that the Commissioner’s decision was unreasonable. The Court took a different view in circumstances where the evidence was not actually before it but was before the Commissioner.”

121. This is simply wrong. The trial judge had found, in a number of passages, that the Commissioner had erred in law in the approach he took towards what was needed in order to establish copyright. The trial judge had therefore concluded that the Commissioner had misunderstood the legal test. The Notice of Appeal does not claim that the trial judge was wrong in finding that the Commissioner erred in law. Indeed, it is difficult to see how it could have made such an assertion, as the central argument run by the Commissioner in this appeal on the copyright point is that no such findings had been made and that the trial judge should have deferred to the Commissioner’s views on factual matters.

122. Lest there be any doubt about it, the trial judge found (under the heading ‘The test for originality’) that the Commissioner had erred in law as follows: -

(a) At paragraph 172 of the judgment, he held that; “In deciding that the Transcript could not satisfy what the Commissioner seems to have considered to be an originality requirement, he erred in law…However, despite what was plainly an enormous effort on the Commissioner’s part, an error of law arose.”

(b) At paragraph 173, and as already noted at paragraph 28 of this judgment, Heslin J. held that: “Considering the decision as a whole, the error in respect of Regulation 9(1)(d) appears to stem from an overly-narrow emphasis on creativity, as an aspect of originality.”

(c) At paragraph 174, the trial judge criticises the Commissioner’s approach towards the law in this way: “…the Commissioner begins (at para. 42) by indicating that the requirement for originality per the decision in Gormley is consistent with the approach in EU law, but he proceeds to look at originality in a far ‘narrower’ way than expressed by the Supreme Court in Gormley. Given the contents of para. 42, the Commissioner does not appear to suggest that EU law imposes a more stringent approach than the test in Gormley but, even if he took such a view, it is not at all clear why the Transcript failed to meet any such ‘higher’ test. Nor is it at all clear what the Commissioner means by his use of the word ‘creativity’ when he stated; “I cannot see how it involves any element of creativity or original thought so as to satisfy the test for originality.” It would appear that he is drawing a distinction between creativity, on the one hand, and original thought, on the other. Why he is not satisfied that there is any element of either, is entirely unclear.” This passage constitutes not only a criticism of the Commissioner’s application of any test but also a pungent critique of his understanding and enunciation of the applicable law.

(d) At paragraph 175 of the judgment, the trial judge repeats that the Commissioner’s critical conclusion on copyright “was an error of law by the Commissioner.”

123. It is simply unreal to argue that the trial judge made no finding that the Commissioner had erred in law. Given those findings, it is not open to the Commissioner to take refuge behind an argument that his decision on copyright was a finding of fact in respect of which he deserves deference from the High Court. The view of the Commissioner as to the correct legal test cannot be seen as a finding of fact.

124. At the hearing of this appeal, the limited nature of the Commissioner’s position on this point became even plainer. In his opening submissions, counsel said little about the copyright element of the appeal. This provoked a response from counsel for ESB (at page 58 of the transcript) to this effect: “Again, the focus on the appeal [on copyright] is the question of deference and the jurisdiction of the High Court on a point of law. There’s limited engagement of the substance. At its height, the Commissioner restates what is in his decision, and again there’s a reasons finding under that heading that isn’t appealed.” Later, and in the course of interaction with the court, counsel submitted: “So, it’s really not clear as to whether the Commissioner is actually advancing an appeal on those substantive grounds, if he is unsuccessful on what you might call, the deference grounds.”

125. Tellingly, in his reply the Commissioner’s counsel did not address head on this important and simple issue about the scope of his appeal on this point. He stated (at page 96 of the transcript): “In respect of the, the copyright issues, members of the Court, we stand over the analysis by [the Commissioner]. We say the Commissioner identified the correct test, and he did so in conformity with European case law at Infopaq.”

126. When asked if the substantive issue about copyright law was part of the appeal at all, he replied: “[Counsel]: I think you have to respond to that by saying we stand over the deference points. If the Court’s not with me on that, then it’s a full, full-blown appeal. [Judge]: Yes. [Counsel]: The Court has jurisdiction of course, to engage in that if the Court isn’t with me on, on the deference point. But that’s why the appeal, that’s why we appealed that specifically because we said that was something the Commissioner had formed a view on and concluded on. In terms of the test to be applied, Infopaq said in paragraph 45: “It’s the choice, sequence and combination of words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation”. That’s the test that, that was applied in Infopaq, that’s the test the Commissioner applied. The High Court came to a different view, and in fact cited each use of these as the –has said. We say unless the Commissioner’s analysis was unreasonable, it should stand.”

127. In summary, the Commissioner has not disputed the High Court’s analysis of the correct legal principles to be applied in deciding whether or not copyright can properly be claimed in respect of the transcript. While the Commissioner stands over his analysis, he has at no point set out in any meaningful way why Heslin J. is wrong in finding that the Commissioner has erred in law in his approach to the copyright question. In our view, he has not even asserted in the Notice of Appeal that the trial judge’s analysis is incorrect in this regard let alone argued why this is so. The essential case made is that the trial judge has overreached himself in substituting his view for that of the Commissioner while at the same time not finding any error of law on the Commissioner’s part. As noted at para. 121 et seq of this judgment, that last argument is simply wrong. As to deference, no deference was due to the Commissioner by the High Court judge in respect of a question of law. If the High Court was wrong in his view of the law, that could have been challenged in this appeal but has not been. The mere fact that the Commissioner’s decision referred to Infopaq (and other relevant authorities) does not mean that the High Court judge was not entitled to disagree with the Commissioner’s understanding of the legal meaning and significance of those decisions.

128. This aspect of the appeal therefore fails. As the appeal on the copyright issue was grounded on the type of arguments we have set out at paragraph 119, and not on the substantive issue of whether or not the transcript actually attracts copyright, this judgment does not purport to address that issue.

Conclusions

129. In light of the above analysis, the following are our conclusions:

(a) Notwithstanding that the appeal to the High Court from a decision of the Commissioner is a limited one on a point of law only, the High Court did not err in considering whether the Commissioner had correctly applied the law to the undisputed facts before him. In this instance, the Commissioner’s decision was not fact specific and purported to apply to the transcript as a whole with no particular portions of it being identified by him as relevant to his conclusions. The application of legal principles to a given factual scenario is not exclusively a question of fact and, where the facts are undisputed, the question may be predominantly a legal one.

(b) In circumstances where the Commissioner’s decision that the transcript as a whole constituted environmental information was the diametric opposite to a previous

decision regarding the same transcript, there was an obligation on the Commissioner to provide reasons for this change of position. The fact the Commissioner is not bound by his earlier decisions and may change his mind on a fresh review does not constitute a reason for changing his mind. As such reasons had not been provided, the High Court did not err in finding that the Commissioner’s decision was not adequately reasoned.

(c) The High Court was correct in holding that there was not a sufficient connection between the information in the transcript and the measure (i.e. the electricity line) for the transcript as a whole to constitute “environmental information” on the measure within the meaning of Article 3(1)(c) of the AIE Regulations.

(d) The Commissioner failed to establish that the High Court had erred in its treatment of two relevant authorities, namely Redmond v. CEI and Friends of the Irish Environment v. CEI.

(e) The Commissioner’s decision that the transcript was covered by copyright was not one on a question of fact excluded from the scope of an appeal on a point of law. Without prejudice to this, the High Court made a number of findings to the effect that the Commissioner had erred in law in his understanding and application of the legal test regarding copyright which had not been appealed by the Commissioner.

130. It follows from these conclusions that the Commissioner’s appeal is rejected on all grounds.

131. We note that the High Court order includes an order for the ESB’s costs as against the Commissioner. The Notice of Appeal looks for an order for the costs of the appeal but does not advance any specific ground, apart from the outcome of the High Court case, as to why the normal rules as to costs should not apply. Consequently, it seems to us that the appropriate order for costs is one for the costs of the appeal in favour of the ESB against the Commissioner. If the Commissioner wishes to contend for a different order, he may file written submissions in support of that contention within 14 days of the delivery of this judgment and the ESB will have a similar period within which to reply. In the absence of receipt of such submissions, the order will include an order for costs drawn up in terms indicated in this paragraph.

132. President Costello has read this judgment in advance of its delivery and has indicated her agreement thereto.