THE TAOISEACH has brought a High Court challenge to 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.
Commissioner Emily O’Reilly directed release of the document to Gary Fitzgerald after deciding a 2003 EU directive, guaranteeing a right of access by the public to environmental information held by public authorities, mandated that release.
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. The commissioner said even confidentiality provided for by law was not sufficient to displace the presumption that environmental information relating to emissions will be released.
She added she “could not ignore” that the effect of regulations enacted here in 2007 with a view to implementing the EU directive was “at odds with the provisions and stated intent of the directive”.
She said she was conscious her decision conflicted with the constitutional protection of confidentiality of Cabinet discussions. However, she added, the Taoiseach’s department had failed to point to any case law which appeared to negate Mr Fitzgerald’s argument, where there is a clash between a directly effective EU measure and a national law, the EU measure is “supreme”.
In his appeal against that decision, the Taoiseach has made a preliminary argument that the commissioner had no power to consider such legal issues and had acted outside her jurisdiction in doing so. It is claimed the commissioner has no jursidiction to determine whether the directive was properly implemented in national law or to determine whether it has direct effect here.
It is also argued the commissioner’s decision breached the provisions of the Constitution relating to confidentiality of Cabinet discussions and breached the EC (Access to Information on the Environment) Regulations 2007. The appeal opened before Mr Justice Iarfhlaith O’Neill yesterday and is expected to run for three days.
The proceedings arise from the March 30th, 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 inclusive.
