Thread by @gavinsblog

Good morning from the Palais des Nations in Geneva. Today @RightToKnowIE has a hearing on our complaint to the UN about Ireland's compliance with international treaty obligations.

Back in September 2016 we complained that Ireland was in breach of its Aarhus Convention obligations. This came about as a result of our extensive experience of using the Access to Information on the Environment (AIE) Regulations in Ireland (and partly connected to the NAMA case)

You can read some background here righttoknow.ie/2016/09/11/rig…

And read our filings in the case here unece.org/environmental-…

The hearing has just got underway, members of the ACCC are introducing themselves

Ireland team introducing themselves: Two officials from @Dept_CCAE. Rory Mulcahy SC and Aoife Carroll BL are representing Ireland / CSSO

And @RightToKnowIE is ably represented by @FPLogueLaw

@FredPLogue is reading his opening statement

At the core of our complaint is the duration of time it takes for appeals to the Commissioner for Environmental Information to be considered.

This is compounded by how appeals to the courts function, and how decisions are remitted.

You can read our original detailed complaint here: (PDF) . unece.org/fileadmin/DAM/…

Fred is now describing the AIE appeals process in Ireland.

There are no statutory time limits on appeals processes, so they can go on for a long time.

There are enormous issues with threshold decisions (is it environmental information or not? Is it a public authority or not?) This delays the entire process just on preliminary issues.

Fred has concluded his statement. Rory Mulcahy SC is now commencing his statement.

Ireland's position is that there is no evidence to say there is a problem with the review procedures.

AIE appeals are more complex. Recourse to the courts is "rarely required"

Mr Mulcahy is focussing on parsing our complaint. Argues there's no evidence and/or the data suggests the opposite of what we claim.

"False proposition" that the public can only get information via AIE.

Now stating that the timelines for appeals are falling year on year

"No evidence of systemic failure" Mulcahy SC concludes. Now to questions.

Peter Oliver is now intervening (he is the curator of our case).

Refers to C/93 Norway. A recent decision of the Compliance Committee. This case dealt with appropriate timescales in courts.

This is the case he is talking about unece.org/fileadmin/DAM/…

Fred now responding

Discussing the timeliness issue. Mentions the Minch case (re the National Broadband Plan)

Mulcahy SC arguing that we are complaining about *too many* review procedures.

Says Ireland compares favourably to the Norway case "and we're getting better"

Peter Oliver responds: pointing to the OCEI's own guidelines on how priorities are set for cases.

Points out that the guidelines discuss appear to differentiate cases (and maybe should not do so).

Jerzy Jendroska (Poland) now has a question

Asking if all steps are mandatory in order to reach the next step. Or is it like the EU where you can go to court OR go to the ombudsman. Mulcahy answers that each step is mandatory.

Now the chair has a question: Points back to the guidelines. Is it the view of Ireland that some appeals *don't* have to be expeditious?

Mulcahy argues that timely is not prescriptive, must be understood in context.

Fred Logue: facility does not exist so there's no point in asking. Mulcahy: commissioner is required to have regard to timelines.

Alexander Kodzhabashev (Bulgaria) has a question to Ireland; the OCEI does not need a long time to decide if or if not something is a public authority, surely?

Back to Peter Oliver: Why is there an indicative time limit for FOI appeals to be processed, but not for AIE?

Talking about equivalence: Procedure for enforcing EU law must not be less favourable than equivalent procedures that fall outside the scope of EU law.

Deadline set for FOI requests (indicative) and none at all for AIE. Emily O'Reilly (the previous commissioner) said in a prior affidavit that she prioritised FOI over AIE.

Mulcahy: I'm not sure the principle of equivalence would come into play... Chair: The Convention has a rights-based approach.

Mulcahy: the regulations were introduced via SI. Giving effect to the EU directive, and do not go beyond it.

Fred: Doctrine of equivalence applies. It is a flaw in Ireland's implementation of the Regulations.

Peter Oliver: Of course we're dealing with the Convention here, not EU law. Now moving to jurisdictional point - mentions Fish Legal. Concept of public authority is a wide one. Concept of env information also wide.

One would have thought the number of cases would decline on these issues. One would expect these issues what not keeping coming up.

Chair: The issue of what is or is not a public authority doesn't really come up in other countries. Why is this an issue? Why is that so difficult?

Mulcahy: Mentions NAMA case: "there can be difficult cases"

Chair: This comes up repeatedly in Ireland.

Fred Logue: In any dispute there's a difference opinion. It's easy to solve. What is or is not a public authority can be decided in advance. Ireland has no list of public authoritise. Ireland has a very privatised economy, waste etc.

Ireland could define categories of what would fall in into the public authority definition. But it doesn't.

These disputes should be reducing over time, not increasing.

Jerzy Jendroska (Poland): Ireland is claiming complexity. If it's not the number of cases but the complexity. Poland has a time limit of 30 days for the admin court to make a decision, both FOI and Enviro. Somehow they manage. No less complex.

Peter Oliver: Turning to OCEI annual report for 2017. Page 83. here: ocei.ie/publications/a…

Oliver: How is the Office of the Irish President not a public authority?

Mulcahy: It's a Constitution thing (paraphrasing here!)

Fred: Office of the President is a @RightToKnowIE case. Ireland intervened by passing a new law by excluding the President explicitly.

Oliver" I would have thought the commissioner would find it easier and easier to solve these jurisdictional issues.

Oliver: In the CEI's 2013 report she said it would be preferable to have a single application system (for FOI / AIE). Are there two separate procedures?

Fred: The UK has an integrated procedure. to funnel requests into AIE/FOI/GDPR. Ireland does not have this integrated procedure.

Oliver: Would it not be good to have this integrated procedure?

Fred: Yes it would. There can be confusion among members of the public about how to many requests.

Oliver: it would not amount to non-compliance not to have this integrated approach. But it might be a good idea.

(Note: We suggested this to the Department of Public Expenditure (who are in charge of FOI) in 2013)

Chair: just a reflection. The committee has not made any finding. We have situations where things can complicate processes. From the Convention's perspective: This is a *rights* convention.

Fred: Rights require remedies. If the remedy is remitting it back to a public authority then it is working.

Jerzy Jendroska (Poland): Why not the integrated approach?

I am intervening now.

I intervened to say that I was a member of the FOI external working group. I recommended the integrated approach to handling requests. It was never implemented (DPER and DCCAE are lead bodies on FOI/AIE)

Oliver: where a court quashes a decision of a public body, can it issue a de novo decision. Fred: In competition cases yes IIRC. But not in AIE.

Chair: if the court quashes, what scope of discretion does the public body have?

Mulcahy: Mentions Minch process of appeals, and remitting.

Now a coffee break.

And what a view

And we're back. Jerzy Jendroska (Poland): asking about remedies and Article 9 (1) of the Convention. Is the OCEI procedure subject to Article 9 1 and 2. How would Ireland qualify the procedure?

Ireland: We consider it to be an independent body per the Convention under the first paragraph.

Fred Logue: We believe it's the second paragraph. The Commissioner is not a court of law, but doesn't have many procedural powers, (is not a court), no sworn evidence etc

Fred: @RightToKnowIE first par is more about a choice, like in the EU - remedy of Ombudsman or court.

Fred: OCEI can state a case to the High Court

Chair: is the other examples of this in Ireland?

Fred: Yes, OCI, Tax appeals can state a case to the High Court

Mulcahy: If you're unhappy on a point of law of the OCEI you can appeal to the High Court

A sort of technical discussion about the powers of the Commissioner...

Mulcahy: Ireland chose the remedy of the impartial body (OCEI) when it was established. Per par one of article 6.

Alexander Kodzhabashev (Bulgaria): asking @RightToKnowIE about how the system works. Fred: no conclusion can be drawn about the numbers of appeals. Very limited number of appeals by a small number of people (like us), but many deterred.

Chair asking @RightToKnowIE about our experience of AIE and OCEI appeals.

Fred: the OCEI procedures are hard to pin down, moving goalposts, PAs allowed to introduce new grounds during a process.

Fred: the entire process is ad hoc. The low number of appeals is indicative of the failure of the system, not the success of the system.

Attracta Uí Bhroin now intervening as an observer from @IrishEnvNet

Attracta Uí Bhroin voices strong support for @RightToKnowIE. Says appeals are not taken by eNGOs because of the delays involved in appeals.

Attracta Uí Bhroin: All of the reviews under 9(1) related to 9 (4). Things must be timely. No way a review of the OCEI can be considered adequate or effective.

Attracta Uí Bhroin: We cannot pay the fees necessary in Irish litigation. In an 8 week window during planning, what prospect to get the information under AIE. Not fit for purpose.

Attracta Uí Bhroin: no capacity to engage with debate on specific legislation because of delays in accessing information

Attracta Uí Bhroin: Ireland's implementation of the AIE Directive is not necessarily compliant with the Convention.

Attracta Uí Bhroin: Ireland does not feel there is a problem.

Now to concluding remarks from Ireland and @RightToKnowIE

Final points from @RightToKnowIE

It doesn't have to be like this.
It's open to Ireland to adapt its procedures so that people's rights are observed.
We main that because of delays in the OCEI, because of the snakes and ladders procedures, this propagates delays.

Final points from Ireland:

There is an improving situation at the OCEI. @RightToKnowIE is using false equivalences and making statements unsupported by evidence.

False connection between connecting information requests and public participation.

Ireland: requirements of the Convention are being met in substance. There is adequate remedies. No evidence of systemic failure.

Chair: If the finds non compliance it will make recommendations. They could go to the MoP. Or we could make recommendations and maybe Ireland could adopt without the MoP. (Ireland replies that it can't commit either way)

Chair: We will start considering our decision. You will hear from us - be sure about that.

And that concludes it folks, thanks for watching. Back to Ireland with me.

Shaking hands all round. If you support our work, please consider donating righttoknow.ie/support-us/