Case number: CEI/07/0005
"On 10 December 2008, the Department of An Taoiseach appealed this decision to the High Court. The judgment of O'Neill J was given on 4 June 2010 and found against the Commissioner.
Judgment of O’Neill J. delivered the 4th day of June 2010
The Commissioner appealed this to the Supreme Court. The appeal was subsequently withdrawn by the Commissioner in 2013, prior to hearing."
The Commissioner found that none of the relevant grounds of exemption listed in article 8 of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007) applied to the one document within the scope of the request and that the Department is not entitled to withhold the information sought. Specifically, the Commissioner found that the relevant article 8 exemptions were disapplied by virtue of the limitations on the operation of those exemptions provided for at article 10(1) - where a "request relates to information on emissions into the environment". The Commissioner also found that the purported restriction on the operation of article 10(1), which is provided for in article 10(2), did not apply as the latter provision is not in accordance with the provisions of Directive 2003/4/EC [2003] OJ L 41/26 at Article 4, paragraph 2. [Article 10(2) purports to disapply article 10(1) in a case where the information sought refers to discussions at a meeting of the Government.]
On 30 March 2007, Mr Gary Fitzgerald requested environmental information from the Department of the Taoiseach under Directive 2003/4/EC. The request was for "any documents, including, but not limited to, minutes of meetings, that report Cabinet discussions on Ireland's greenhouse gas emissions" for the years 2002 to 2007 inclusive. By letter dated 14 May 2007 Mr Fitzgerald informed the Department that, as he had not received a substantive reply, he was appealing its refusal of his request. He pointed out that, since the making of his initial request, Directive 2003/4/EC had been transposed into Irish law through the European Communities (Access to Information on the Environment) Regulations 2007 (S.I .No 133 of 2007). The Department completed an internal review of the refusal and notified its decision to the requester on 13 June 2007. Its decision was to release eight documents and to withhold a further 18 documents. It is clear that the Department's internal review decision was taken by reference to the European Communities (Access to Information on the Environment) Regulations 2007 (the Regulations).
Following correspondence with my Office in relation to payment of the statutory fee under article 15(3) of the Regulations and in relation to the issue of jurisdiction, Mr Fitzgerald made an appeal to my Office on 2 October 2007. I exercised my discretion under article 12(4)(b) of the Regulations to accept the appeal which was made outside of the prescribed appeal period.
The Department refused access to 18 documents which it had identified as covered by the request. In conducting this appeal my Office took the view that, on a strict reading of the request as made, only one of the 18 documents could be regarded as constituting a "report" of discussion at Cabinet on Ireland's greenhouse gas emissions. Document No. 5, as identified by the Department, is a short note which records some discussion at Cabinet and the outcome of that discussion. The other 17 documents identified by the Department comprise memoranda, Aides Memoire, briefing notes and background material for the Government in relation to such issues as Emissions Trading Allocation, the Kyoto Protocol, the National Allocation Plan and the National Climate Change Strategy.
Normally, I would encourage public authorities to take a broad view of what might be covered by a request for environmental information and I recognise that, in this instance, the Department took such a broad view. Given that this is only the second appeal decision by my Office, and given the complexity of some of the issues which this case raises, I think it prudent to construe the original request on a strict basis. Mr Fitzgerald accepts that only one of the refused documents ( Document No. 5) meets this strict construction and that this appeal, accordingly, is confined to his right to access this document.
In its decision, the Department found that the document constitutes a record of the Government which is "specifically excluded from disclosure." It referred to Article 8 of the Regulations which, it said, "mandates" the Department not to make this information available. The Department also referred to section 19 of the Freedom of Information Act which, it said, "precludes" disclosure of the document.
In brief, the requester argues that his request relates to information on emissions into the environment and that, under the Directive, such a request must be granted. He argues that articles 3 and 4 of the Directive, which are relevant in this case, have direct effect and that they displace any provision of the Regulations which have the effect of contradicting the Directive's provisions.
Specifically, the requester argues that his request falls to be considered under provisions of the Directive which are directly effective by reference to the tests set down in Case 41-74 Van Duyn v Home Office [1974] ECR 01337. He says that Article 4(2) of the Directive clearly intends that Member States may not, by virtue inter alia of confidentiality provisions, refuse a request where the request relates to information on emissions into the environment.
The requester refers to article 8(b) of the Regulations which purports to provide that a public authority shall not make environmental information available "to the extent that it would involve the disclosure of discussions at one or more meetings of the Government, [which] is prohibited by Article 28 of the Constitution". The requester argues that one of the fundamental principles of EU law is that, where there is a clash between a directly effective EU measure and a domestic provision - even a constitutional provision- the directly effective EU law "wins''. In support of this position, Mr Fitzgerald cites European Court of Justice (ECJ) Case 6/64 Costa v E.N.E.L [1964] ECR 00585 and Case 11-70 Internationale Handelsgesellschaft [1970] ECR 1125. He states that article 8(b) and article 10(2) of the Regulations contradict the provisions of the Directive and must be disapplied by my Office.
On the question of jurisdiction, the requester contends that the ECJ has ruled "that administrative bodies should disapply national laws which conflict with EU laws".
The Department has made two submissions to my Office; each was made in the context that there were 18 separate documents at issue in this appeal. I am satisfied that the confining of this appeal to one record only ( Document No. 5), as explained above, is of no particular consequence in terms of the Department having an opportunity to make its case. In particular I note that in its initial response to my Office, dated 14 November 2007, the Department drew attention to Document No. 5 and stated that it is "a note of actual comments made at the meeting of the Government on 24th June 2003".
In its initial response to my Office, the Department relied on article 8(a)(iv) and article 8(b) of the Regulations. Article 8 of the Regulations carries the side heading: "Grounds that, subject to article 10, mandate a refusal". Article 8(a)(iv) purports to apply where disclosure of the information would adversely affect "the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts)". Article 8(b) purports to apply a mandatory exemption to environmental information where disclosure, "to the extent that it would involve the disclosure of discussions at one or more meetings of the Government, is prohibited by Article 28 of the Constitution".
In relation to article 8(a)(iv), the Department referred to section 19(2)(a) of the Freedom of Information Act which exempts from release under that Act a record which "contains the whole or a part of a statement made at a meeting of the Government, or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement".
In relation to article 8(b), the Department referred to article 28.4.3 of the Constitution which protects the confidentiality of discussions at meetings of the Government.
My investigator wrote to the Department outlining the requester's arguments to the effect that the Directive, in this case, does not allow for the refusal of environmental information where the information sought relates to emissions into the environment. She invited the Department to comment on this and on the argument that the relevant provisions of the Directive had direct effect. In its response of 29 January 2008, the Department said that it had sought the advice of the Attorney General's Office and of the Department of the Environment, Heritage and Local Government (DEHLG) on fundamental legal questions as to the vires of the Regulations raised by the requester. The Department reported that it had been advised by DEHLG that the "Regulations fully comply with and faithfully transpose the provisions of the Directive"; and it reported that it had been advised by the Attorney General's Office that the "Regulations are fully compatible with the Directive and that their implementation does not contravene or conflict with the requirements of the Directive in any way".
The Department drew attention to Article 4 of the Directive which, it said, gives discretion to Member States as to whether to exempt certain information from disclosure. According to the Department, Article 4 "qualifies such exemptions in terms of 'information on emissions' and the 'public interest test'". It said that article 10(1) of the Regulations, "in compliance with the Directive", sets out the situation regarding information on emissions and article 10(3) clarifies and applies the public interest test. The Department's position is that the application of article 10(2) of the Regulations "simply serves to confine the release of environmental information pertaining to emissions to 'factual information' with [article] 10(5) providing for such 'factual information' to be separated out from information pertaining to 'discussions'".
The Department explicitly rejects Mr Fitzgerald's argument that "the Regulations as drafted attempt to override the provisions of the Directive, and that in such circumstances it is the Directive that should be enforced in Ireland"; it contends that "the Regulations are fully compatible with the Directive". Furthermore, it argues that "it is the provisions of the ... Regulations that applicants, public bodies and the Commissioner for Environmental Information are required to observe in considering requests (and appeals) for environmental information".
For convenience, the key legal provisions identified by the parties as relevant to this appeal are set out below.
The Directive guarantees a right of access by the public to environmental information held by or for public authorities; the Directive also sets out "the basic terms and conditions of, and the practical arrangements for", the exercise of this right. The Directive has been given effect in Ireland by way of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007), made by the Minister for the Environment, Heritage and Local Government.
Article 4 of the Directive deals with exceptions to the requirement on public authorities to make available environmental information at the request of applicants. Paragraph 2 of article 4 states as follows:
"2. Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect:".
(a) the confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law;
(b) international relations, public security or national defence;
(c) the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature;
(d) the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy;
(e) intellectual property rights;
(f) the confidentiality of personal data and/or files relating to a natural person where that person has not connoted to the disclosure of the information to the public, where such confidentiality is provided by national or community law;
(g) the interests or protection of any person who supplied the information requested on a voluntary basis without being under, or capable of being put under, a legal obligation to do so, unless that person has consented to the release of the information concerned;
(h) the protection of the environment to which such information relates, such as the location of rare species.
The grounds for refusal mentioned in paragraphs 1 and 2 shall be interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal. Member States may not, by virtue of paragraph 2(a), (d), (f), (g) and (h), provide for a request to be refused where the request relates to information on emissions into the environment".
Article 8 of the Regulations carries the side heading: "Grounds that, subject to article 10, mandate a refusal". Article 8 includes among the grounds that, subject to article 10, "mandate a refusal" the following provisions:
"8. A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information -
(a) would adversely affect -
.... (iv) without prejudice to paragraph (b), the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts);
or
(b) to the extent that it would involve the disclosure of discussions at one or more meetings of the Government, is prohibited by Article 28 of the Constitution."
Article 8 is subject to article 10 which provides:
"10. (1) Notwithstanding articles 8 and 9(1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment..
(2) The reference in sub-article (1) to information on emissions into the environment does not include a reference to any discussions on the matter of such emissions at any meeting of the Government.
(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
(5) Nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information."
Article 14 of the Regulations provides that, in performing functions under the Regulations, public authorities "shall have regard to any guidelines published by the Minister". The Minister has published such guidelines and, to the extent relevant, I have had regard to these guidelines in the course of this appeal.
Article 28.4.3 of the Constitution states:
"The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter -
i. in the interests of the administration of justice by a Court, or
ii. by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or by a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance."
The FOI Acts are of potential relevance only in as much as they are referred to in the Regulations as one instance of confidentiality being protected by law - though it is relevant to note, as an aside, that any protection of confidentiality provided by the FOI Acts is confined to decisions made under FOI and does not constitute a legal protection for confidentiality in a general sense.
Article 8(a) of the Regulations as set out above includes within the confidentiality provisions the proceedings of public authorities which are protected under the FOI Acts. In this case, the Department refers to section 19 of the FOI Act, an exemption provision which is concerned with protection of "Meetings of the Government". The relevant provisions of section 19 may be summarised as follows:
- Section 19(1)(a) provides that a record shall be not be released pursuant to an FOI request where the record has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and was created for that purpose.
- Section 19(1)(b) provides that a record shall not be released pursuant to an FOI request where it is a record of the Government other than a record by which a decision of the Government is published to the general public by or on behalf of the Government.
- Section 19(1)(c) provides that a record shall be not be released pursuant to an FOI request where the record contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary to the Government or the Assistant Secretary to the Government for use by him or her primarily for the purpose of the transaction of any business of the government at a meeting of the Government.
- Section 19(2) provides for the mandatory refusal of a record which contains the whole or part of a statement made at a meeting of the Government, or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement and is not a record by which a decision of the Government is published to the general public by or on behalf of the Government.
- Section 19(3)(a) provides for the release of information that is contained in a record to which section 19(1) applies, "if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public".
- Section 19(6) provides that a record may be exempt under section 19(1) where it is a "preliminary or other draft of the whole or part of the material contained in the record". This provision also extends the definition of the phrase "decision of the Government" to include the noting or approving by the Government of a record submitted to it.
Following the FOI (Amendment) Act 2003, these are mandatory exemptions in the FOI context in that they are not subject to a public interest test.
The record in question, Document No. 5, is a short hand-written note which the Department has characterised as "a note of actual comments made at the meeting of the Government on 24th June 2003". I accept this as an accurate characterisation of the record. I accept that, in so far as it discloses the content of discussions at a meeting of the Government, Document No. 5 enjoys protection under article 28.4.3 of the Constitution. Therefore, it is clear that Document No. 5 comes within the ambit of article 8(b) of the Regulations and, on the face of it but subject to article 10 of the Regulations, is exempt from release.
Whether or not Document No. 5 also comes within the ambit of article 8(a)(iv) is of no great consequence in that, if the requester is correct in his argument, neither of the two article 8 grounds for refusal will apply. If he is not correct in his arguments, then any one of the two article 8 grounds relied upon by the Department will suffice to protect Document No. 5. However, I note in passing that the content of Document No. 5 includes a small amount of what, on the face of it, constitutes factual information.
It is clear from the provisions of the Directive and of the Regulations that a public authority is required to apply particular considerations in a case where the request relates to information on emissions into the environment. The grounds for refusal of a request, as set out in article 8 of the Regulations, are subject to article 10 of the Regulations which sets down certain restrictions on the application of these grounds for refusal in a case where the request relates to information on emissions into the environment. I note that, in its submissions to my Office, the Department did not take issue with my Office proceeding on the basis that the request relates to emissions. Nonetheless, I will consider whether the request, insofar as it covers Document 5, relates to information on emissions into the environment.
"Emissions" are not defined in the Regulations or in the Directive. However, the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) takes its definition of emissions from the Integrated Pollution and Control (IPPC) Directive 91/61/EC [1996] OJ L 257. Thus, "The Aarhus Convention: an Implementation Guide" [ECE/CEP/72] adopts the following definition of emissions: "direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources in the installation into the air, water or land."
Mr. Fitzgerald's request was for "any documents, including, but not limited to, minutes of meetings, that report Cabinet discussions on Ireland's greenhouse gas emissions" for the years 2002 to 2007 inclusive. Clearly, this is a request which relates to information on emissions into the environment. The fact that it is also a request for documents which report on Cabinet discussions does not change this fact. While I cannot give a full account of Document No. 5, I can say that a portion of it discloses factual information on emissions into the environment and that the remaining portion relates, in a more general sense, to information on emissions into the environment. As regards the term "relates", which is not defined in the Regulations or in the Directive, I am satisfied that it is intended as a wider category than discloses" or "contains". In taking this approach, I have regard to the judgment of O'Neill J. in EH v Information Commissioner [2001] I.E.H.C. 82, unreported, where he clarified the meaning of "relate" in the context of section 6(5)(b) of the Freedom of Information Act 1997, a provision which gives a right of access to pre-commencement records provided the records "relate to personal information about the person seeking access to them". O'Neill J. observed:
"As a starting point it seems to me to be absolutely clear from the use of the phrase 'relates to' that a document need not itself contain 'personal information' about the requester. ...
In my view the test to be applied to determine whether or not a record 'relates to' is ... 'whether there is a sufficiently substantial link between the requesters personal information (as defined in the Act) and the record in question'. I do not think one should go further than this in formulating a test in this regard."
For the avoidance of any doubt, I am satisfied that the record portion which discloses factual information on emissions into the environment also relates to information on emissions into the environment.
It is the requester's contention that the answer to this question is "YES"; and, if he is correct, this leads to the question of whether the Directive's provisions should be relied upon in circumstances where the Regulations are at odds with the Directive.
Article 3 of the Directive requires a public authority to make environmental information available on request. Article 4 of the Directive provides some grounds on which Member States may refuse to provide environmental information. These "exceptions" are divided into two broad categories: the paragraph 1 exceptions are administrative or procedural in nature (e.g. where a request is "manifestly unreasonable") and the paragraph 2 exceptions may, in broad terms, be classed as "harm based" (e.g. adverse effect on public security or defence). Both categories of refusal grounds are to be "interpreted in a restrictive way, taking into account for the particular case the public interest served by disclosure". While all of the grounds for refusal are subject to a public interest test, article 4 of the Directive provides that, "where the request relates to information on emissions into the environment", five of the eight "harm based" grounds of refusal may not be invoked. The five "harm based" grounds for refusal are those at paragraph 2(a), (d) (f), (g) and (h) of article 4. Of particular relevance here is paragraph 2(a) which provides the potential to refuse environmental information where disclosure would adversely affect "the confidentiality of proceedings of public authorities, where such confidentiality is protected by law".
It appears that the exception provisions of article 8(a)(iv) and 8(b) of the Regulations, both of which seek to protect the confidentiality of proceedings of public authorities and which are the refusal grounds being relied upon by the Department, derive from paragraph 2(a) of article 4 of the Directive. Article 10(1) of the Regulations restricts the operation of the exception provisions of article 8 of the Regulations in the case of requests which relate to information on emissions into the environment. To this extent, it transposes the equivalent provision at article 4 of the Directive and cannot be said to be in conflict with it.
However, the key question arising here is whether article 10(2) of the Regulations, which purports to restrict the application of article 10(1), accords with the Directive.
Article 10(2) of the Regulations qualifies article 10(1) by providing that the latter "does not include a reference to any discussions on the matter of such emissions at any meeting of the Government". The effect of article 10(2 is to disapply article 10(1) in the case of a record which refers to discussions, at any meeting of the Government, on emissions into the environment. The Department argues that, taken in conjunction with article 10(5) of the Regulations, this approach is perfectly compatible with the Directive. It says that the application of article 10(2) simply serves to confine release of environmental information which pertains to emissions to 'factual information". I do not accept that the Department is correct in this. I cannot find anything explicit or implicit in the Directive or in its objectives to support the making of exceptions for certain classes of information within the category described in paragraph 2(a) of Article 4 of the Directive. Neither can I find anything in the Directive which would allow a Member State to confine the exception to factual information as argued by the Department. While elements of paragraph 2 of article 4 of the Directive as transposed by article 9(1) of the Regulations (international relations, public security, national defence, the course of justice, intellectual property rights) do not attract the prohibition on refusal, I consider that the exception in paragraph 2(a) - the confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law - is definitely subject to it.
The Department has not brought to my attention any provision in the Directive or any case law which would support its approach to the application of paragraph 2(a) and the transposing of the provision so as to provide for the omission of certain categories of information from its prohibition. It appears to be suggesting that it is open to me to confine my consideration to the wording of the provisions of the Regulations. My view is that the option of applying the Regulations in isolation from the Directive is not one which is open to me.
I note that in Case C-392/96 Commission of the European Communities v Ireland [1999] ECR I-5901 the ECJ held that, in order to prove that the transposition of a directive is inadequate, it is not necessary to establish the actual effects of the legislation; it is the wording of the legislation which harbours the insufficiencies or defects of transposition. However, I accept entirely that transposition of a directive does not necessarily require that its content be reproduced verbatim in the national measure used to implement it. I understand that textual differences would not, of themselves, render parts of the Regulations incompatible with the Directive. In my consideration of whether there is a conflict between the Directive and the Regulations I am happy to adopt the "teleological principle" and interpret the relevant provisions in a manner which achieves the objectives of and gives effect to the overall purpose of the Directive. In Wicklow County Council, Fenton and Swalcliffe Ltd. [2002] 2 IR O'Sullivan J. held that if a principle of domestic law were to operate so as to run counter to the objectives of a Directive, then, in the absence of any other appropriate remedy, such principle must yield to the superior imperative of those objectives.
In relation to whether any other "appropriate remedy" exists which would allow the applicant to have access to the environmental information that he is seeking, I have been unable to identify an alternative means by which he could obtain the information. The 16th Recital to the Preamble to the Directive provides that the right to information means that disclosure should be the general rule and that public authorities should be permitted to refuse a request in specific and clearly defined terms. It says (as does Article 4) that grounds for refusal should be interpreted in a restrictive way.
While I have considered the purpose of and the provisions of the Directive as a whole, it is also necessary to focus in some detail on the purpose of the exceptions or potential refusal reasons provided for in Article 4(2). In doing this, I think it is reasonable to operate on the basis that the purpose of the exception for information which, if disclosed, would adversely affect the confidential proceedings of public bodies, was intended to apply equally to all Member States whatever the structure of their administration. Within Article 4(2) there are eight scenarios listed wherein Member States have discretion to provide for the refusal of requests where adverse affect arises in particular circumstances. For clarity, I list these again here:
"(a) the confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law;
(b) international relations, public security or national defence;
(c) the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature;
(d) the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy;
(e) intellectual property rights;
(f) the confidentiality of personal data and/or files relating to a natural person where that person has not connoted to the disclosure of the information to the public, where such confidentiality is provided by national or community law;
(g) the interests or protection of any person who supplied the information requested on a voluntary basis without being under, or capable of being put under, a legal obligation to do so, unless that person has consented to the release of the information concerned;
(h) the protection of the environment to which such information relates, such as the location of rare species."
Member States are explicitly prohibited from invoking paragraphs 2(a), (d), (f), (g) and (h) in order to refuse a request where the request relates to information on emissions into the environment. The scenarios unaffected by the prohibition on refusal where the request relates to information on emissions to the environment are international relations, public security, national defence, the course of justice and intellectual property rights. These scenarios represent "stand alone" situations whereas those in subparagraphs (a), (d), (f) and (g) of paragraph 2 are dependent on the concept of confidentiality. I note that the scenario at (h) does not involve confidentiality as such but I consider that this does not invalidate the argument. Clearly, the Directive was framed to specifically exclude the refusal of a request on confidentiality - based grounds where the request relates to information on emissions to the environment. It seems to me that this is indicative of a conscious decision that confidentiality - even confidentiality provided for by law - was not sufficient to displace the presumption that environmental information relating to emissions will be released. Thus, environmental information in cabinet discussions relating to such matters as security, defence or the course of justice may be withheld even where such information relates to emissions whereas a "blanket" prohibition on matters "confidential" is not envisaged by the Directive.
Overall, I conclude that the exceptions in the Directive are deliberately precise and defined so as to fulfil the objectives in Article 1 "to guarantee the right of access to environmental information held by or for public bodies and to set out the basic terms and conditions of, and practical arrangements for its exercise". I note in passing that only one "clarification" within the framework outlined is set out in paragraph 2 of Article. This applies to the scenario at 2(f) so that, in relation to the confidentiality of personal data, Member States are required to "ensure that the requirements of Directive 95/46/EC ....on the protection of individuals with regard to the processing of personal data and on the free movement of such data are complied with."
When all of the above is considered in the light of the requirement in Article 4(2) to interpret the grounds of refusal in a restrictive way taking into account for the particular case the public interest served by disclosure, I do not find it possible to interpret the Regulations so that article 10(2) of the Regulations is in conformity with the provisions and objectives of the Directive.
Following on from this conclusion, the next question is whether, as argued by Mr Fitzgerald, the Regulations should be set aside to the extent that they go beyond what is provided for in the Directive and, instead, reliance should be placed directly on the provisions of the Directive.
It does not appear to be in dispute that, in certain circumstances, a Directive or parts thereof can have direct effect in Member States. The requirements for direct effect are that the period for transposing the Directive must have expired, it must not have been transposed or must have been incorrectly transposed, its provisions must be unconditional, sufficiently precise and not subject to the taking of any further measures; it must confer a right on an individual as against a Member State (See Case 236/92 Comitato di Coordinamento per la Difesa della Cava and others v. Regione Lombardia and others [1994] ECR I-00483.)
The first requirement is satisfied in that the Directive was due to be implemented by Member States by 14 February 2005 and was transposed into Irish law by the Regulations which came into operation on 1 May 2007.
The second requirement, in my view, is also satisfied. This is because, as outlined in the preceding section of this decision, there is a restriction in the Regulations on the operation of article 4 of the Directive in a manner not provided for in the Directive. On this basis, and to this limited extent, I am satisfied that the Directive has been incorrectly transposed.
Paragraph 2 of Article 4 of the Directive prohibits Member States from providing for a request to be refused under the exception relating to confidentiality of the proceedings of public authorities where the request relates to information on emissions into the environment. The requirement is expressed in mandatory terms ("Member States may not... provide for a request to be refused where the request relates to information on emissions into the environment."). Once it is established that the exception is one of those listed which includes paragraph 2(a) of the Directive, it is not qualified by any conditions or requirements to take further measures. I consider that the third test is met.
In relation to the fourth element of the test, the individual right conferred is the right to access information on the environment held by or for public authorities. In this case, the public authority concerned is the Department of the Taoiseach and there can be no doubt but that a right against the Department constitutes a right against a Member State (Ireland). This individual right against a Member State is, I believe, also exercisable against my Office which, as the statutory adjudicator on the exercise of rights under the Directive, is an emanation of the State.
The ECJ has adopted a broad definition of "The State" for the purposes of giving application to direct effect. It has included "emanations of the State". In Case C-188/89 A. Foster and others v British Gas plc [1990] ECR I-03313 it was held that a Directive could be invoked against a body responsible for the provision of a public service under the control of the State. In Case C-249-81 Commission of the European Communities v Ireland [1982] ECR 04005, the ECJ held that the Irish Government had liability even though the "Buy Irish" campaign was run by the Irish Goods Council. Thus, provisions of a directive are effective as against public authorities implementing the Regulations. I take this to include my Office in its review of decisions made by public authorities under the Directive and the Regulations.
The Department has expressed the view that applicants, public bodies and my Office are bound to observe the provisions of the Regulations. However, I cannot ignore the situation set out above whereby the effect of the Regulations is at odds with the provisions, and stated intent, of the Directive. I have found useful a summary of the ECJ's position in regard to the primacy of Community Law in the Larsy case [Case C-118/00 Gervais Larsy v Institut national d'assurances sociales pour travailleurs independents (INASTI) ECR I - 05063 [2001]] where the Court set out its approach as follows:
"... the Court has held that any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent, even temporarily, community rules from having full force and effect are incompatible with those requirements, which are the very essence of Community law (Cases 106/77 Simmental [1978] ECR 629......C-213/89 Factorame and Others [1990] ECR 1-2433...)".
The Court went on to find that the public body involved (INASTI - a Belgian institution responsible for pensions) had breached Community law. It said "...to the extent that national procedural rules precluded effective protection of Mr Larsy's rights derived under the direct effect of Community law, INASTI should have disapplied those provisions."
The obligation to interpret national legislation in conformity with directives or the "harmonious interpretation principle" was set out in the 1984 case of Colson and Kamann v Land Nordrgein - Westfalen [1984] Case C- 14/83 ECR 1891. Furthermore, in the Henkel KGaA case [Case C-218/01 [2004] ECR 1-1725, the principle was held to apply to all competent authorities called upon to interpret and apply national law.
The Irish Courts would appear to have supported the view that the obligation to uphold community law applies to public bodies in the carrying out of their statutory functions. For instance, in Murphy v Telecom Éireann [1989] ILRM 53, Keane J. remitted a case to the Labour Court saying: "That tribunal in discharging its statutory function is as much bound to apply the law of the community as is this court".
I am conscious of the fact that while my Office is a creature of the Regulations, its creation arose from the "Access to justice" provisions set out at Article 6 of the Directive. Specifically, Article 6(2) of the Directive provides that "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 decision may become final." Having considered the matter, including the objectives of the Directive, I find that where a provision of the Directive is as clear and precise as the provision at issue here, I must exercise my functions in carrying out a review and proceed on the basis that the requirements of paragraph 2 of Article 4 of the Directive cannot properly be set aside by article 10(2) of the Regulations.
As will be clear from the above, I have arrived at this point only after careful consideration and after first examining whether it was possible to interpret the Regulations in a manner compatible and in conformity with the Directive. I realise that although the Directive has "direct effect", this does not necessarily mean that where there is conflict between it and the Regulations, I am bound to apply the Directive. In this context, I have had regard to Article 29.4.5 of the Constitution which states:
"No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities, or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State."
I am conscious that the effect of my decision, as set out below, is at odds with article 28.4.3 of Bunreacht na hÉireann which protects the confidentiality of discussions at meetings of the Government. Mr Fitzgerald has argued that it is a fundamental principle of EU law that "where there is a clash between a directly effective EU measure and a national law, of whatever formulation, the EU measure is supreme".
The Department has not pointed to any case law or other material which serves to negative this argument. Neither do my own enquiries and research suggest that Mr Fitzgerald's argument is incorrect.
My finding is that Mr Fitzgerald's request was a request for information relating to emissions into the environment and that the one relevant record - Document No. 5 - is one which relates to emissions into the environment. I find that the Directive (paragraph 2 of Article 4) prohibits Member States from providing for a request to be refused under the exception relating to the "confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law" where the request relates to information on such emissions. I find that the Department was not entitled to refuse access to Document No. 5. Therefore, it is not necessary for me to determine which parts of Document No. 5 constitute "factual information". Neither is it necessary for me to determine in accordance with article 10(3) and (4) of the Regulations whether, in the circumstances of this case, the information should be disclosed in the public interest.
In accordance with article 12(5) of the Regulations, I have reviewed the decision of the Department of the Taoiseach in this case. I hereby annul the Department's decision and direct that the one record at issue (Document No. 5) be made available to Mr Fitzgerald.
Under article 12(7) of the Regulations, the Department is obliged to comply with my decision "within three weeks after its receipt". Where a public authority fails to comply with my decision within that time, article 12(8) provides that I may apply to the High Court for an order directing compliance with that decision.