Taoiseach wins appeal on State law primacy

THE TAOISEACH has won a High Court order overturning a decision by Ombudsman Emily O’Reilly in her additional official role as the Commissioner for Environmental Information.

Ms O’Reilly had ordered the release to a Dublin man of a document containing information of a 2003 Cabinet discussion of greenhouse gas emissions.

In an important judgment dealing with the relationship of EU law to national law, Mr Justice Iarfhlaith O’Neill found Ms O’Reilly had no jurisdiction to decide the effect of regulations, enacted here in 2007 to implement a 2003 EU directive guaranteeing public right of access to environmental information held by public authorities, was “at odds with the provisions and stated intent of the directive”.

That was for the courts to decide and he found no conflict between the regulations and the directive.

The proceedings arose from a March 2007 request for information from Gary Fitzgerald, Foley Street, Dublin, to the Department of the Taoiseach. He sought documents including minutes of meetings reporting Cabinet discussions on Ireland’s greenhouse gas emissions for 2002- 2007.

In May 2007, having received no substantive reply, Mr Fitzgerald told the department he was appealing to the commissioner. In June 2007, the department told Mr Fitzgerald it would release eight documents to him and withhold 18. The commissioner decided one of those 18 documents – number five – constituted a “report” of discussions at Cabinet on Ireland’s greenhouse gas emissions and directed its release.

The other 17 documents included memos, aides memoire, briefing notes and background material and were not at issue.

In refusing to release document number five, the Department of the Taoiseach argued it was a note of comments made at a meeting of the Government on June 24th, 2003, and was “specifically excluded from disclosure” by the Constitution and the 2007 regulations.

Article 10 of the European Commission (Access to Information on the Environment) Regulations 2007 prohibits disclosure of environmental information if it breaches the confidentiality of Cabinet discussions but the 2003 directive itself does not contain a similar express exclusion in regard to Cabinet confidentiality.

The commissioner had ordered disclosure of the document after she found the directive was framed to specifically exclude the refusal of a request on confidentiality-based grounds if that request related to information on emissions.

In a 58-page reserved judgment yesterday, Mr Justice O’Neill upheld the Taoiseach’s appeal against the commissioner’s decision.

Noting that his judgment could be appealed to the Supreme Court, the judge also exercised his discretion to refuse the commissioner’s application to refer to the European Court of Justice the issues of EU law which had arisen in the case.

The judge said the core issue was whether the commissioner was entitled to disapply Article 10 of the regulations and Article 28 of the Constitution (guaranteeing confidentiality of Cabinet discussions) so as to give direct effect to the directive, which did not contain a similar express exclusion in regard to cabinet confidentiality.

The commissioner did not have the requisite legal power to consider whether Article 10.2 of the 2007 regulations were inconsistent with other provisions of the directive as such issues could only be litigated in the High Court at first instance.

If the commissioner was entitled to disapply regulations, he said this would result in EU rights “enjoying a degree of procedural supremacy which not only far exceeds that available to similar actions based on national law but virtually eliminates procedural safeguards for rights and duties based on national law”.

While there was no doubt EU law must prevail where there is a conflict between an EU law and a national law, it was left to member states to determine procedures for the enforcement of EU law subject to the principles of equivalence and effectiveness, he added.

In transposing the directive in the regulations, this State was entitled to establish a procedure for dealing with claims for disclosure of environmental material and for refusals of same.

Mr Justice O’Neill ruled that discussions at Government meetings were “internal communications” within the meaning of article 4.1 (e) of the directive, meaning they may be exempt from disclosure.

He also ruled Article 8.b alone of the regulations applied to Government discussions, meaning they may also be exempt from disclosure.

Given those findings, there was no conflict between the disputed provisions of the regulations and the directive, he held.

Article 4 of the directive sets out discretionary exceptions to the requirement of disclosure and allows member states to refuse disclosure if the request concerns “internal communications, taking into account the public interest served by disclosure”.