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The Taoiseach has won a High Court order overturning the
Commissioner for Environmental Information’s decision ordering
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
that Commissioner Emily O’Reilly had no jurisdiction to decide
the effect of regulations enacted here in 2007 to implement
a 2003 EU Directive guaranteeing a right of access by the
public to environmental information held by public authorities
and was "at odds with the provisions and stated intent of
the directive".
That issue was for the courts to decide and he found no conflict
between the regulations and the directive, the judge said.
The proceedings arose from a March 2007 request for environmental
information from Gary Fitzgerald, Montgomery Court, 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 the
years 2002 to 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 informed Mr Fitzgerald it would
release 8 documents to him and withhold 18. The commissioner
ultimately decided one of those 18 documents - document No
5 - 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 for the Government relating
to issues including the National Climate Change Strategy and
were not at issue.
In refusing to release document No 5, the Taoiseach’s department
argued it was a note of comments made at a meeting of the
Government on June 24, 2003 and was "specifically excluded
from disclosure" by the Constitution and 2007 regulations.
Article 10 of the EC (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 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 into the
environment.
While conscious that her decision conflicted with the constitutional
protection of confidentiality of Cabinet discussions, the
commissioner said the Taoiseach’s department had failed in
that - where there is a clash between a directly effective
EU measure and a national law, the EU measure is 'supreme'.
In a reserved judgment, Mr Justice O’Neill upheld the Taoiseach’s
appeal against the Commissioner’s decision. Noting his judgment
could be appealed to the Supreme Court, the judge 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.
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