Minister for Communications loses appeal on broadband report decision

A man who won the possibility of accessing a Government report on broadband after a court case has seen an appeal by the Minister for Communications dismissed by the Court of Appeal.

Along with the Commissioner for Environmental Information, the Minister had sought to overturn the earlier direction that Stephen Minch’s request to gain access to the report be reconsidered after initially being refused.

The Court of Appeal disagreed with the commissioner’s view that the report does not constitute “environmental information” within the meaning of regulations enacted here in 2007 to give effect to the 2003 EC directive on public access to environmental information.

Mr Minch had challenged the commissioner’s December 2014 refusal to release the broadband report on the options available to the Government to achieve generalised roll-out of high-speed broadband within the State.

It was prepared for the Department of Communications by consultants Analysis Mason and described as an economic analysis of the options available. It considered two options to achieve the objectives of the National Broadband Plan (NBP) – whether broadband would be made available by wireless or wired mode.

After the department refused to release the report to Mr Minch on the grounds it was not environmental information, he appealed to the commissioner who rejected his request for the same reason.

After he successfully challenged the commissioner's decision in the High Court, the commissioner and the Minister for Communications appealed.

On Friday, a three-judge Court of Appeal dismissed the appeal.

Judgment

Mr Justice Gerard Hogan, giving the court's judgment, held that the report amounted to information "on" an economic analysis or analyses used in the framework of a measure – the NBP – which itself affected, or was likely to affect, the environment.

He disagreed with the commissioner’s view the NBP was a high-level strategy document with many variables and that the link between it and the environment was “too remote”. It was “hard to deny” that actions proposed in the NBP, including road openings for fibre, were likely to affect the environment, he said.

On the assumption the report provided an economic analysis used in the preparation of the NBP, it followed the broadband plan constituted environmental information and the commissioner erred in concluding otherwise, he said.

It followed the report constituted environmental information within the meaning of article 3.1.e of the 2007 regulations, he ruled.

The judge stressed his decision was subject to one important caveat – that economic analyses in the broadband report were used in the NBP.

Because the commissioner does not appear to have made an express finding that the economic analyses in the report were used in the NBP, he would favour remitting that issue to the commissioner to make appropriate findings of fact, he said.

If the commissioner held the analyses were used in the NDP, he should direct the report was environmental information, he added.

The precise form of the order arising from the judgment will be finalised later after the parties have considered the judgment.