*Sharp intake of breath*. *Sups tea* So. Today @RightToKnowIE received judgment in its first right to information case. 1/
the case was NOT concerned with the Freedom of Information Act 2014, nor can it be related to FOI. It is a case concerned with the Access to Information on the Environment (AIE) Regulations 2007 - 2014
AIE is a bit like FOI, bit it is a different legal regime, that stems from an EU Directive, that itself stems from international law - the Aarhus Convention. Here is the full text of the Convention (it actually is worth a read!) unece.org/fileadmin/DAM/…
AIE gives citizens rights to seek *environmental* information, under a relatively broad framework of what bodies are required to answer requests, and a broad definition of what environmental information is
So, in this case, we sought information from the Department of An Taoiseach concerning Cabinet *discussions* of climate change, ie records that relate to those discussions. We think climate change is an important issue 
The Department wrote back with this, refusing us access to 31 records that show what was discussed at Cabinet on this issue.
The issue arises: an earlier judgment (O'Neill) that refused a similar request and this part of the Irish Constitution, Article 28.4.3. Essentially in Ireland, what's said at Cabinet is secret.
Anyway, we appealed this decision to internal review within the Department. We made a number of points: namely
A key point here is: Can a Member State say that a Constitution comes before EU law? We said no, they can't. EU law is primary, when in conflict with national law. Along with the other points you see.
So anyways, we got an internal review, and this is what the Department said. Basically: yea, what the original decision maker said is correct. So no you're not getting those documents.
We had a choice here: appeal to the Commissioner for Environmental Information (where we *would* lose) or seek leave to a judicial review of the internal review decision. We pursued the latter.
Now: here are the grounds on which we appealed:
... more
and to my affidavit, excerpted here
For its part An Taoiseach (ie the Department), opposed us along the following grounds:
continued..
Now, I will skip all the quoting of statutes, and try to get to the TL;DR. Judge Faherty focusses in on some case law, starting with the NAMA Supreme Court decision (a case I was also involved in)
O'Donnell is talking about why Statutory Instruments are sometimes not ideal for implementing or transposing European Directives. Primary legislation (ie via the Dáil etc) might have been better
But.. the applicant (us), said
We pointed to some EU case law in relation to the emissions exemption (climate change involves emissions), Stichting and Bayer.
The Taoiseach countered:
but let's skip forward to Faherty's considerations. First point:
*BUT*
"I accept the applicant's submissions in this regard" 🙌
More case law we cited:
Importantly, Faherty also has regard to Krizan
"I am not persuaded by the respondents' submission" 🙌🙌
Where Faherty disagrees with O'Neill 🙌
"nothing... that immunises records of Government discussions from..."
"I find that I cannot agree with the Respondents' submissions.." 🙌🙌
Key bit... 🙌
This bit goes to the core of how public authorities *must* handle AIE requests. There *must* be a balancing exercise. Public interest must be weighed. For. Each. And. Every. Decision.
In our submissions to the Department, we made a list of things that should be weighed by the decision maker in this case.
"that refusal was not in accordance with the letter or spirit of the Directive" 🙌
" ..somehow immunising cabinet discussion from the rigors of the Directive". The balancing exercise must be carried out, obliged to have regard to the premise of the Directive.
"In all the circumstances, the applicant's challenge to the review decision on the grounds that it was not made in accordance with the State's EU law obligations is made out" 🙌🙌🙌🙌🙌
and... "be remitted for consideration *in accordance with the State's EU law obligations*" FTW. 🙌
So now the decision maker in the Department will have to decide on a new basis on access to Cabinet discussions. They may refuse again, but reasons must be given, and a balancing exercise carried out. And AFAICT they can't use the Constitution as a get out clause.
that or Taoiseach appeals and we leap frog Court of Appeal and go straight to Supreme Court. How would they rule on this issue? I think they'd agree with the High Court. / There endeth a lesson in AIE/ access to information / intersection of national and EU law.
also: *if* you support this type of work, you can participate by helping with our running costs: you can subscribe to us on annually recurring basis; €25/€50/€100/€500 per annum. righttoknow.ie/support-us/ 🙌😊 We are a company limited by guarantee.
you can read the judgment in full here (unapproved) thestory.ie/2018/06/01/jud…
