Bid to overturn direction on man’s access to broadband report fails

The Minister for Communications and the Commissioner for Environmental Information have lost their bid to overturn a direction that the commissioner reconsider a man’s request for access to a government report on the rollout of next-generation broadband.

The Court of Appeal disagreed with the commissioner’s view 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.

Stephen Minch had challenged the commissioner’s December 2014 refusal to release a report on the options available to the Government to achieve generalised rollout 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) – broadband would be made available by wireless or wired mode.

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

Minister for Communications

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.

Mr Justice Gerard Hogan, giving the court’s judgment, held 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, are 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 NBP 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 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.