[2025] IEHC 160

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.MCA.2024.0000054]

IN THE MATTER OF AN APPEAL PURSUANT TO ARTICLE 13 OF THE EUROPEAN COMMUNITIES (ACCESS TO INFORMATION ON THE ENVIRONMENT) REGULATIONS 2007-2014

BETWEEN

RAIDIÓ TEILIFÍS ÉIREANN

APPELLANT

AND

 

THE COMMISSIONER FOR ENVIRONMENTAL INFORMATION

RESPONDENT

AND

 

RIGHT TO KNOW CLG, THE EUROPEAN BROADCASTING UNION (BY ORDER), IRELAND, THE ATTORNEY GENERAL, THE MINISTER FOR THE ENVIRONMENT, CLIMATE AND COMMUNICATIONS AND THE MINISTER FOR TOURISM, CULTURE, ARTS, GAELTACHT, SPORT AND MEDIA (BY ORDER)

NOTICE PARTIES

(No. 2)

JUDGMENT of Humphreys J. delivered on Friday the 21st day of March 2025

Subject-matter of the dispute

1.            This request for a preliminary ruling concerns the interpretation of Articles 2 and 6 of Directive 2003/4.

2.            The request is being made in proceedings concerning a request to the Commissioner for Environmental Information by the first named notice party, Right to Know CLG, for access to what is said to be environmental information from Raidió Teilifís Éireann (RTÉ), the Irish national public broadcaster.   

European Union law

3.            Article 47 of the EU Charter of Human Rights provides:

"Article 47 - Right to an effective remedy and to a fair trial

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.  Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice."

4.            The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (done at Aarhus on 25 June 1998, entered into force 30 October 2001), 2161 UNTS 447 (the Aarhus Convention) was adopted on behalf of the EU by Decision 2005/370.  It inter alia provides for access to information as one of the three pillars of the convention alongside public participation and access to justice.

5.            Article 9 provides:

"Article 9

ACCESS TO JUSTICE

1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.

In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law.

Final decisions under this paragraph 1 shall be binding on the public authority holding the information.  Reasons shall be stated in writing, at least where access to information is refused under this paragraph.

2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned

(a) Having a sufficient interest

or, alternatively,

(b) Maintaining impairment of a right, where the administrative

procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.

What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention.  To this end, the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above.  Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.

The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.

3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene

provisions of its national law relating to the environment.

4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive.  Decisions under this article shall be given or recorded in writing.  Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice."

6.            Directive 90/313 initially provided for access to information on the environment.  Directive 2003/4 repealed and replaced Directive 90/313.

7.            Article 2 of Directive 2003/4 provides:

"Article 2

Definitions

For the purposes of this Directive:

1. 'Environmental information' shall mean any information in written, visual, aural, electronic or any other material form on:

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

(d) reports on the implementation of environmental legislation;

(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and

(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c).

2. 'Public authority' shall mean:

(a) government or other public administration, including public advisory bodies, at national, regional or local level;

(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and

(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).

Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity.  If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition.

3. 'Information held by a public authority' shall mean environmental information in its possession which has been produced or received by that authority.

4. 'Information held for a public authority' shall mean environmental information which is physically held by a natural or legal person on behalf of a public authority.

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

6. 'Public' shall mean one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups."

8.            Article 6 of Directive 2003/4 provides for recourse to review:

"Article 6

Access to justice

1. Member States shall ensure that any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions of Articles 3, 4 or 5, has access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that or another public authority or reviewed administratively by an independent and impartial body established by law.  Any such procedure shall be expeditious and either free of charge or inexpensive.

2. In addition to the review procedure referred to in paragraph 1, Member States shall ensure that an applicant has access to a review procedure before a court of law or another independent and impartial body established by law, in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final.  Member States may furthermore provide that third parties incriminated by the disclosure of information may also have access to legal recourse.

3. Final decisions under paragraph 2 shall be binding on the public authority holding the information.  Reasons shall be stated in writing, at least where access to information is refused under this Article."

9.            While Article 9(1) of Aarhus has a requirement of expedition, the EU legislature has applied that to the review created in Article 6(1) of Directive 2003/4. 

10.         In the main proceedings reliance was placed by the commissioner on Directive 2019/1024 on the basis that Recital 5 clearly states that access to information is a fundamental right.  Secondly, that directive contains a specific opt-out for public service broadcasters in Article 1(2)(i).  There is no equivalent provision in Directive 2003/4.

Domestic law

11.         The original directive on this subject, Directive 90/313, was transposed by the European Communities Act 1972 (Access to Information on the Environment) Regulations 1998 (S.I. No. 125 of 1998) (https://www.irishstatutebook.ie/eli/1998/si/125).

12.         The European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007) which revoke the 1998 regulations involve an almost literal transposition of the current Directive 2003/4.  

13.         A relevant aspect of the domestic regulations is that the body carrying out the investigation, namely the commissioner, is also the body deciding whether there should be access to records that are prima facie privileged.  So there is a lack of independence in that decision.  The constitutionality of this procedure has not been challenged, although on one view it cuts against the tenor of the Supreme Court decision in Damache v. DPP [2012] IESC 11, [2012] 2 I.R. 266 (Denham C.J.) (https://www.courts.ie/view/judgments/cc9927d8-2a95-40e5-ba1f-2e996b7adb22/339ec1af-0874-48fa-a6ae-1b92a7bb4501/2012_IESC_11_1.pdf/pdf).

14.         The appeal constituting the main proceedings is brought to the court against the decision of the commissioner under Article 13 of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007) (the 2007 regulations) (https://revisedacts.lawreform.ie/eli/2007/si/133/front/revised/en/html).

15.         The 2007 regulations transpose Directive 2003/4 in Irish law.  Article 3 is as follows:

"3. (1) In these Regulations—

'applicant' means any natural or legal person requesting environmental information pursuant to these Regulations;

'Commissioner' means the holder of the office of Commissioner for Environmental Information established under article 12;

'Directive' means Directive 2003/4/EC of the European Parliament and of the Council of 28 January 20031, which, for convenience of reference, is set out in the Schedule;

'environmental information' means any information in written, visual, aural, electronic or any other material form on—

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,

(d) reports on the implementation of environmental legislation,

(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and

(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);

'environmental information held by a public authority' means environmental information in the possession of a public authority that has been produced or received by that authority;

'environmental information held for a public authority' means environmental information that is physically held by a natural or legal person on behalf of that authority;

'Minister' means the Minister for the Environment, Heritage and Local Government;

'public authority' means, subject to sub-article (2)—

(a) government or other public administration, including public advisory bodies, at national, regional or local level,

(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment, and

(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b),

and includes—

(i) ...

(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,

(vii) a company under the Companies Acts, in which all the shares are held—

(I) by or on behalf of a Minister of the Government,

(II) by directors appointed by a Minister of the Government,

(III) by a board or other body within the meaning of paragraph (vi), or

(IV) by a company to which subparagraph (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information;

'request' means a request for environmental information pursuant to article 6.

...

(3) A word or expression that is used in these Regulations and is also used in the Directive has the same meaning in these Regulations that it has in the Directive."

16.         Article 7 states:

"7. (1) A public authority shall, notwithstanding any other statutory provision and subject only to these Regulations, make available to the applicant any environmental information, the subject of the request, held by, or for, the public authority.

(2) (a) A public authority shall make a decision on a request and, where appropriate, make the information available to the applicant as soon as possible and, at the latest, but subject to paragraph (b) and sub-article (10), not later than one month from the date on which such request is received by the public authority concerned.

(b) Where a public authority is unable, because of the volume or complexity of the environmental information requested, to make a decision within one month from the date on which such request is received, it shall, as soon as possible and at the latest, before the expiry of that month—

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

(ii) specify the date, not later than 2 months from the date on which the request was received, by which the response shall be made,

and make a decision on the request and, where appropriate, make the information available to the applicant by the specified date.

(3) (a) Where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless—

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

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

(b) Where a public authority decides to make available environmental information other than in the form or manner specified in the request, the reason therefor shall be given by the public authority in writing.

(4) Where a decision is made to refuse, in whole or in part, a request for environmental information, the public authority concerned shall—

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

(b) in a case to which sub-article (2)(b) applies, notify the applicant as soon as possible but not later than 2 months following receipt of the request,

(c) specify the reasons for the refusal,

(d) inform the applicant of his or her rights of internal review and appeal in accordance with these Regulations, including the time within which such rights may be exercised.

(5) Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it.

...

(8) Where a request is made by the applicant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request, invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request.

..."

17.         Article 11 states:

"Internal review of refusal

11. (1) Where the applicant's request has been refused under article 7, in whole or in part, the applicant may, not later than one month following receipt of the decision of the public authority concerned, request the public authority to review the decision, in whole or in part.

(2) Following receipt of a request for a review under sub-article (1), the public authority concerned shall designate a person unconnected with the original decision whose rank is the same as, or higher than, that of the original decision-maker to review the decision and that person shall—

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

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

in accordance with these Regulations.

(3) A decision under sub-article (2) shall be notified to the applicant within one month from receipt of the request for the internal review.

(4) Where the decision under sub-article (2) affirms a decision under article 7, or varies it in a way that results in the request being refused in whole or in part, the public authority concerned shall—

(a) specify the reasons for the decision under sub-article (2), and

(b) inform the applicant of his or her right of appeal in accordance with these Regulations, including the time within which such right may be exercised.

(5) In sub-article (1) and article 12(3)(a), the reference to a request refused in whole or in part includes a request that—

(a) has been refused on the ground that the body or person concerned contends that the body or person is not a public authority within the meaning of these Regulations,

(b) has been inadequately answered, or

(c) has otherwise not been dealt with in accordance with Article 3, 4 or 5 of the Directive (including the ground that the amount of the fee charged under article 15(1) is excessive)."

18.         Article 12 states:

"Appeal to Commissioner for Environmental Information

12. (1) There is established the office of Commissioner for Environmental Information and the holder of the office shall be known as the Commissioner for Environmental Information and shall be independent in the performance of his or her functions.

...

(4) (a) An appeal under this article shall be initiated—

(i) not later than one month after receipt of the decision under article 11(3), or

(ii) where no decision is notified by a public authority, not later than one month from the time when a decision was required to be notified under article 11(3).

(b) Where the Commissioner is satisfied, in the circumstances of a particular case, that it is reasonable to do so, he or she may extend the time for initiating an appeal under this sub-article.

(5) Following receipt of an appeal under this article, the Commissioner shall—

(a) review the decision of the public authority,

(b) affirm, vary or annul the decision concerned, specifying the reasons for his or her decision, and

(c) where appropriate, require the public authority to make available environmental information to the applicant, in accordance with these Regulations.

(6) The Commissioner may, for the purposes of this article, do any of the following:

(a) require a public authority to make available environmental information to the Commissioner and, where appropriate—

(i) require the public authority concerned to attend before the Commissioner for that purpose, and

(ii) where the public authority is a body corporate, require its chief officer to attend,

(b) examine and take copies of any environmental information held by a public authority and retain it in his or her possession for a reasonable period,

(c) enter any premises occupied by a public authority and there require to be furnished with such environmental information as he or she may reasonably require, or take such copies of, or extracts from, any environmental information found or made available on the premises.

(7) A public authority shall comply with a decision of the Commissioner under sub-article (5) within 3 weeks after its receipt.

..."

19.         Article 13 states:

"Appeal to High Court on point of law

13. (1) A party to an appeal under article 12 or any other person affected by the decision of the Commissioner may appeal to the High Court on a point of law from the decision.

(2) An appeal under sub-article (1) shall be initiated not later than 2 months after notice of the decision under article 12(5) was given to the party to the appeal or other person affected.

(3) Where an appeal under this article by an applicant or other person affected is dismissed by the High Court or, on appeal from that Court, the Supreme Court, the Court may order that some or all of the costs in relation to the appeal of any person affected be paid by the public authority concerned, if it considers that the point of law concerned was of exceptional public importance, and but for this sub-article, would not so order.

(4) In an appeal under this article to the High Court or, on appeal from that Court, the Supreme Court, the Court shall, where appropriate, specify the period within which effect shall be given to its order."

20.         In the Irish context, the internal review appears to correspond to Article 6(1) of Directive 2003/4 and the appeal to the commissioner and to the court appears to correspond to Article 6(2).

21.         In Case ACCC/C/2016/141 (Ireland), the Aarhus Convention Compliance Committee decided that the Irish domestic court is also acting under the first sub-paragraph of Article 9(1) of the Aarhus convention, and is subject to a requirement of timeliness under Article 9(4), a requirement that was not being complied with in Ireland as of the date of that finding (https://unece.org/sites/default/files/2021-04/ece_mp.pp_c.1_2021_8_eng.pdf).

22.         Numerous provisions of the Broadcasting Act 2009 (https://revisedacts.lawreform.ie/eli/2009/act/18/front/revised/en/html) are relevant.

23.         Section 2(1) includes the following definitions:

"'corporation' means RTÉ or TG4 or both, as the case may be;

...

'Raidió Teilifís Éireann' means the authority established under section 3 of the Broadcasting Authority Act 1960;

...

'RTÉ' means Raidió Teilifís Éireann;

...

'Teilifís na Gaeilge' means the body established by section 44 of the Act of 2001;

'TG4' means Teilifís na Gaeilge;"

24.         Section 81 states:

"81.— (1) The number of members of the board of a corporation shall be 12 in number, of which—

(a) 6 of them shall be appointed by the Government on the nomination of the Minister,

(b) subject to subsection (2), 4 of them shall be appointed by the Government on the nomination of the Minister,

(c) one shall be appointed by the Government following an election in accordance with section 83, and

(d) one shall be the director general of the corporation.

(2) Where an appointment is to be made by the Government under subsection (1)(b) or under that paragraph arising from a vacancy referred to in section 84(12)—

(a) the Minister shall inform the Joint Oireachtas Committee of the proposed appointment,

(b) The Minister in respect of an appointment under subsection (1)(a) shall provide a statement to the Joint Oireachtas Committee indicating the relevant experience and expertise of the persons or person nominated by the Minister for appointment or appointed by the Government on the nomination of the Minister, and such other matters as the Minister considers relevant,

(c) the Joint Oireachtas Committee shall within the period of 90 days of being so informed, advise the Minister of the names of the persons or name of the person it proposes that the Minister should nominate under subsection (1)(b) giving reasons, such as relevant experience and expertise, in relation to the proposed named persons or person,

(d) the Minister shall have regard to the advice and may accept the proposed named persons or some of them or the named person or decide to nominate as he or she sees fit other persons or another person, and

(e) inform the Joint Oireachtas Committee of his or her decision.

..."

25.         Section 87 provides:

"87.— Subject to the requirements of this Act every member of the board of a corporation shall perform his or her functions in such a manner as to—

(a) represent the interests of viewers and listeners,

(b) ensure that the activities of the corporation in pursuance of its objectives as set out in section 114(1) or 118(1) are performed efficiently and effectively,

(c) ensure that the gathering and presentation by the corporation of news and current affairs is accurate and impartial, and

(d) safeguard the independence of the corporation, as regards, the conception, content and production of programmes, the editing and presentation of news and current affairs programmes and the definition of programme schedules from State, political and commercial influences."

26.         Section 98 states:

"98.— Subject to the requirements of this Act, a corporation shall be independent in the pursuance of its objects."

27.         Section 110 states:

"110.— (1) A corporation shall, not later than 30 June in each year make a report to the Minister (in this section referred to as the 'annual report') in such form as the Minister may approve, on the performance of its functions and activities during the preceding year, and the Minister shall cause copies of the report to be laid before each House of the Oireachtas.

(2) Whenever the Minister so directs, the annual report shall also include such additional information on the performance of the corporation's functions and activities during the preceding year as the Minister may specify.

(3) A corporation shall co-operate with the Minister and the Authority in the performance of their respective functions under this Act including providing them with all necessary information.

(4) RTÉ shall on the third and fifth anniversaries of 18 April 2007 carry out a review of the provision of the television broadcasting service and sound broadcasting service referred to in paragraph (f) of section 114 (1).

(5) RTÉ shall make a report to the Minister of each review carried out by it under subsection (4).

(6) The Minister shall cause copies of each report made to him or her under subsection (5) to be laid before each House of the Oireachtas."

28.         Section 114(1) states:

"114.— (1) The objects of RTÉ are—

(a) to establish, maintain and operate a national television and sound broadcasting service which shall have the character of a public service, be a free-to-air service and be made available, in so far as it is reasonably practicable, to the whole community on the island of Ireland,

(b) to establish and maintain a website in connection with the services of RTÉ under paragraphs (a), (c), (d), (e), (f), (g), (h) and (i),

(c) to establish and maintain a concert orchestra and other cultural performing groups in connection with the services of RTÉ under paragraphs (a), (f), (g) and (h),

(d) to assist and co-operate with the relevant public bodies in preparation for, and execution of, the dissemination of relevant information to the public in the event of a major emergency,

(e) to establish and maintain archives and libraries containing materials relevant to the objects of RTÉ under this subsection,

(f) to establish, maintain and operate a television broadcasting service and a sound broadcasting service which shall have the character of a public service, which services shall be made available, in so far as RTÉ considers reasonably practicable, to Irish communities outside the island of Ireland,

(g) subject to the consent of the Minister, the Minister having consulted with the Authority, to establish, maintain and operate, in so far as it is reasonably practicable, community, local, or regional broadcasting services, which shall have the character of a public service, and be available free-to-air,

(h) subject to the consent of the Minister, the Minister having consulted with the Authority, to establish and maintain audiovisual on-demand media services, in so far as it is reasonably practicable, which shall have the character of a public broadcasting service (such consent not being required in respect of such services which are ancillary to a broadcasting service provided under paragraphs (a), (d), (f) and (g)),

(i) to establish, maintain, and operate one or more national multiplexes,

(j) so far as it is reasonably practicable, to exploit such commercial opportunities as may arise in pursuit of the objects outlined in paragraphs (a) to (i)."

29.         Section 123 provides:

"123.— (1) The Minister, with the approval of the Minister for Public Expenditure and Reform, may pay to RTÉ and TG4 out of monies provided by the Oireachtas, in respect of each financial year beginning with the financial year commencing on 1 January 2011, an amount equal to the total of the receipts in that year in respect of television licence fees apportioned to RTÉ and TG4 as the Minister determines in accordance with subsection (1A) less—

(a) any expenses certified by the Minister as having been incurred by him or her in that year in relation to the collection of those fees, and

(b) any amount paid under section 156(2).

(1A) (a) The Minister shall, after consultation with the Minister for Public Expenditure and Reform, determine the portion of the amount referred to in subsection (1) to be paid to RTÉ and TG4 respectively.

(b) When making a determination for the purposes of paragraph (a), the Minister shall have regard to the ability of RTÉ and TG4 to fulfil their public service objects.

(2) The amount paid to RTÉ in each financial year under subsection (1) of this section, shall be used by RTÉ solely for the purposes of—

(a) pursuing its public service objects, and

(b) paying amounts levied on RTÉ under section 33.

...

(3) The Minister, with the consent of the Minister for Finance, may from time to time, pay to RTÉ such an amount as he or she determines to be reasonable for the purposes of defraying the expenses incurred by RTÉ in the pursuance of its public service objects.

..."

30.         There are two particularly relevant previous domestic decisions:

                    (i)        Right to Know CLG v. Commissioner for Environmental Information & Raheenleagh Power DAC [2024] IESC 7 (Unreported, Supreme Court, O'Malley J., 6 March 2024) (https://www.courts.ie/view/judgments/e8b67a71-686f-484b-8c7e-cbd0be130d22/a828932f-fd46-42c5-a08e-4b94fa1c4ad2/2024_IESC_7_(O'Malley%20J).pdf/pdf) - the commissioner erred in separating out the components of the relevant tests for paragraphs (b) and (c) of Article 3(1) of the regulations and in the assessment of the questions relating to special powers, public responsibilities, services and functions and the control of the company in question.  This case is relevant to the third question below because the Supreme Court decided in essence that as a matter of domestic law, a domestic court seized of an appeal from a decision of the commissioner should remit the matter to the commissioner if the matter required further fact-finding or evaluative judgement, rather than engage in such fact-finding or evaluative judgement itself. 

                   (ii)        While there is no previous litigation history regarding the matter at hand, there was a previous action between the parties concerning a different request, Right to Know CLG v. Commissioner for Environmental Information and RTÉ [2021] IEHC 353, [2021] 4 JIC 2008 (Unreported, High Court, Barrett J., 20 April 2020) (https://www.courts.ie/view/judgments/7b38915d-f3b3-40dd-8a41-16231fa92608/7c46f8ac-5cac-46fb-b30f-2cb13a894405/2021_IEHC_353.pdf/pdf).  In that case, RTÉ did not make an issue of whether it was a public authority.  That concession in that case does not prevent RTÉ from disputing that issue in the main proceedings here.  The court there concluded inter alia that  broadcasting and reporting on the issue of climate change was a measure and activity within the meaning of paragraph (c) of the definition of environmental information.  It was also determined that climate change is a factor affecting or likely to affect the elements of the environment within the meaning of paragraph (b) of the definition of environmental information.  If RTÉ is ultimately held to be a public authority, RTÉ appears to be reserving their right to dispute those issues at a later stage.

Facts in relation to the status of RTÉ

31.         RTÉ is Ireland's public service broadcaster and is one of the oldest continuously operating public service broadcasters in the world.  As Radio Éireann, it was statutorily established by the Broadcasting Authority Act 1960.  The name of Radio Éireann was changed to Radio Teilifís Éireann by section 3 of the Broadcasting Authority (Amendment) Act 1966.  In its current iteration, its name was changed to Raidió Teilifís Éireann by section 113 of the Broadcasting Act 2009, under which it stands established as a statutory corporation.  RTÉ is established as a public service broadcaster to work within the parameters of the statute.  All members of the board of RTÉ are appointed by the Government.  RTÉ is required to report to the Minister for the Environment, Climate and Communications, the Oireachtas and the public as to the performance of its functions.  It must have a statutory code of conduct and is subject to statutory disclosure of interests.  It reports to Oireachtas committees and has many of the indicia of public law bodies guided by public law constraints.

32.         The principal objects and associated powers of RTÉ are in section 114 of the 2009 Act.  They include inter alia the establishment, maintenance and operation of a national television and sound broadcasting service, which shall have the character of a public service, be a free-to-air service and be made available, as far as is practicable, to the whole community on the island of Ireland.  In pursuance of this, RTÉ is obliged to provide community, local or regional broadcasting services.  RTÉ's objects under section 114(1) also include the maintenance of a website in connection with its services, the establishment and maintenance of an orchestra, archives and libraries and to assist public bodies to disseminate information in the event of a major emergency.  The legislative framework includes an obligation to provide news and programming in both the Irish and English languages as well as specific statutory obligations regarding its broadcast of news and current affairs content.  RTÉ currently provides television and radio services as well as a non-linear/simulcast and on-demand service such as the RTÉ Player.

33.         RTÉ is dual-funded.  Pursuant to section 123(1) of the 2009 Act, the relevant Minister may pay to RTÉ out of monies provided by the Oireachtas in respect of each financial year after the passing of the Act an amount equal to the total of receipts in that year in respect of television licence fees, less expenses and payments to the Broadcasting Fund.  RTÉ is also obliged to earn commercial revenue.  Pursuant to section 114(1)(j) of the 2009 Act, RTÉ is obliged to exploit commercial opportunities as may arise in pursuit of its public service objects.

34.         Requests which have been made to RTÉ pursuant to the 2007 regulations as amended to date include:

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

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

                 (iii)        records relating to research which showed Morning Ireland's "poor" environmental coverage;

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

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

                 (vi)        information relating to RTÉ Investigates programme entitled "A Rock & A Hard Place"; including locations of all quarries, details of county councils using products from unauthorised quarries, description of all information held by RTÉ;

                (vii)        records relating to RTÉ's refusal to host a debate involving party leaders on climate change during election coverage;

               (viii)        records prepared for the RTÉ board about the RTÉ Player, it being contended that the data storage, processing and power consumption make these environmental records;

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

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

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

                (xii)        legal costs associated with AIE requests;

               (xiii)        contracts for the sponsorship of the Countrywide radio programme, sponsorship of the weather bulletins, sponsorship of traffic updates; the amount of money or value in kind received by RTÉ from these over the last three years;

               (xiv)        records in relation to the publication on Twitter from then head of news apologising for RTÉ's climate coverage;

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

               (xvi)        a copy of all video footage, whether broadcast or not, generated or obtained by RTÉ Investigates programme including a list of staff who worked on the programme, a copy of all information provided to the programme from persons who were outside of RTÉ, the costs of the programme, information relating to the knowledge of programme makers of vehicle tracking devices used during the making of the programme and whether the programme-makers benefitted from the information generated by tracking devices;

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

             (xviii)        records on RTÉ programmes stating their carbon footprint; RTÉ policy on carbon offsetting for flights and other polluting activities;

               (xix)        pest control reports and invoices;

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

               (xxi)        details of RTÉ's policies arising from a High Court decision that found broadcasting was a factor that could impact on the environment;

              (xxii)        records supporting claim on programme that Atlantic salmon could disappear from Irish rivers from 2030 onwards; and

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

35.         Clearly these include requests for information which relates to journalistic activities and that which would, at a level of principle, benefit from privilege associated with journalistic activities and press freedom.

36.         The commissioner sought to rely on the fact that the Irish Central Statistics Office (CSO) maintains a register of public bodies under Regulation 549/2013 which classifies RTÉ as a "non-commercial agency under the aegis of [a] Department".  However, in the view of the referring court this is irrelevant to the matter at hand.  The CSO is not an arm of central government and its classifications appear to be a reflection of the source of funding of the body concerned as opposed to its true legal status.  For example, the Irish Courts Service, the awards scheme of the President of Ireland (Gaisce), the President's establishment itself and the Abbey Theatre are given the same classification as RTÉ for CSO purposes.  The Courts Service has been determined not to be a public body for the purposes of the Directive 2003/4 by way of implementation of the decision of  the CJEU (Grand Chamber) that in relation to such a body, "because it has close links with the Irish courts, under the supervision of which it is placed, the view must be taken that it constitutes, like those courts, a judicial authority, which would, ... remove it from the scope of that directive": judgment of 15 April 2021, Friends of the Irish Environment, C-470/19, ECLI:EU:C:2021:271, paragraph 43.  Also, notably, the commissioner did not rely on this classification when making the impugned decision.

Facts in relation to the problem of false balance

37.         The referring court accepts the following averments by Mr Foxe on behalf of the notice party:

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

9.         Part of the background to this request and others that the Notice Party has made to RTÉ is the issue of false balance in the reporting of climate change.  This occurs where a media organisation feels that it must ensure balance in its reporting of climate change by including coverage of climate change denial, even though there is overwhelming scientific consensus concerning the reality of and the harm caused by climate change.

10.       The issue was serious enough that An Taisce made a formal complaint in 2016 to the Broadcasting Authority of Ireland concerning an RTÉ Prime Time programme entitled 'How much will climate change cost Ireland'.  ...

11.       ...

12.       In fact in 2021, the Managing Director of RTÉ News published an article which acknowledged criticism of its failings in its coverage of climate change (https://www.rte.ie/news/analysis-and-comment/2021/0726/1237408-climate-change/).  ...

13.       In 2023 RTÉ published a strategy on Climate Change (https://about.rte.ie/wp-content/uploads/2023/05/RTE-Climate-Action-Screen.pdf) which states:

As Ireland's principal public service media organisation, RTÉ plays a trusted and vital role in informing our audiences about the key issues which concern us and in shaping national debate.  Climate change is one of these issues, now more than ever.  Given the urgency in addressing climate change, we in RTÉ are mindful of the need to do more, to be a positive influence, not just within our own industry, but also across the public sector and across Irish society as a whole. ...

14.       The issue is broader than this.  As set out in the affidavit of Ms O'Leary, the Notice Party has a pending appeal seeking details of the commercial relationship between RTÉ and the AA (a motoring lobbyist), Avonmore (a dairy company) and the Irish Farmer's Journal (a newspaper owned by the Irish Farmers Association).  Clearly the use of motor vehicles, and animal-based farming entail very significant emissions of carbon and other pollutants yet organisations with commercial interests in these areas also have (or had) a commercial relationship with RTÉ through sponsorship of traffic alerts, the weather forecast and Countrywide, a program concerned with rural affairs.

15.       An Taisce expressed similar concerns around sponsorship of the Late Late Show by Renault including payments to [the presenter of that programme] that are now subject to investigation and the commercial relationship between other celebrities and car brands and their alleged use of RTÉ property to promote these brands as part of their commercial relationship.  ...

16.       ...

19.       The EPA has carried out research into the role of the media in communicating climate change issues (Climate Change in Irish Media, Report No 300, November 2019).  The executive summary states (Tab 7 of the exhibit):

As scientists, policymakers, environmental non-governmental organisations (NGOs) and climate activists seek to engage the public on climate change, it is important to first understand how climate change is communicated to the public via the media.  Research indicates that public concern about climate change is largely derived from media consumption.  However, assessing media coverage of climate change is not simply about the accumulation of content over time.  Rather, it concerns the complex and evolving relationships between media production practices, scientific knowledge, policy agendas, and public understanding and engagement.

20.       ...."

38.         The exhibited EPA report (https://www.epa.ie/publications/research/climate-change/research-300-climate-change-in-irish-media.php) contains a summary as follows at p. xi:

"...

Scholars now recognise that images are a valuable tool for fostering engagement with climate change.  An analysis of the images associated with climate change on The Irish Times website highlights the shifting cultural politics of climate change.  A wide range of images links climate change to the practices of everyday life, but this apparent normalisation stands in contrast to the dearth of images linking climate change to topical news stories such as flooding and economic recovery.  Moreover, images of farming and agriculture are rarely linked to climate change, even though agriculture is one of Ireland's major sources of CO₂ and non-CO₂ emissions.

Given the constraints of much commercial media across Europe, publicly funded broadcasters such as RTÉ would appear ideally placed to communicate climate change to the public.  Prior to 2000, climate change was largely an invisible issue on RTÉ.  Since then, there have been broad fluctuations in the volume of coverage.  A range of high-profile international events, such as Live Earth, brought a sharp increase in RTÉ coverage in 2007.  However, coverage fell significantly following the financial crisis and did not recover until the build-up to the United Nations (UN) Conference of the Parties in 2015.  Much like newspaper coverage, the national broadcaster does not appear to follow a specific editorial climate change agenda, although some individual journalists do appear to focus attention on climate change from time to time.

..."

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

39.         The law and practice of EU and other EEA Member States as well as former Member States of the EU is relevant - potentially 30 countries excluding Ireland.  RTÉ obtained information from other European Broadcasting Union (EBU) members in February 2024 on practice, and with some updates and adding the UK, it shows that most countries do not treat public broadcasters as public authorities under the Directive.  The current position insofar as information available to the referring court indicates is as follows.  Note that Demark is divided in two on the basis that one public broadcaster appears to be regarded as within the definition and another one is not.  The total applicability of Directive 2003/4 in this table is EU 27 + 3 other EEA + 1 former EU Member State (UK) minus Ireland (position to be determined in these proceedings) = 30.

 

	EU/ other EEA Member States/ former Member State	Number of states
States where available information indicates an understanding that a public service broadcaster is not treated as a public authority	Austria, Bulgaria, Czech Republic  Denmark (TV2), Estonia, Finland, France, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg Netherlands, Poland, Romania, Slovakia, Spain, Sweden United Kingdom	19.5
Countries where available information indicates an understanding that a public service broadcaster is treated as a public authority	Belgium Croatia Cyprus Denmark (DR) Germany Iceland Norway Portugal Slovenia	8.5
States in respect of which no information received	Liechtenstein Mata	2
Total		30

 

Facts in relation to the request

40.         A request for access to information was made by Mr Ken Foxe of Right to Know CLG on 19 July 2021.  The following categories of documents were sought:

                    (i)        Copies of any guidance, training or other such advice issued to RTÉ journalists on how to communicate/cover climate change to audience, with this part of the request to cover the period from 1 January 2020 to the date of receipt of the request, being 19 July 2021.

                   (ii)        A record of how many representations RTÉ received regarding its coverage of climate change from 1 January 2020 to 19 July 2021.

                 (iii)        A copy of all representations or correspondence received by RTÉ relating to their coverage of climate change issues in 2021.  In respect of this category, Mr Foxe indicated that he would accept a representative sample of roughly 25 items of correspondence should there be a large volume of correspondence.

41.         Insofar as concerns category (i), copies of any guidance, training or other such advice issued to RTÉ journalists on how to communicate/cover climate change to audience, with this part of the request to cover the period from 1 January 2020 to the date of receipt of the request, being 19 July 2021, no basis has been shown in the main proceedings to date to conclude that this may relate to privileged journalistic activity.

42.         Insofar as concerns category (ii), a record of how many representations RTÉ received regarding its coverage of climate change from 1 January 2020 to 19 July 2021, no basis has been shown in the main proceedings to date to conclude that this may relate to privileged journalistic activity.

43.         Insofar as concerns category (iii), a copy of all representations or correspondence received by RTÉ relating to their coverage of climate change issues in 2021, an examination of these documents would be required and findings made as to whether they involve journalistic privilege, if that were to be an issue.  In respect of this category, Mr Foxe indicated that he would accept a representative sample of roughly 25 items of correspondence should there be a large volume of correspondence.

44.         The referring court accepts Mr Foxe's averment that the request was not intended to impinge on journalistic freedom.  Whether a request actually so impinges would be a matter for decision in adjudicating on any specific request.

45.         The referring court accepts Mr Dowling's evidence that RTÉ does not have a record (that is, as a stand-alone document) of the number of representations received by it regarding its coverage of climate change in 2020 or 2021.  The referring court accepts his evidence that the creation of such a record would require extensive work by RTÉ.  Whether that amounts to a disproportionate burden is a matter for evaluative judgement if that arises.

46.         On the same basis the referring court accepts his evidence as follows:

"41.      In this context, it can be noted that RTÉ receives a multiplicity of representations on a wide range of issues, including some made in respect of issues relating to climate change.  There is no single unit to which representations on individual issues such a climate change are directed.  RTÉ encourages people to contact programmes directly, which many do on a daily basis.  In addition, people also get in contact with their views via [email protected] and [email protected], which are managed by the Information Office.  People can, and do, contact individual reporters, programme makers and senior executives such as the Head of News and Current Affairs and the Director General with their views on a wide range of issues.

42.       Therefore, there are a wide range of individuals, programmes and sections which potentially receive representations on climate change.  This includes the newsroom, individual programmes on television and radio, individual staff in both editorial and corporate divisions.  This demonstrates the difficulty in creating a single record which identifies the number of representations received by RTÉ on any single topic.  To be in a position to create an accurate record, it would be necessary to engage with every individual who may have received such representation to try to ascertain whether they held any records or information which fell within the scope of the request.

43.       This would involve engagement with many hundreds of individuals and would require a review of each of their email inboxes, along with any hard copy correspondence, including journalists notes and notebooks retained by them.  It would also require a close review of the contents of any representations to identify whether they addressed issues relating to climate change, irrespective of whether that term was used or not.  Further, as noted to the Commissioner, this process would be impacted by the fact that in 2021 RTÉ changed its computer operating system, a change which included the deletion of non-essential records.

44.       This exercise would be required to be carried out simply for the purpose of creating a record of the number of representations received in respect of climate change.  It would then be necessary to carry out a separate review of each representation to identify whether it is subject to disclosure or comes within one of the exemptions in the [2007] regulations.  This would require the use of significant resources and would be disruptive to the core functions of RTÉ.

45.       The difficulties in collating records which fall within the scope of the request made is illustrated by the exercise completed by  RTÉ for the purpose of releasing a sample of representations to Right to Know.  It was explained to the Commissioner that in order to try to identify representations which were made to RTÉ on the issue of climate change, the Information Office was asked to carry out a review of the two operating email accounts which allow anyone to contact RTÉ.  A search of those email inboxes using the phrase 'climate change' resulted in a total of 614 emails being captured.  For the purposes of releasing a sample of representations to Right to Know,  40 emails were randomly selected and a sample were released from that sub-set.

46.       This demonstrates the volume of records which could be generated if it was necessary to extend the searches to any person or programme who may have received a representation in respect of climate change.  As noted above, all of those records would then have to be reviewed to confirm whether the representation was, in fact, relating to climate change and, if so, whether it was subject to any exemption.  As set out in the previous paragraph, the search that was done was only conducted using one search term.  If additional search terms were used, it would inevitably result in further records being returned, thus increasing the scope of the review exercise."

47.         In order to identify records, RTÉ carried out searches of inboxes associated with two email addresses, which are the main avenues to contact RTÉ, and of the telephone log of the information office, using the search term "climate change".

48.         By decision dated 17 August 2021, RTÉ made an initial decision, authored by Mr Dowling, who replied to Mr Foxe, indicating that RTÉ did not have any documents in the first two categories.  In respect of the third category, RTÉ released a number of documents but noted that this was not done in furtherance of any particular legal duty, and indicated that this was a pragmatic decision taken by RTÉ and not intended to create any precedent.  RTÉ reserved its rights in respect of all issues concerning the application of the 2007 regulations.  

49.         The records released by RTÉ were a sample of documents which fell within paragraph (c) of the request made by Right to Know, with personal information redacted.  They were not a "representative" sample because to determine whether a sample was representative would require a knowledge of the entire group from which representatives were selected.

50.         By email dated 17 August 2021, Mr Foxe sought a review of the initial RTÉ decision.  In respect of the categories, Mr Foxe's response was as follows:

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

                   (ii)        in relation to Category 2, Mr Foxe contended that the 2007 regulations do not require a requester to seek records, and that, in his opinion, RTÉ could provide the requested information "with a minimum of effort"; and

                 (iii)        finally, in relation to Category 3, Mr Foxe argued that redactions had been made to the records "with no detailed explanation or justification of why this has happened".

51.         An internal review of the decision was carried out by Ms Eleanor Bleahene.  By decision dated 14 September 2021, Ms Bleahene upheld the decision on the second and third categories, concluding that the information that came within the third category was not environmental information.

52.         On 29 September 2021, Right to Know lodged an appeal against the decision of RTÉ with the commissioner pursuant to Article 12 of the 2007 regulations.

53.         By email dated 12 October 2021, the commissioner informed RTÉ that the commissioner had accepted the appeal from Mr Foxe and requested certain information and submissions from RTÉ.

54.         By email of 10 November 2021, RTÉ provided a submission to the commissioner in respect of the appeal.  The submission contended, inter alia, that RTÉ is not a public authority within the meaning of Article 3 of the 2007 regulations. 

55.         Also by emails of 10 November 2021, RTÉ provided the commissioner with a copy of the records which had been released to Right to Know.  Initially, redacted versions of the records were sent and subsequently un-redacted versions of the records were provided to the commissioner.

56.         By letter dated 5 December 2022, an official of the Office of the commissioner wrote to RTÉ indicating that she had been assigned to the appeal as investigator.  The official of the commissioner further raised queries, in respect of which any further submissions were to be filed by 19 December 2022.  The relevant queries are the first five:

                    (i)        whether RTÉ wished to maintain the same position in respect of its argument that it was not a public authority within the meaning of the 2007 regulations as advanced in OCE-108819-S8Z3Y7;

                   (ii)        similarly, the official of the commissioner queried whether RTÉ was adopting the same position as in OCE-108819-S8Z3Y7 in respect of whether the information sought constituted environmental information within the meaning of the 2007 regulations;

                 (iii)        what steps would be required of RTÉ to provide an estimate of the number of representations received by RTÉ in the timeframe specified;

                 (iv)        what steps were taken by RTÉ to identify whether information within the scope of part (b) of the request were held by it; and

                  (v)        the official of the commissioner noted that the commissioner had considered the meaning of "material form" in the 2007 regulations in OCE-109706-Y8Y0V3 (Logue & An Bord Pleanála) and queried whether RTÉ had any further comments to make in that respect.

57.         Following correspondence between Mr Dowling and the official of the commissioner, on 15 December 2022 and 16 December 2022, the deadline for RTÉ to file submissions was extended to 19 January 2023.  RTÉ filed submissions in respect of the appeal on 19 January 2023. 

58.         Subsequently, the commissioner delivered a written decision dated 30 November 2023.  The decision was notified to RTÉ on 1 December 2023. 

59.         The decision itself summarises the outcome as follows:

"Issue: Whether (i) RTÉ is a public authority within the meaning of the [2007] regulations; (ii) the information requested is 'environmental information' within the meaning of the Regulations; and (iii) article 9(2)(a) of the Regulations provides grounds for refusal of the request.

Summary of Commissioner's Decision: The Commissioner found that (i) RTÉ is a public authority within the meaning of the [2007] regulations; (ii) the information requested is 'environmental information' within the meaning of the Regulations; and (iii) article 9(2)(a) of the Regulations does not provide grounds for refusal of the request."

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

                    (i)        A previous decision of the commissioner which addressed the question of whether RTÉ is a public authority.  That decision issued in June 2022 under reference OCE-108819-S8Z3Y7, made on remittal following the decision in Right to Know CLG v. Commissioner for Environmental Information and RTÉ [2021] IEHC 353 referred to above.  The commissioner determined that RTÉ was a public authority within the meaning of each of paragraphs (a), (b) and (c) of the definition of environmental information.  This decision was not appealed by RTÉ for various reasons (RTÉ did not so object initially, plus the information had been released anyway so the matter was moot).  But that does not prevent RTÉ from making the objection in the present case.

                    (i)        Another pending appeal which has not yet been determined by the commissioner –reference number OCE-111364-K0R7J3.  In that context RTÉ disputed whether it was a public authority - something which prompted the commissioner to consider that in the OCE-108819-S8Z3Y7 matter.

                   (ii)        There are four other pending appeals where this issue arises which are currently pending before the commissioner.

61.         It is also relevant to RTÉ's objections to the commissioner seeing prima facie privileged material that in another case, the commissioner insisted on seeing papers even though prima facie they were privileged - in that case requests for legal advice - see paragraph 15 of Mr X and Forestry Appeals Committee OCE-144739-W3Z9K6 (https://ocei.ie/en/ombudsman-decision/bcc91-mr-x-and-forestry-appeals-committee/).

Procedural history

62.         The appeal was lodged in the referring court on 30 January 2024 and was first listed before the court on 12 February 2024.

63.         The matter was heard on 13 and 14 November 2024.  It was then adjourned for further evidence and submissions.  On 27 January 2025 the EBU was joined as a notice party.  Subsequently, relevant State respondents were also joined as notice parties. 

64.         The referring court decided that the main proceedings involved questions of the interpretation of European law which were necessary to enable it to make a decision on the matter, and that it was appropriate in the circumstances to refer these to the CJEU.  In those circumstances the referring court is staying the proceedings and referring the questions below to the Court of Justice for a preliminary ruling.

The first question

65.         The first question is:

Does the definition of "public authority" in Article 2(2)(a) of Directive 2003/4 have the effect that a legal person governed by public law and amenable to judicial review which has been set up by the State through statute law, which the State alone can dissolve, but having as its primary purpose broadcasting, journalism, editorial processes and decision-making and/or the pursuit of the right of free expression, and which is publicly appointed and accountable but is independent in its functions and funded by both commercial revenue and public monies:

                         (a)        is to be treated as a public authority in respect of all of its functions;

                         (b)        is to be treated as a public authority in respect of its functions other than privileged journalistic activity such as interaction with sources and functions capable of affecting the privilege associated with such activity such as internal editorial communications concerning sources;

                          (c)        is to be treated as a public authority in respect of its functions other than those concerning broadcasting, journalism, editorial processes and decision-making and/or the pursuit of the right of free expression; or

                         (d)        is not to be treated as a public authority?

66.         RTÉ's proposed answer is that RTÉ (which is a legal person having its primary purpose of broadcasting, journalism and editorial processes and decision making and/or the pursuit of the right of free expression) is not a public authority in respect of any of its functions. Without prejudice to the foregoing, if RTÉ is to be treated as a public authority in respect of any of its functions, that must be limited to functions other than those concerning broadcasting, journalism, editorial processes and decision-making and/or the pursuit of the right of free expression.

67.         The commissioner's proposed answer is that applying the test in the judgment of 19 December 2013, Fish Legal and Emily Shirley v Information Commissioner and Others, C-279/12 ECLI:EU:C:2013:853 (Grand Chamber), it is clear that such a body is a public authority as per option (a); options (b) and (c) have not textual support in the Directive.

68.         Right to Know's proposed answer is that the definition of "public authority" in Article 2(2)(a) of Directive 2003/4 has the effect that a legal person governed by public law and amenable to judicial review which has been set up by the State through statute law, which the State alone can dissolve, but having as its primary purpose broadcasting, journalism, editorial processes and decision-making and/or the pursuit of the right of free expression, and which is publicly appointed and accountable but is independent in its functions and funded by both commercial revenue and public monies is to be treated as a public authority in respect of all of its functions.

69.         The State's proposed answer is that it is noted that the question is limited to a consideration of "Public Authority" as defined in Article 2(2)(a) of Directive 2003/4, i.e. "government or other public administration, including public advisory bodies, at national, regional or local level", and consider that a public broadcaster which, by operation of statute, is wholly independent of the government in the pursuance of its objects, is not a "government or other public administration" within the meaning of Article 2(2)(a), notwithstanding that the public broadcaster is governed by public law, is amenable to judicial review, has been set up by the State through statute law, is capable of being dissolved by the State alone, is publicly appointed and accountable, and is in part funded by public monies.

70.         The referring court's proposed answer is that the question should be answered in sense (b).  A body such as the one at hand clearly has mixed features which separate it from public administration (principally that it is wholly independent of government) but on the other hand bring it within public law (it is established by, and can only be dissolved by, statute law).  The way in which these conflicting features can be resolved in the special case of a body that enjoys the rights of media freedom but that nonetheless also enjoys a significant role by virtue of public law is to regard it as in principle being a public body but subject to an implied exception in relation to its core media functions as described in sense (b).

71.         The relevance of this question is that if the answer is (a), then the commissioner's conclusion on that issue is correct; if the answer is (b), (c) or (d), then the decision would be set aside and the requested information would require to be examined by reference to the appropriate test.

The second question

72.         The second question is:

If the answer to the first question is in a sense equivalent to (a) or (b) in that question, does the definition of "environmental information" in Article 2(1) of Directive 2003/4 and in particular the term "material form" have the effect that where a request is made seeking information as to the number of records of a particular type, the public body concerned is required to count the number of such records and create a record of that number embodying the requested information in material form, if the information does not otherwise exist in material form apart from the extent to which it is capable of being extrapolated by counting the records concerned?

73.         RTÉ's proposed answer is that the answer to the first question is that RTÉ is not a public authority and consequently this question does not arise for consideration.  Without prejudice to the foregoing, a public authority is not required to create any records (or information) for the purpose of responding to a request for access to environmental information where that record (or information) does not already exist.

74.         The commissioner's proposed answer is that the counting of records and creation of a document setting out the results in dealing with any request under the domestic regulations transposing Directive 2003/4 is nothing more than a consequence of the right of access.  It may be noted that it is also an implementation of the best practice guidelines of creating a schedule of records setting out the number and nature of the records in the case, as per paragraph 7.18 of the Code of Practice for Freedom of Information for Public Bodies issued by the Department of Public Expenditure and Reform (https://foi.gov.ie/download/foi-code-of-practice/).

75.         Right to Know's proposed answer is that the definition of "environmental information" in Article 2(1) of Directive 2003/4 and in particular the term "material form" has the effect that where a request is made seeking information as to the number of records of a particular type, the public body concerned is required to count the number of such records and create a record of that number embodying the requested information in material form, if the information does not otherwise exist in material form apart from the extent to which it is capable of being extrapolated by counting the records concerned.

76.         The State's proposed answer is that the definition of "environmental information" in Article 2(1) of Directive 2003/4, having particular regard to the term "in material form", cannot be interpreted as imposing an obligation on public bodies to create a record in material form which documents information sought in an application made pursuant to the Directive in circumstances where the information sought does not otherwise exist in material form as where there is no record in material form of the information sought, that request is not a request for "environmental information" for the purposes of the Directive; and the State parties consider that this is so regardless of extent to which effort would have to be expended in creating the record of information in material form, even in circumstances where all that would be required to comply with a request is the counting and recording of the number of records of a particular type.

77.         The referring court's proposed answer is No.  The referring court agrees with RTÉ that the Directive does not require a public authority to create a record that does not otherwise exist.  The referring court agrees in particular with the State that this is so regardless of extent to which effort would have to be expended in creating the record of information in material form, even in circumstances where all that would be required to comply with a request is the counting and recording of the number of records of a particular type.  Such an interpretation would create a significant new obligation not to be found in the Directive.

78.         The relevance of this question is that subject to the previous question, if the answer is yes, the commissioner's decision would be upheld on this point whereas if the answer is no, it will be set aside at least to that extent in the main proceedings.

The third question

79.         The third question is:

Does Article 6(1) and/or (2) of Directive 2003/4 and/or Article 9(1) and/or (4) of the Aarhus Convention and/or Article 47 of the EU Charter of Fundamental Rights insofar as the foregoing relate to the requirement that remedies be timely and/or expeditious and/or effective have the effect that a court acting under Article 6(2) of Directive 2003/4 and/or Article 9(1) and/or (4) of the Aarhus Convention and/or Article 47 of the EU Charter of Fundamental Rights is entitled or required to interpret national law to the maximum extent possible (and/or to disapply any national rule of procedure that would preclude such a course of action) so as to enable the court to make a final decision on the request to which the review procedure or judicial procedure relates, including by coming to findings of fact and evaluative judgements after making a full and ex nunc examination of all the relevant elements of fact and law submitted by the parties, in circumstances where remittal of the matter to the public body or to a subordinate review body for further fact-finding or evaluative judgements or a fresh decision would be likely in the view of the court to occasion further delay which could jeopardise the timely and/or expeditious finalisation of the outcome of the request for information?

80.         RTÉ's proposed answer is that the answer to the first question is that RTÉ is not a public authority and consequently this question does not arise for consideration.  Without prejudice to the foregoing, a request for access to environmental information is to be determined in accordance with the 2007 regulations as amended which transpose the obligations arising from Directive 2003/4.  The regulations do not provide for the High Court to determine requests for access to environmental information in the manner envisaged in the question.  RTÉ has not brought any challenge to the validity of the Regulations and makes no argument that there has been a failure to transpose any part of the Directive.  Without prejudice to the foregoing, Article 6 of the Directive does not require a judicial body exercising an appellate jurisdiction from an independent, administrative body tasked with hearing appeals against decisions of public authorities to be granted the powers to determine the requests for environmental information in the manner envisaged by the Question.

81.         The commissioner's proposed answer is that there is no requirement in European law that requires the High Court to make a determination on access to records of the sort envisaged in the circumstances described.  Given the nature of the powers and resources of the commissioner, this is best done by the commissioner.  This is especially the case where efficiencies gained by the High Court exercising this power would be negated by parties negatively affected by a finding having to appeal the decision to the Court of Appeal or Supreme Court, with the associated costs and delays.

82.         Right to Know's proposed answer is Article 6(1) and/or (2) of the Directive 2003/4 and/or Article 9(1) and/or (4) of the Aarhus Convention and/or Article 47 of the EU Charter of Fundamental Rights insofar as the foregoing relate to the requirement that remedies be timely and/or expeditious has the effect that a national review body and/or a court acting under Article 6(2) of the Directive 2003/4 and/or Article 9(1) and/or (4) of the Aarhus Convention and/or Article 47 of the EU Charter of Fundamental Rights is entitled or required to interpret national law to the maximum extent possible to enable it to make a final decision on the request to which the review procedure or judicial procedure as the case may be relates, if necessary by making findings of fact and evaluative judgements in relation to the request in the light of circumstances in being as of the date on which the body or court is seized of the matter, in circumstances where remittal of the matter for either further fact-finding or a fresh decision would be likely to occasion further delay which would contravene EU law by failing to ensure an outcome to the request for information in a manner that was timely and/or expeditious.

83.         The State's proposed answer is that the requirement that remedies be timely and/or expeditious, whether pursuant to Article 6(1) and/or Article 6(2) of Directive 2003/4;  Article 9(1) and/or Article 9(4) of the Aarhus Convention; and/or  Article 47 of the EU Charter of Fundamental Rights, does not have the effect that a national review body and/or a court acting under Article 6(2) of Directive 2003/4; Article 9(1) and/or Article 9(4) of the Aarhus Convention; and/or Article 47 of the EU Charter of Fundamental Rights is entitled or required to interpret national law such as to enable it to make a final decision on the request to which the review procedure or judicial procedure as the case may be relates; and that this is so even in circumstances where remittal of the matter for either further fact-finding or a fresh decision is likely to result in additional time being expended consequent on the remittal.  For the avoidance of doubt, the State parties do not accept that additional time being expended consequent on an application pursuant to Directive 2003/4 being remitted would or would be likely to contravene EU law whether in the manner posited in the question, i.e. by failing to ensure an outcome to the request for information in a manner that is timely and/or expeditious, or at all.

84.         The referring court's proposed answer is Yes.  It is inherent in the very nature of a right to access to information that it must be effective in an expeditious manner, because information quickly becomes out-of-date and is significantly more meaningful to a requester and to the public generally when it is current.   A laborious procedure where all factual findings and evaluative judgements can only be made at first instance, and then appealed, so that remittal following legal clarifications is inevitable, would create a significant prospect of a breach of the requirement of expedition, which would be for the national court to determine on specific facts.  If the national court (or indeed, logically, a review body) were to come to the view that a remittal for further fact-finding or evaluation would cause delay in breach of this provision, then the court should be entitled to find the facts itself and/or make evaluative judgements, after making a full and ex nunc examination of all the relevant elements of fact and law submitted by the parties, even if (as here) a national rule of procedure would preclude it from doing so (the rule being the judgment of the Supreme Court in Raheenleagh, already referred to).  Such an answer would be a further example of the broader principle that a court can determine a matter itself if remittal would give rise to a breach of EU law, for example due to a previous failure to implement the court's judgment following a previous remittal: judgment of 29 July 2019, Alekszij Torubarov v Bevándorlási és Menekültügyi Hivatal, C-556/17, ECLI:EU:C:2019:62 (Grand Chamber).  That case illustrates the broader principle but does not exhaust it.  The commissioner's complaint that the court deciding the matter could give rise to possible appeal is illusory because such appeal can happen anyway, with the ultimate outcome being remittal to the commissioner for the process to begin again, rather than resulting in a final order.

85.         The relevance of this question is that, subject to RTÉ being a public authority for any relevant purpose, if the answer is no, any ruling of the CJEU would be required to be implemented by the referring court by way of remittal to the commissioner as opposed to the referring court finalising the matter itself.  There is a substantial prospect that the commissioner could then himself remit the matter to RTÉ for a fresh decision.  The overall process would by that stage be in its sixth year since the request for information was made, which in the view of the referring court involves a delay that seriously reduces the value of the information requested and would raise a substantial prospect that remittal would perpetuate an undue delay in breach of EU law.    If the answer is yes, the referring court would be in a position to exercise its full original jurisdiction to finalise the request itself in as timely manner as possible in such a situation having afforded a hearing to the parties and as appropriate exercising the power to find facts and/or undertake evaluations for that purpose, setting aside any rule of domestic procedure that would ordinarily debar it from doing so.  Obviously that decision of the referring court could be appealed, but the outcome of the appeal would be a final order and not a remittal back to the commissioner for a fresh decision, with the potential for the process to begin anew and with the prospect of a potential fresh appeal to the referring court and then the domestic appellate courts.

Order

86.         For the foregoing reasons, it is ordered that:

                    (i)        the questions set out in this judgment be referred to the CJEU pursuant to Article 267 TFEU;

                   (ii)        the CJEU be requested to note that the parties have requested the referring court to inform the CJEU that the various natural persons named in this judgment do not wish their names to be anonymised for the purposes of the proceedings in the CJEU and therefore that they can be named by the CJEU including by way of the publication of materials or of the judgment of that court; and

                 (iii)        the substantive determination of the proceedings be adjourned pending the judgment of the CJEU, without prejudice to the determination of any appropriate procedural or interlocutory issues in the meantime.