60W
THE HIGH COURT ?Ml/Ill

JUDICIAL REVIEW
[2016 No. 697 
BETWEEN
RIGHT TO KNOW CLG
APPLICANT
AND
AN TAOISEACH
AND
MINISTER FOR COMMUNICATIONS, CLIMATE ACTION
AND ENVIRONMENT
RESPONDENTS

JUDGMENT of Ms. Justice Fahertv delivered on the 1St day of June. 2018

1. This matter comes before the Court arising from the ?rst respondent?s refusal

Of the applicant?s application for access to ?all documents which show cabinet

discussions on Ireland?s greenhouse gas emissions from 2002 to 2016?.

2. The request was made under the European Communities (Access tO

Information on the Environment) Regulations, 2007 2014 (?the AIE Regulations?)

and Directive on Public Access to Environmental Information (?the

Directive?).

3. This request was replied to by letter Of 5th May, 2016 from Ms. Maura Duffy

on behalf Of the ?rst reSpondent, wherein the applicant was advised as follows:
?Following a search of Departmental ?les 31 records have been identi?ed as
being relevant to your request. The attached schedule provides a list of these
records, however, having regard tO the provisions Of Articles 8(b) and 10(2) Of
the 2007 A113 Regulations which give effect to Cabinet con?dentiality, I have

decided to decline access to such documents. The decision Of Mr. Justice

O?Neill given in the High Court in June, 2010 (An Taoiseach v. Commissioner

for Environmental Information and Gary itzgerold) is also relevant to this

request.?

4. Attached to the decision was a ?schedule of documents for AIE 2016/0001?,

which listed the 31 documents together with a brief description of same. All were

?withheld?. The basis for the refusal in respect of each document was 

Regulation 8(b) and 

5. Pursuant to Article 11 of the AIE Regulations, the applicant sought an internal

review of the decision on the following grounds:

1.

That the decision was wrong in law in that it did not comply with the

obligation under EU law to give primacy to EU law over national law.

2. That the Directive was directly effective in that it gave the applicant a
right of access to the documents requested and no exemptions under
the Directive applied or had been cited in the original decision.

3. The AIE Regulations clearly required a balancing exercise to be carried
out in all circumstances which was not done.

4. That the High Court was wrong in An aoiseach v. Commissioner for
Environmental Information and the case must be disapplied.

5. No balancing test was carried out and such a test was required to be
conducted by the review-decision-maker.

6. The internal review was undertaken by Mr. John Shaw, Assistant Secretary in

the ?rst res ondent?s de artment. His decision ?the review decision? issued on 27?h


June, 2016. In relevant part, it reads as follows:

refer to your request under the Access to Information on the Environment

Regulations 2007 2014 for an Internal Review in relation to the decision sent

to you on 5 May 2016. I con?rm that I have reviewed [the] decision in this

case and have af?rmed the original decision not to release the records under

the provisions of Articles 8(b) and 10(2) of the AIE Regulations which relate

to the Constitutional protection for the con?dentiality of discussions at

meetings of the Government.?
7. The applicant was advised that it could appeal to the Commissioner for
Environmental Information. The applicant did not appeal. Rather, the within
proceedings issued on 7th September, 2016. By Order of Fulham .1. dated 7th October,
2016, leave was granted to the applicant to seek relief by way of certiorari of the
review decision together with a number of declaratory reliefs, including a declaration
that the second respondent, in transposing the Directive, was not permitted under EU
law to exclude an entire class of documents from disclosure, and that the second
respondent was not permitted under EU law to narrow the broad right to access
documents relating to emissions into the environment contained in the last sentence of
the second paragraph of Article 4(2) of the Directive.
8. The grounds upon which the applicants rely are as follows:

0 The review decision was made without lawful jurisdiction, is
incompatible with EU law and should be quashed and remitted for the
internal review requested by the applicant to be conducted in
accordance with the State?s EU law obligations.

- In relying on the constitutional protection of Cabinet con?dentiality to
overrule a right contained in directly effective provisions of the
Directive, the first respondent is giving primacy to national law over
EU law, in clear breach of the case law of the European Court of

Justice (ECJ).

The reasons given in the review decision, such as they are, merely state
the conclusion of the review decision-maker, namely that the original
decision has been upheld. The review decision fails to set out reasons
for the decision, contrary to established principles of national and EU
law. The dearth of reasons makes an effective review of the substance
of the review decision, either by the court or the Commissioner for
Environmental Information impossible. Furthermore, the review
decision maker failed to engage with the applicant?s detailed
submissions. In the absence of any or any adequate reasons, it is not
possible effectively to exercise the right of appeal to the Commissioner
for Environmental Information as provided for in the AIE Regulations.
The review decision is based on a fundamental error, namely that it
was not open to the review decision?maker to disapply national law,
which the ?rst respondent appears to source in An Taoiseacli v.
Commissioner for Environmental Information [2013] 2 IR. 510.

The rights asserted by the applicant derive from EU law. The
provisions of the Directive allow for refusal of access on the limited
grounds speci?ed in the Directive, which fall to be construed in the
light of the Convention on Access on Information, Public Participation
in Decision Making and Access to Justice in Environmental Matters
done at Aarhus Denmark on 25 June 1998 (?the Aarhus Convention?)
and on no other grounds. It was not Open to the second respondent, in
making the AIE Regulations, to add new grounds that are not provided

for in the Directive.

0 Article 4(2) of the Directive disapplies celtain exemptions to access to
information that are permitted under Article 4(2) where the relevant
information relates to emissions into the environment. Article 10(2) of
the AIE Regulations attempts to limit the scope and operation of
Article 4(2) of the Directive and, as such, is incompatible with the
Directive.

- Article 8(b) of the AIE Regulations appears to put a mandatory
obligation on a public authority to refuse a request for information if
release of the information sought ?would involve disclosure at one or
more meetings of the government?. Yet the entirety of Article 8 of the
AIE Regulations is subject to Article 10 thereof. Article 10(3) of the
AIE Regulations imposes an obligation on a public authority, when
considering a request for information, to ?weigh the public interest
served by disclosure with the public interest served by refusal?.
Accordingly, the ?rst respondent should have carried out a balancing
test prior to any refusal of access to the documents, or any part of
them. This requirement for a balancing exercise derives from EU law,
as set out in Article 4(2) of the Directive in mandatory terms. Yet no
such balancing test was carried out by the review decision maker or in
the original decision.

9. The applicant?s case is grounded on the af?davit of Gavin Sheridan,
journalist, and managing director of the applicant. He avers, inter alia, as follows:

?This case raises fundamental issues in relation to the relationship between

national law and EU law, in addition to fundamental issues about transparency

of Irish Govemment decision-making in relation to environment matters. The

right to access environmental information contained in the Aarhus

Convention, the Directive and AIE Regulations is not an abstract, standalone

right; rather, it is central to ensuring effective public participation in decisions

in environmental matters, ensuring accountability for such decisions and

making sure that the best possible decision is made.?

10. The applicant also relies on an af?davit sworn by Professor John Sweeney,

emeritus Professor of Geography at Maynooth University whose career in research

and teaching in North America, Africa and Ireland focused principally on aSpects of

climatology and climate change.

11. In their statement of opposition, the respondents oppose the judicial review

application on the following grounds:

1.

The applicant?s arguments were recently considered and rejected by the
High Court in An Taoiseach v. Commissioner for Environmental
Information. The applicant has put forward no basis on which it could
be said that that case was wrongly decided.

The con?dentiality of Cabinet discussions is protected by Article
28.4.3 of the Constitution, subject only to the jurisdiction of the High
Court to order disclosure on the grounds set out in Article 28, which do
not apply in the instant case. There is moreover an important public
interest in protecting the con?dentiality of Cabinet discussions.

The disclosure of material relating to Cabinet discussions is a ground
for refusal in Article 8(b) of the AIE Regulations, and such discussions
are expressly exempted from the general obligation to disclose material
relating to emissions into the environment by virtue of Article 10(2) of

the said Regulations.

There is no con?ict between the provisions of the AIE Regulations and
the Directive. Records of Cabinet discussions constitute ?internal
communications? within the meaning of Article of the
Directive, and, accordingly are not covered by the exemption contained
in Article 4(2) thereof in respect of information on emissions into the
environment.

Alternatively, without prejudice to the foregoing, records of Cabinet
discussions constitute ?proceedings of public authorities? within the
meaning of Article 8(a) (iv) of the AIE Regulations and Article 
of the Directive, the con?dentiality of which is protected by law. As
such discussions do not constitute ?information on emissions into the
enviromnent? they are not covered by the exemption in Article 4(2) of
the Directive in respect of information on emissions into the
environment.

Further (and without prejudice to the foregoing), records of Cabinet
discussions constitute ?internal communications? within the meaning
of Article 9(2) of the AIE Regulations and hence their disclosure
may be refused pursuant to Article The records also constitute
?internal communications within the meaning of Article 4(1) of the
Directive, and as such are not covered by the exemption in Article 4(2)
of the Directive in respect of information on emissions into the
environment.

Even if there was any basis for arguing that there was a conflict
between national and EU law, it is denied that the first respondent had

any jurisdiction to disapply Regulation 8(b) and 10(2) of the AIE

10.

11.

12.

13.

Regulations, much less Article 28.4.3 of the Constitution, based on his
own interpretation of the Directive. Pursuant to the laws of the State, it
is the express function of the courts under Article 34 of the
Constitution to determine such matters, as expressed by the High Court
in An aoiseach v. Commissioner for Environmental Information.

It is denied that the review decision-maker failed to give reasons for the
re?lsal. It is clear from both the applicant?s application for an internal
review and from the pleadings herein that the applicant fully
understood the reasons for the refusal.

It is denied that there is any con?ict between the AIE Regulations and
EU law or that the ?rst respondent did or was required to give primacy
to national law over EU law.

It is denied that the review decision is based on a fundamental error of
law as alleged in the statement of grounds: the ?rst respondent had no
role in considering whether the AIE Regulations correctly implemented
the Directive; he was limited to applying the AIE Regulations as
interpreted by the High Court in An aoiseach v. Commissioner for
Environmental Information.

It is denied that Article 8(b) of the AIE Regulations gives effect to a
ground of refusal which is not recognised by the Directive or that it
quali?es any right set out therein.

It is further denied that Article 10(2) of the AIE Regulations is
incompatible with or limits the scope of Article 4(2) of the Directive.
The ?rst respondent examined each of the relevant documents and

considered whether same came within the protection afforded to

Cabinet discussions in the AIE Regulations. Having regard to the
constitutional status and public importance of Cabinet con?dentiality
under Irish law, any public interest that would be served by the
disclosure of the requested document?s is clearly and decisively
outweighed by the importance of protecting Cabinet con?dentiality.

14. The ?rst respondent acted within jurisdiction as laid down in the AIE
Regulations.

15. The AIE Regulations protect material from disclosure which is covered
by Article 28.4.3 of the Constitution, and there is no con?ict between
domestic law and EU law in this regard.

16. Without prejudice to the foregoing, even if such a con?ict did exist
(which is denied) the interpretation and resolution of such was not for
the ?rst respondent.

12. In his af?davit grounding the statement of opposition, Mr. Shaw, the review
decision-maker, avers that for the purpose of conducting the review he examined the
submission of Ms. Duffy outlining the reasons for her decision, the applicant?s request
for the review, legal advice from the Attorney General?s of?ce, the schedule of
documents withheld and copies of the individual documents. He goes on to state:

say that I considered each of the documents to see whether they properly

came within the protection afforded the Cabinet discussions in the AIE

Regulations, and, in doing so, had regard to the importance of the principle of

cabinet con?dentiality. I say that, having conducted this exercise, I af?rmed

the decision of Ms. Duffy not to release the documents under Article 8(b) and

10(2) of the AIE Regulations.?

The relevant statutory provisions

13.

10

At this juncture, it is apposite to set out the relevant provisions of the Directive

and the AIE Regulations as arise for consideration in this case.

The Directive

14.

Article 3 of the Directive provides:

Member States shall ensure that public authorities are required, in

accordance with the provisions of this Directive, to make available

environmental information held by or for them to any applicant at his request

and without his having to state an interest.

2. Subject to Article 4 and having regard to any timescale speci?ed by the

applicant, environmental information shall be made available to an applicant:

as soon as possible or, at the latest, within one month after the receipt
by the public authority referred to in paragraph 1 of the applicant's
request; or

within two months after the receipt of the request by the public
authority if the volume and the complexity of the information is such
that the one?month period referred to in cannot be complied with. In
such cases, the applicant shall be informed as soon as possible, and in
any case before the end of that one?month period, of any such

extension and of the reasons for it.

5. For the purposes of this Article, Member States shall ensure that:
of?cials are required to support the public in seeking access to
information;

lists of public authorities are publicly accessible; and

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the practical arrangements are de?ned for ensuring that the right of

access to environmental information can be effectively exercised, such as:

- the designation of information of?cers;

- the establishment and maintenance of facilities for the examination of
the information required,

- registers or lists of the environmental information held by public
authorities or information points, with clear indications of where such
information can be found.

Member States shall ensure that public authorities inform the public

adequately of the rights they enjoy as a result of this Directive and to an

appropriate extent provide information, guidance and advice to this end.?
15. The Directive also provides for the basis upon which access to environmental
information may be refused:

?Article 4

Exceptions

1. Member States may provide for a request for environmental
information to be refused if:

the information requested is not held by or for the public
authority to which the request is addressed. In such a case,
where that public authority is aware that the information is held
by or for another public authority, it shall, as soon as possible,
transfer the request to that other authority and inform the
applicant accordingly or inform the applicant of the public
authority to which it believes it is possible to apply for the

information requested;


(C)



(6)

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the request is manifestly unreasonable;

the request is formulated in too general a manner, taking into
account Article 

the request concerns material in the course of completion or
un?nished documents or data;

the request concerns internal communications, taking into

account the public interest served by disclosure.

Where a request is refused on the basis that it concerns material in the

course of completion, the public authority shall state the name of the

authority preparing the material and the estimated time needed for

completion.

Member States may provide for a request for environmental

information to be refused if disclosure of the information would

adversely affect:




(C)



the con?dentiality of the proceedings of public authorities,
where such con?dentiality is provided for by law;

international relations, public security or national defence;

the course of justice, the ability of any person to receive a fair
trial or the ability of a public authority to conduct an enquiry of
a criminal or disciplinary nature;

the con?dentiality of commercial or industrial information
where such con?dentiality is provided for by national or
Community law to protect a legitimate economic interest,
including the public interest in maintaining statistical

con?dentiality and tax secrecy;

 intellectual preperty rights;

the con?dentiality of personal data and/or ?les relating to a
natural person where that person has not consented to the
disclosure of the information to the public, where such
con?dentiality is provided for by national or Community law;

the interests or protection of any person who supplied the
information requested on a voluntary basis without being under,
or capable of being put under, a legal obligation to do so, unless
that person has consented to the release of the information
concerned;

the protection of the environment to which such information
relates, such as the location of rare species.

The grounds for refusal mentioned in paragraphs 1 and 2 shall be

interpreted in a restrictive way, taking into account for the particular

case the public interest served by disclosure. In every particular case,
the public interest served by disclosure shall be weighed against the
interest served by the refusal. Member States may not, by virtue of
paragraph and provide for a request to be refused
where the request relates to information on emissions into the
environment. Within this framework, and for the purposes of the
application of subparagraph Member States shall ensure that the
requirements of Directive of the European Parliament

and of the Council of 24 October 1995 on the protection of individuals

with regard to the processing of personal data and on the free

movement of such data are complied with (1).

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Where a Member State provides for exceptions, it may draw up a
publicly accessible list of criteria on the basis of which the authority
concerned may decide how to handle requests.

Environmental information held by or for public authorities which has
been requested by an applicant shall be made available in part where it
is possible to separate out any information falling within the scope of
paragraphs 1(d) and or 2 from the rest of the information requested.
A refusal to make available all or part of the information requested
shall be noti?ed to the applicant in writing or electronically, if the
request was in writing or if the applicant so requests, within the time
limits referred to in Article or, as the case may be, The
noti?cation shall state the reasons for the refusal and include
information on the review procedure provided for in accordance with

Article 

The AIE Regulations

In similar vein to Article 3 of the Directive, Article 7 of the AIE regulations

puts an obligation on a public authority to make available environmental information

held by it on receipt of a request made under Article 6.

For the purposes of the within proceedings, the relevant provisions of the AIE

Regulations which provide for exceptions to the right of access are as follows:

A public authority shall not make available environmental information
in accordance with article 7 where disclosure of the 

would adversely affect?

9.

10.

15

(iv) without prejudice to paragraph the con?dentiality of
the proceedings of public authorities, where such
con?dentiality is otherwise protected by law

or

to the extent that it would involve the disclosure of
discussions at one or more meetings of the Government, is

prohibited by Article 28 of the Constitution.

(2) A public authority may refuse to make environmental information

available where the request?

concerns internal communications of public authorities,

taking into account the public interest served by the disclosure.

Incidental provisions relating to refusal of iiy?ormation

(1) Notwithstanding articles 8 and 9 a request for environmental
information shall not be refused where the request relates to
information on emissions into the environment.

(2) The reference in sub-article (1) to information on emissions into the
environment does not include a reference to any discussions on the
matter of such emissions at any meeting of the Government.

(3) The public authority shall consider each request on an individual
basis and weigh the public interest served by disclosure against the

interest served by refusal.

16

(4) The grounds for refusal of a request for environmental information
shall be interpreted on a restrictive basis having regard to the public
interest served by disclosure.
(5) Nothing in article 8 or 9 shall authorise a public authority not to
make available environmental information which, although held with
information to which article 8 or 9 relates, may be separated from such
information. . 
18. A request for access to similar documents as those requested by the applicant
in the present case was made by a member of the public in 2007, which led the
Commissioner for Environmental Information to order the release of certain
documents. This decision was challenged by the ?rst reSpondent in the High Court
leading to the judgment in An Taoiseach v. Commissioner for Environmental
Information, the decision referenced in the original decision in the within proceedings
and upon which the respondents rely in answer to the applicant?s within challenge. In
the course of his judgment, O?Neill J. had cause to consider the provisions of the
Directive and the AIE Regulations.
An aoiseach v. Commissioner for Environmental Information
19. In An Taoiseach v. Commissioner for Environmental Information, the notice
party sought access to documents relating to cabinet decisions or reports of cabinet
discussions on Ireland's greenhouse gas emissions. Having been refused, the notice
party appealed to the Commissioner for Environmental Information, who decided that
the exception for cabinet discussions as set out in Article 10(2) of the AIE
Regulations was not in conformity with the Directive. As the Directive was directly
effective, the Commissioner directed the disclosure of a document which concerned

cabinet discussions on greenhouse gas emissions. The appellant appealed the decision

17

to the High Court on the grounds that the Commissioner had no jurisdiction to
interpret or disapply the AIE Regulations, and that in any event she had wrongly
interpreted the AIE Regulations and the Directive. The Commissioner argued that in
View of the primacy of EU law, she was obliged not to apply any provision of national
law which was incompatible with EU law.

20. In allowing the appeal, O'Neill J. held in the ?rst instance that the
Commissioner did not have jurisdiction to consider whether the AIE Regulations were
inconsistent with the Directive. He held that questions involving the interpretation of
EU law, and its compatibility with national law, were a matter for the courts and not
for administrative bodies such as the Commissioner. In his view, the case law of the
ECJ was clear in determining that the primacy of EU law is secured by the general EU
rule to that effect, but that it is then left to Member States to determine procedures for
the enforcement of EU law within the architecture of their respective legal systems.
Accordingly, there was no dif?culty under EU law in reserving questions of the
interpretation of EU law and its compatibility with national law to the courts rather
than to administrative bodies such as the ?rst respondent.

21. The applicant?s statement of grounds takes issue with O?Neill ?ndings in
this regard, and in the course of his written submissions counsel for the applicant
argued that O'Neill J's ?nding in this regard is dif?cult to reconcile with the principle
of the supremacy the ECJ. However, in the course of the
hearing of the within application, counsel accepted that as far as the decision which is
sought to be impugned in the within proceedings is concerned, the question of
whether the review decision-maker was obliged to disapply national law in favour of
the Directive is somewhat irrelevant given that the matter is now before the Court on

judicial review and has not been pursued by way of appeal to the Commissioner for

18

Environmental Information. In any event, and insofar as the applicant sought to argue
to the contrary, I am satis?ed that the recent decision of the Supreme Court in
Minister for Justice v. Workplace Relations Commission [2017] IESC 43 has upheld
the position that the EU principles of equivalence and effectiveness are not infringed
by requiring that a claim that secondary legislation was not to be obeyed if contrary to
EU law is to be brought before the High Court for determination.

22. I turn now to those parts of the judgment of O?Neill J. in An Taoiseach v.
Commissioner for Environmental Information which are germane to the issues which
fall to be decided in the within proceedings.

23. In the course of his judgment, O?Neill J. considered how the AIE Regulations
and the Directive were to be interpreted in the context of a request for records of
discussions of the Government.

24. The learned judge noted that the obligation to disclose records of cabinet
discussions, and the compatibility of the AIE Regulations with the Directive,
depended on whether the records in question were considered either:-

"internal communications of public authorities" as referred to in Article
of the Directive and Article of the AIE Regulations. If
this interpretation were adopted, cabinet discussions were exempt from
disclosure.

(ii) "proceedings of public authorities" as referred to in Article of
the Directive and Article 8(a)(iv) of the AIE Regulations. It was noted
that given that this exemption is subject to the exception contained in
Article 10(1) of the AIE Regulations and Article 4(2) of the Directive

relating to ?information on emissions into the environment?, cabinet

19

records which contained material relating to emissions into the
environment would not be exempt from disclosure.

25. O?Neill J. considered that a third interpretation was that records of cabinet

discussions were neither of the above, and that such records were covered separately

under Article 8(b) of the AIE Regulations.

26. As his judgment discloses, O'Neill J. preferred the third interpretation, namely

that records of Cabinet discussions were covered solely by Article 8(b) of the A113

Regulations. His reasoning was expressed in the following terms:?
"It is clear that the Regulations of 2007 expressly and unequivocally
make provision for discussions at meetings of the Government in art.
8(b) and article 10(2). Hence, applying the primary canon of
construction, namely ascertaining the true meaning of the words used
and applying same unless absurdity is produced, I am of the opinion
that, for the purpose of the Regulations of 200 7, it must be taken that
the only provisions of the Regulations of 2007 that govern or affect
cabinet confidentiality are arts. 8(b) and art. 10(2) and not art. 8(a)(iv)
or art. The opening phrase in art namely 'without
prejudice to paragraph tends to reinforce this conclusion. Article
10(2) has the ejfect of protecting ?om disclosure a record of
discussion at a meeting of the Government of emissions into the
environment. (at para. 81)

27. Having so found, O'Neill J. then considered whether the express exception for

Cabinet records in Article 8(b) and Article 10(2) of the AIE Regulations "is

inconsistent with the Directive and, therefore invalid It was in this context that the

20

question of the correct categorisation of Government meetings arose for
consideration, and whether Article or Article of the Directive applied.
28. O?Neill J. formed the view that it was "somewhat arti?cial and strained to
consider cabinet meetings as the "proceedings" of a public authority within the
meaning of Article of the Directive. Rather, he held that it was clear from the
circumstances in which members of the Government met at cabinet to communicate
in a private and internal manner that the records of such discussions could only be
interpreted as "internal communications" within the meaning of Article of the
Directive. Any other conclusion would lead to "absurd results O?Neill J.?s
conclusions were eXpressed as follows:

On the other hand, meetings of the Government are the occasions
when, as provided for in Article 28.4.2o of the Constitution, the
members of the Government come together to act as a collective
authority, collectively responsible for all departments of State.
Meetings of the Government are the constitutionally mandated means
or system of communication between its members for the purpose of
discharging their collective responsibility. These meetings and their
records are required by the Constitution to be private and con?dential
unless otherwise directed by the High Court under Article 28.3 of the
Constitution. Whereas many aspects of the functions of the
Government are essentially public and external in nature, meetings of
the Government are quintessentially private and internal to the overall
functions of the Government. Thus, in my judgment, this
constitutionally mandated form of communication between members of

the Government can only be regarded as the internal communications

21

of a public authority. Any other conclusion would lead to absurd
results, as pointed out by counsel for the appellant, in that
communications between members of the Government in any other
context apart from formal meetings of the Government would have to
be regarded as internal communications and protected from disclosure
but the same communications at a Government meeting would, as ?the
proceedings of a public authority?, attract disclosure. Manifestly such a
state of a?airs, apart from its obvious absurdity, would seriously
undermine the discharge of collective responsibility by the
Government, as required by Article 28. 4.2? of the Constitution. In this
regard, I should further add that I am quite satisfied that the
distinction sought to be drawn between communications between the
members of a public authority and between officials of that authority
or between officials of the authority and the members of the authority
is devoid of any rational merit and has no discernible basis either in
the express provisions or, by way of necessary implication, in the
Directive or the Regulations of 200 7.

[85] Hence in my view art. (sic)of the Directive clearly applies to
meetings of the Government and thus there is no conflict between arts.
8(b) and 10(2) of the Regulations of 2007 and the Directive. 

The issues which arise in the within case
29. Having regard to the pleadings and the written and oral submissions of the

parties, I consider that the following issues arise in the within proceedings:

22

a. Whether the respondents are seeking to rely on new legal grounds to
justify the review decision-maker?s refusal to disclose, which were not
set out in the review decision or in the original decision.

b. Whether Government discussions are ?internal communications? under
Article of the Directive, as found by O?Neill J. in An aoiseach
v. Commissioner for Environmental Information.

0. Whether An Taoiseach v. Commissioner for Environmental
Information was otherwise wrongly decided;

Whether the exemptions provided under the Articles 8(b) and 10(2) of
the AIE Regulations impose a class based exemption to the right of
access to environmental information, derived not from the Directive
but from the constitutional protection for the con?dentiality of
discussions at Government meetings. If so, whether in this regard the
said provisions are inconsistent with the Directive?

e. Whether the review decision?maker acted in breach of the Directive
and/or the AIE Regulations in failing to interpret any relevant
exemption under the AIE Regulations in a restrictive way, taking into
account the public interest served by the disclosure;

f. Whether the review decision-maker acted in breach of the Directive
and/or the AIE Regulations in failing to weigh the public interest
served by disclosure against the interest served by refusal on a case by
case basis;

g. Whether the review decision-maker acted in breach of the Directive
and/or the AIE Regulations in failing to consider granting partial

access to the requested information; and

23

h. Whether the review decision?maker acted in breach of national and/or
EU law in failing to give reasons or adequate reasons for his decision.

Are the respondents seeking to rely on grounds to justi?) the refusal of information
which were not relied on by the review decision-maker?
30. As the statement of opposition discloses, the respondents rely, by way of
alternative argument to their position that the review decision-maker properly refused
access pursuant to Article 8(b) and 10(2) of the AIE Regulations, on Article of
the Directive and Article 8(a)(iv) of the AIE Regulations as a basis for refusal of the
information sought by the applicant. They further plead that Government discussions
do not constitute ?information on emissions into the environment?; hence the
respondents effectively contend that the exemption provided for in the last sentence of
the second paragraph of Article 4(2) of the Directive did not apply in this case.
31. The applicant's reSponse to this argument is that the respondents cannot be
permitted to rely on a basis for refusal (Article of the Directive or Article
8(a)(iv) of the AIE Regulations) which was not contained in the review decision.
Furthermore, it is contended that the respondents cannot be permitted, in their now
reliance on Article of the Directive, to argue that the information sought did
not constitute information concerning emissions into the environment, as, again, this
was not the basis of refusal in the review decision. Nor is such a case made in Mr.
Shaw?s af?davit. It is however acknowledged by the applicant that if the documents
in question are not documents concerning emissions into the environment, then the
emissions override as contained in the second paragraph of Article 4 of the Directive
cannot be invoked in the applicant?s favour if the Court were to hold that Government
discussions constituted ?proceedings? for the purposes of Article 4(a) of the Directive

or Article 8(a)(iv) of the AIE Regulations. However, it is further argued, if the

24

respondents are permitted to rely on Article of the Directive as a basis for a
refusal under that Article, or its equivalent under the AIE Regulations, that the ?rst
respondent was still mandated to carry out the requisite balancing exercise, as
provided for both in the Directive and the AIE Regulations, which did not occur.

32. Counsel for the applicant also objects to the respondents? reliance on Article
of the Directive and Article of the AIE Regulations since, again, none
of these provisions was cited by the review decision-maker as a basis for the re?tsal.
33. The respondents reject the applicant?s claims that in relying on Article 
and of the Directive and on Article 8(a)(iv) and of the AIE
Regulations, they are raising new arguments not dealt with in the review decision.
Contrary to the applicant?s submission, the respondents say that they have not sought
to amplify the reasons given in the review decision. It is submitted that all of the
aforesaid provisions were considered at some length by O?Neill J. in An Taoiseach v.
Commissioner for Environmental Information, a case which was speci?cally referred
to by the original decision-maker, whose decision was subsequently upheld in the
review decision. The respondents argue that in such circumstances there is no basis on
which the applicant can claim that there is anything new in the arguments being
advanced by the respondents. It is submitted that the arguments being made by both
sides in the present case bear a striking similarity to those advanced in An Taoiseach
v. Commissioner for Environmental Information and by the applicant in the case
presented to the review decision-maker.

34. In the ?rst instance, I do not understand the applicant to be vigorously
opposing the respondents? reliance on Article of the Directive. In any event, it
is clear to the Court that given the reference in the original decision to An aoiseach

v. Commissioner for Environmental Information, and the upholding of the original

25

decision by the review decision-maker, it can hardly come as a surprise to the
applicant that the respondents would invoke Article of the Directive to aid
their arguments as to why the applicant?s challenge should fail, since O?Neill J. found,
that Article ?clearly applies to meetings of the Government?. That being said
however, I am persuaded by the applicant?s submission that the respondents are
attempting, ex postfacto, to justify the refusal of the information sought by reference
to, in particular, Article of the Directive and Article 8(a)(iv) of the AIE
Regulations, in circumstances where the review decision-maker did not invoke those
provisions and where the decision-maker solely relied on the discrete grounds for
refusal as set out in Articles 8(b) and 10(2) of the AIE Regulations, as interpreted by
O?Neill ., and in circumstances where ONeill J. expressly rejected the notion that
cabinet discussions constituted ?proceedings? of public authorities for the purposes of
Article of the Directive and Article 8(a)(iv) of the AIE Regulations. However,
the aforesaid notwithstanding, the applicant?s written and oral submissions suggest
that an issue for this Court is whether O?Neill J. erred in law in ?nding that, as a class
of information and without any reference to the information at issue in the case,
discussions at meetings of the Government are ?internal communications? within the
meaning of Article of the Directive, a submission which, to my mind, suggests
that the Court is effectively being asked by the applicant to consider whether meetings
of the Cabinet are otherwise than ?internal communications? of the Government as a
public authority, and whether, in fact, cabinet discussions constitute ?proceedings? of
a public authority for the purposes of Article in respect of which, albeit access
to environmental information may be refused under Article access shall not be
refused if the request relates to ?information on emissions into the environment?. In

such circumstances, the Court will have to consider the provisions of Article 

26

of the Directive and Article 8(a) (iv) of the AIE Regulations as well as the provisions
of Article and the corresponding provision in the AIE Regulations. However,
the Court cannot lose sight of the fact that the within judicial review must be
concerned solely with the actual grounds of refusal, which, in the words of the review
decision-maker, ?relate to the Constitutional protection for the con?dentiality of
discussions at meetings of the Government?, as provided for in Articles 8(b) and

10(2) of the AIE Regulations.

Is An aoiseach v. Commissioner for Environmental Information a full answer to
the applicant?s within challenge, as contended for by the respondents?

35. It is proposed under this heading to address issues to as identi?ed
above by the Court as arising in the within proceedings.

The applicant's submissions

36. It is clear from Article 8 of the AIE Regulations that the State, with reSpect to
the mandatory obligation to disclose environmental information, has availed of all of
the exceptions to this requirement provided for in Article 4(1) and (2) of the Directive.
37. With regard to the exceptions in issue in the within proceedings, it is clear that
Article is replicated by Article of the AIE Regulations and that
Article of the Directive is replicated by Article 8(a)(iv) of the Regulations.

38. The principal argument canvassed on behalf of the applicant in the within
proceedings is that Article 8(b) and 10(2) of the AIE Regulations provide for
exceptions to the requirement to provide environmental information which are not
provided for in the Directive. Counsel for the applicant submits that this is the crux of
the within application for judicial review.

39. As is clear from the review decision, Articles 8(b) and 10(2) constitute the sole

basis for the ?rst respondent's refusal of the applicant's request. The applicant submits

27

that such mandatory standalone bases for refusal are not provided for in the Directive.
It is contended that there cannot be a blanket refusal of access to environmental
information. In this regard, counsel cites the decision of the Compliance Committee
of the UN Economic and Social Council dated 26th June, 2015, which held that ?the
classicisation of an entire type of environmental information as exempt ??om
disclosure runs contrary to the letter and spirit of the [Aarhus] Convention?. It is
submitted that in Conway v. Ireland [2017] IESC 13, Clarke J. found it "appropriate
to have regard to decisions and commentaries of the Compliance Committee
established under the Aarhus Convention for the purposes of facilitating the
compliance by subscribing States with the terms of the Convention itself".

40. Counsel points to the heading to Article 8 of the AIE Regulations - "Grounds
that, subject to article 10, mandate a refusal". It is submitted that pursuant to the
Directive, no ground of refusal of environmental information is mandatory; there is
only mandatory disclosure of information subject to permitted exceptions.
Furthermore, where a request for environmental information is sought to be refused
under Article 4(1) or (2) of the Directive, it is mandatory that the public interest
served by disclosure must be taken into account and weighed against the public
interest served by a refusal. Moreover, consideration must be given to the question of
partial disclosure.

41. It is speci?cally submitted on the applicant?s behalf that insofar as the
respondents plead that Article 8(b) is not inconsistent with the Directive, and that
records of cabinet discussions constitute "internal communications" within the
meaning of Article of the Directive and/or Article of the AIE
Regulations and that therefore disclosure may be refused on that basis, there remained

an obligation on the review decision-maker, before any refusal of the requested

28

documents, "to take account of the public interest served by disclosure? as provided
for both in Article of the Directive and Article of the AIE Regulations,
which was not carried out in the present case.

42. More fundamentally, counsel submits that the rationale of O?Neill J. in An
Taoiseach v. Commissioner for Environmental Information is illogical and ?awed. It
is contended that the learned judge reasoned backwards in order to ?nd a ground for
the refusal that is provided for in the Directive. More particularly, counsel asserts,
even when ?nding that Article 8(b) of the AIE Regulations applied to discussions at
meetings of the Government, the learned judge failed to read into Article 8(b) the
requirement that a mandatory balancing exercise must be carried out (and which
should have been carried by O?Neill J. in his appellate capacity), a requirement which
is provided for both in Article of the Directive and, more particularly, in the
second subparagraph of Article 4 of the Directive.

43. Counsel also places particular emphasis on the fact that the second
subparagraph of Article 4 of the Directive speci?cally provides that the grounds for
refusal mentioned in Article 4(1) and (2) "shall be interpreted in a restrictive way,
taking into account for the particular case the public interest served by disclosure" and
that "in every particular case, the public interest served by disclosure shall be weighed
against the interest served by the re?Jsal". Moreover, over and above the requisite
balancing exercise to be carried out, Article 4(4) of the Directive makes it mandatory
for a public authority to make partial disclosure, where it is possible to do so, in
respect of information falling within the sc0pe of Article and and Article
4(2) of the Directive.

44. It is thus submitted that O?Neill J. erred in upholding the first respondent?s

blanket approach in Article 8(b) to refusal of environmental information based on

29

cabinet con?dentiality, most especially in circumstances where O?Neill J. made no
provision for the mandatory balancing exercise or the possibility of partial disclosure
of documents.

45. It is suggested on behalf of the applicant that the AIE Regulations are
incompatible with the Directive if the Regulations are to be interpreted as providing
for a class exemption from the obligation to disclose environmental information. In
aid of his submission in this regard, counsel cites NAMA v. Commissioner for
Environmental Information [2015] IESC 51, where O'Donnell J. considered the
manner in which the Directive was transposed into Irish law. He stated:?

It may be appropriate to pause here and make some observations on
both the method, and terms, of the implementation of Directive
into Irish law. If this directive had been implemented by
primary legislation, then some di?iculty in interpretation might be
lessened since even if the provisions of Irish law were interpreted as
more extensive than required by the Directive of 2003, that would not
pose any problem as the Directive of 2003 already contemplates and
permits the possibility that member states could adopt more extensive
provisions. However, this directive is implemented by statutory
instrument pursuant to the provisions of the European Communities
Act 1972. It is the making of law by a body other than the Oireachtas
(in this case the Minister) but is protected from constitutional
challenge because it bene?ts from the terms of the Constitution
adopted on accession to what was then the European Economic
Communities under what was then Article 29. 4. 3? (subsequently

renumbered) which provided that no provision of the Constitution

30

would invalidate any laws enacted, acts done or measures adopted by
the State necessitated by the obligations of membership of the
European Communities or European Union as the case may be. This
exemption however only extends to provisions ?necessitated by the
obligations of membership and thus in this context permits the making
of law by statutory instrument insofar as it faithfully implements a
directive pursuant to the obligations on Ireland as a member state to
do so. If however a statutory instrument goes further than the
implementation of the directive necessitates, it would to that extent be
unconstitutional, since it would be the making of law by a body other
than the Oireachtas, and not protected by the provisions of Article 29.
There is thus a specific importance in Irish law in understanding the
extent and terms of a directive, where implemented by secondary
legislation. In addition to the obvious benefits therefore of democratic
oversight that implementation by primary legislation would entail, that
route would also avoid some of the di?iculties of interpretation which
arose in this case. 
46. O'Donnell J's judgment sets out the limitations on the statutory instrument
method of transposing EU Directives. Counsel for the applicant submits however that
it is possible for the Court to interpret the A113 Regulations in a manner as to conform
to the requirements of EU law if the Court considers Article 8(b) of the AIE
Regulations a subset of Article which brings with it the obligation to engage
in the requisite balancing exercise, contained in Article itself and in the second
sub paragraph of Article 4 and indeed which is provided for both in Article 5 

of the A113 Regulations and, more particularly, in Article 10(3) thereof.

31

47. As to Article of the Directive, counsel submits that O?Neill 
conclusion in An Taoiseach v. Commissioner for Environmental Information that
Article of the Directive was not intended to apply to meetings of the
Government was arrived at without reference to the Directive or the Aarhus
Convention and without applying the teleological approach to the interpretation of EU
legislation as advocated by O'Donnell J. in NAMA v. Commissioner for
Environmental Protection The applicant is thus asking the Court to revisit the
question of whether cabinet discussions fall more properly within Article of
the Directive, and not Article Counsel also submits that if cabinet discussions
fall within Article of the Directive (as transposed by Article 8(a)(iv) of the
AIE Regulations), the ?rst respondent is expressly prohibited, pursuant to the last
sentence of the second sub paragraph of Article 4 of the Directive, from refusing
disclosure of requested information where the request relates to emissions into the
environment.

48. Quite clearly, Article 10(1) of the AIE Regulations gives effect to the
emissions override provision in the last sentence of the second paragraph of Article 4
of the Directive. However, Article 10(2) of the AIE Regulations excludes from the
provisions of Article 10(1) any discussions of emissions into the environment "at any
meeting of the Government". The applicant contends that in doing so, Article 10(2)
of the AIE Regulations expressly disapplies the emissions override provided for in the
second sub paragraph of Article 4 of the Directive, which is not permissible given the
mandatory nature of the emissions override as set out in Article 4 of the Directive, and
moreover in circumstances where the Directive requires that every refusal, be it under

Article 4(1) or Article must be balanced by taking into account the public

32

interest served by disclosure and duly weighing that interest against the interests
served by the refusal.
49. Insofar as the respondents now seek to rely on Article of the Directive
(and Article 8(a)(iv) of the AIE Regulations), and by the same token argue that the
Cabinet discussions cannot constitute information on emissions into the environment,
which would obviate the emissions override provided for in Article the applicant
submits that in An Taoiseach v. Commissioner for Environmental Information, it was
accepted by all parties that the material in question concerned emissions into the
environment. (See para. 53) Counsel further contends that by virtue of his reliance on
Article 10(2) of the AIE Regulations as a basis for the refusal, the review decision-
maker is, in fact, asserting that the requested documents constitute information
regarding emissions into the environment.
50. In aid of his submissions in this regard, counsel cites Case 
European Commission v. Stichting Greenpeace Nealerland (23rd November, 2016)
where the ECJ emphasised that a restrictive approach cannot be taken into what
constitutes information about emissions into the environment. (At para. 71 - 76) In a
parallel judgment in Case Bayer v. Cropscience SANV (23rd November,
2016), the ECJ again reiterated this sentiment and, at para. 86, stated as follows:?
public must have access not only to information on emissions as such,
but also to information concerning the medium to long-term consequences of
those emissions on the state of the environment, such as the ejfects of those
emissions on non-targeted organisms. The public interest in accessing
information on emissions into the environment is specifically to know not only

what is, or foreseeably will be, released into the environment, but also, as the

33

Advocate General stated to understand the way in which the environment
could be affected by the emissions in question. 
The respondents submissions
51. In the ?rst instance, counsel for the respondents submits that the questions in
issue in the within proceedings must be Viewed from the standpoint of the protections
afforded to cabinet con?dentiality in Irish law. Counsel contends that there is an
important public interest in protection discussions at Cabinet.
52. An absolute claim to the con?dentiality of such discussions was upheld by the
Supreme Court in AC. v. Hamilton (No. 1) [1993] 2 LR. 250 as derived from Article
28.4.1 and 2 of the Constitution. In that case Finlay CJ. spoke of ?[tjhe necessity for
full, free and frank discussion between members of the Government prior to the
making of decisions, something which appear to be an inevitable adjunct to the
obligation to meet collectively and to act collectively?. He went on to state:
?The implication of this confidentiality from the provisions of the Constitution
to which I have referred is, in my judgment, amply justified by the practical
impossibility of carrying on the fundamental functions of Government in its
absence. Since the sole issue raised before us in this appeal is whether such an
absolute right of con?dentiality exists, I am satisfied that the Court cannot be
concerned with either the relevance of the questions sought to be asked
concerning discussions at Government meetings, nor with any apparent
breaches of such con?dentiality which it is suggested have occurred in either
documentary or oral evidence already afforded to the Tribunal. These matters
would only be relevant if an issue of quali?ed privilege or con?dentiality had

arisen.

53.

54.

34

I would, therefore, conclude that the claim for confidentiality of the contents
and details of discussions at meetings of the Government, made by the
Attorney General in relation to the inquiry of this Tribunal is a valid claim. It
extends to discussions and to their contents, but it does not, of course, extend
to the decisions made and the documentary evidence of them, whether they are
classified as formal or informal decisions. It is a constitutional right which, in
my view, goes to the fundamental machinery of government, and is, therefore,
not capable of being waived by any individual member of a government, nor in
my view, are the details and contents of discussions at meetings of the
Government capable of being made public, for the purpose of this Inquiry, by

a decision of any succeeding Government.

1 would, therefore, allow the appeal and grant to the applicant a declaration
in the terms of this judgment, it not being necessary, clearly, having regard to
the attitude of the learned respondent, to make any form of order of
prohibition. 

Similar sentiments were expressed by Hederman J. where he stated:

?If it were permissible to compel in any circumstances the disclosure of the
content of discussions which take place at Government meetings the executive
role of the Government as envisaged by the Constitution would be
undermined, perhaps even de?stabilised. (at p. 275)

The sentiments in A.G. v. Hamilton are effectively replicated in Article 28.43"

of the Constitution, following the 17th Amendment thereof. It provides:

35

?The con?dentiality of discussions at meetings of the Government shall be
respected in all circumstances save only where the High Court determines that
disclosure should be made in respect of a particular matter 
in the interests of the administration of justice by a Court, or
(ii) by virtue of an overriding public interest, pursuant to an
application in that behalf by a tribunal appointed by the
Government or a Minister of the Government on the authority of
the Houses of the Oireachtas to inquire into a matter stated by
them to be of public importance.?
55. The respondents contend that the principle of cabinet con?dentiality in Irish
law is in no way incompatible with the Aarhus Convention, or the Directive as
implemented in the State. They submit that contrary to the applicant?s arguments,
O?Neill J. did not urge or create exemptions to the obligation to disclose
environmental information over and above those provided for in the Directive. It is
argued that what the learned judge did was to take the view that Cabinet discussions
fell within the scope of Article While it is accepted that Article of the
AIE Regulations transposed Article of the Directive, O?Neill J. was however
satis?ed to ?nd that Article 8(b) of the AIE Regulations expressly provides for an
exception to disclosure on the basis of cabinet con?dentiality. Counsel submits that
having found that discussions of the Cabinet were ?internal communications? under
Article and not ?proceedings? of a public authority under Article 
O?Neill J. correctly concluded that Article 8(b) alone, and not Article or
Article 8(a)(iv) of the AIE Regulations applied to meetings of the Government.
56. The respondents also assert that, from a purposive perspective, how it could it

be that Government discussions would not be internal communications or that they

36

would have lesser status than the internal discussions of another type of public
authority.
57. It is further contended that for the reasons stated in his judgment, O?Neill J.
was also correct in considering that meetings of the Government did not constitute
?proceedings? for the purposes of Article of the Directive.
58. It is thus submitted that the arguments canvassed on behalf of the applicant in
this case have already been correctly rejected by O?Neill J. following his
interpretation of the AIE Regulations and the Directive. In doing so, it is submitted
that O?Neill J. properly applied the law. Accordingly, the respondents submit that the
decision of O?Neill J. provides a full answer to the applicant?s claim. In those
circumstances, they assert that there is no basis upon which the Court should depart
from the judgment in An aoiseach v. Commissioner for Environmental Information.
It is submitted that the applicant has not established any basis upon which the
principle of udicial comity should be departed from and that the applicant has not
achieved the threshold set out in Re Worldport Ireland Limited [2005] IEHC 189 such
as would allow this Court to depart from the ?ndings of O?Neill J.
59. In Re Worldport, Clarke J. addressed the issue of judicial comity in the
following terms:
?It is well established that, as a matter of judicial comity, a judge of ?rst
instance ought usually to follow the decision of another judge of the same
court unless there are substantial reasons for believing that the initial
judgment was wrong. Huddersfield Police Authority v. Watson 94 7] KB.
842 at 848, Re Howard's Will Trusts, Leven Bradley [1961] Ch. 507 at 523.
Amongst the circumstances where it may be for a court to come to

a different view would be where it was clear that the initial decision was not

37

based upon a review of signi?cant relevant authority, where there is a clear
error in the judgment, or where the judgment sought to be revisited was
delivered a su?iciently period in the past so that the juriSprudence of
the court in the relevant area might be said to have advanced in the
intervening period. In the absence of such additional circumstances it seems to
me that the virtue of consistency requires that a judge of this court should not
seek to second guess a recent determination of the court which was clearly
arrived at after a thorough review of all of the relevant authorities and which
was, as was noted by Kearns J., based on forming a judgment between evenly
balanced argument. If each time such a point were to arise again a judge were
free to form his or her own view without proper regard to the fact that the
point had already been determined, the level of uncertainty that would be
introduced would be disproportionate to any perceived advantage in the
matter being reconsidered. 

60. In Kadri v. Government of Wheat?eld Prison [2012] 2 ILLRM 392, Clarke J.

cited his decision in Re Worldport and stated:
court should not depart from a previous decision of the same court
unless there are strong reasons, in accordance with that jurisprudence, for so
doing. (at p. 403)

61. The Re Worldport principles also followed by Hogan J. in A. G. v. Residential

Institutions Board [2012] IEHC 492 where the learned judge considered himself

?e?iectively compelled to follow earlier rulings on the issue of what constituted

?exceptional circumstances under the residential Institutions Redress Board Act

2002.

38

62. It is the respondents? contention that the applicant merely argues that the
O?Neill J. was wrong in An Taoiseach v. Commissioner for Environmental
Information without specifying how the learned judge erred.

63. While counsel acknowledges that one could argue that discussions of the
cabinet could constitute both ?internal communications? and ?proceedings of a public
authority?, for the reasons given by O?Neill ., it is submitted that to equate Cabinet
discussions with the ?proceedings? of a public authority is an arti?cial construct.

64. It is further submitted, however, that if the Court is persuaded that records of
Cabinet discussions are ?proceedings of public authorities?, same are nevertheless
protected from disclosure under Article 4(2) of the Directive and Article 8(a)(iv) of
the AIE Regulations. It is asserted that Cabinet discussions are not caught by the
?emissions override? provided for in Article 4(2) of the Directive and Article 10(1) of
the AIE Regulations. The respondents contend that this is so because the only
information which can constitute ?information on emissions into the environment? is
factual information relating to such emissions. Counsel contends that discussions of
the Cabinet on such information cannot come within that de?nition. It is contended
that this is borne out by the approach of the ECJ in European Commission v. Stichting
Greenpeace Nederland, which considers emissions in the context of hard information.
Counsel suggests that this is a long way from the concept of Cabinet discussions.
Counsel also contends that, as the judgment in A.G. v. Hamilton makes clear, the
protection afforded by Article 28 of the Constitution to Cabinet discussions was to
afford full free and frank discussions to members of the Government ?prior to the
making of decisions?. It is submitted that this is very different to the concept of

?measures policies, legislation, plans programmes? as contained in Article 2 of the

39

Directive all which clearly refer to the outcome, rather than the process, of decision?
making.

Considerations

65. Having regard to the parties? submissions, the ?rst question to be addressed is
whether in An Taoiseach v. Commissioner for Environmental Information, O?Neill J.
was correct in his designation of the discussions of the Cabinet as ?internal
communications?. Having considered the learned judge?s rationale for so ?nding, and
the basis upon which he came to the View that such meetings were not the
?proceedings of a public authority? (emphasis added) I ?nd no basis to depart from
this ?nding. It seems to me that whether one approached the issue from a teleological
approach or otherwise, the rationale of O?Neill J. on this issue cannot be faulted as
either irrational or unreasonable.

66. However, for reasons which I articulate below, I ?nd that I cannot agree with
the learned Judge when, after noting that the AIE Regulations "expressly and
unequivocally" make provision for discussions of the Government in Articles 8(b)
and 10(2) of the AIE Regulations, he opines that ?the only provisions oft/1e 
Regulations] that govern or a?ect cabinet con?dentiality are arts, 8(b) and art. 10(2)
and not art.8(a) (iv) or Before addressing this however, I wish to address the
learned judge?s ?nding that Article 8(b) of the AIE Regulations was not inconsistent
with the Directive because it was in effect a subset (my words) of Article of
the Directive. Overall, and albeit, as counsel for the applicant points out, there is no
express provision in the Directive which provides for Cabinet con?dentiality,

I ?nd no basis to depart from the learned judge?s conclusion that a valid basis for the
genesis of Article 8(b) can be found in Article given that Article 4(1) of the

Directive provides that a Member State may provide for a request for environmental

40

information to be refused in certain circumstances, including those provided in Article
namely, where the request ?concerns internal communications, taking into
account the public interest served by disclosure?. (emphasis added)
67. It is however submitted on behalf of the applicant that if there is to be a refusal
of access to environmental information it must be justi?ed by reference to the
considerations set out in the Directive. It is submitted that this is so not least because
of what is contained in Article itself but more speci?cally given the second
subparagraph of Article 4, which, in part, states that ?[t]he grounds of refusal
mentioned in paragraphs 1 and 2 [of paragraph 4] shall be interpreted in a restrictive
way, taking into account for the particular case the public interest served by
disclosure. In every particular case, the public interest served by disclosure shall be
weighed against the interest served by the refusal.? Counsel for the applicant also
points out that this latter provision is fully replicated in Article 10(3) and (4) of the
AIE Regulations, and indeed the provisions of Article with its in-built
balancing of interests requirement, are replicated in Article of the AIE
Regulations. I accept the applicant?s submissions in this regard.
68. The necessity for such a balancing exercise, as set out in the Directive and the
AIE Regulations, has been recognised by the ECJ in Case Stichting Natur
en Milieu v. Netherlands (16th December, 2010):-

?It is apparent from the very wording of Article 4 of Directive 2003/4 that the

European Union legislature prescribed that the balancing of the interests

involved was to be carried out in every particular case. 
69. Counsel for the applicant also cited the opinion of Advocate General Kokott in
Case Office of Communications v. Information Commissioner (10th March,

2011). Advocate General Kokott opined that, in conformity with the Directive, a

41

balancing exercise had to be done in every particular case and that the exceptions to

the provision of environmental information set out in Article 4(1) and (2) of the

Directive ?are not illustrative but exhaustive?.

70. In its decision of 28th July, 2011, in the same case, the stated:-
public authorities should be permitted to refuse a request for
environmental information only in a few specific and clearly de?ned cases.
The grounds for refusal should therefore be interpreted restrictively, in such a
way that the public interest served by disclosure is weighed against the
interest served by the refusal. 

71. I am satis?ed that that Office of Communications v. Information

Commissioner is authority for the proposition that there can only be reliance (even if

it is to be cumulatively) on the exceptions provided for in the Directive if a balancing

exercise is done in each case.

72. In Case 14, East Sussex City Council v. Information Commissioner (6th

October, 2015), the ECJ emphasised the rights provided for in the Directive stating:-

EU legislature, in adopting Directive 2003/4, intended to ensure the
compatibility of law with the Aarhus Convention by providing for a
general scheme to ensure that any natural or legal person in a Member State
has a right of access to environmental information held by or on behalf of
public 
73. The Court also has regard to Case 10 Krizan v. Slovakia (15th June,
2013), where the ECJ opined that "rules of national law, even of a constitutional

order, cannot be allowed to undermine the unity and e??ectiveness of European Union

law (at para. 70)

42

74. Part of the case made by the respondents is that the applicant should not be
permitted to raise the issue of the review decision-maker?s failure to consider whether
partial disclosure of the requested environmental information should be made. It is
said that this is so in light of the applicant?s failure to raise this issue in the leave
application or in the statement of grounds. The respondents say that no leave was
granted on this point. Over and above this, counsel submits that there is in any event
an unreality to the applicant?s complaint in this regard given the protection afforded to
cabinet discussions in Article 8(b) of the AIE Regulations. While partial disclosure is
provided for in the Directive, in the AIE Regulations and the Aarhus Convention,
counsel argues that this is without prejudice to the con?dentiality of information
exempted from disclosure in these instruments.

75. On the leave issue, I am not persuaded by the respondents? submission. It is
apparent from the Order of Fulham J. that leave was granted on the basis, inter alia,
that the review decision?maker erred in failing to carry out the requisite balancing
exercise. Albeit that with regard to the issue of the balancing requirement the
statement of grounds refers only to a failure to comply with Article 10(3) of the AIE
Regulations and Article 4(2) of the Directive, and does not refer to Article 10(5) of
the AIE Regulations or Article 4(4) of the Directive, which provide, respectively, for
the possibility of partial disclosure, to my mind, this is not a basis for the Court to
accede to the respondents? submission. I accept the applicant?s argument that, in
effect, the question of partial disclosure can be viewed as a subset of the requisite
balancing exercise and, thus, the leave Order is suf?cient to encompass this ground of
chaHenge.

76. To return now to the more substantive arguments in this case and, in

particular, to the judgment of O?Neill J. in An Taoiseach v. Commissioner for

43

Environmental Information. In the ?rst instance, I wish to make clear that insofar as
the learned judge found that Article 8(a)(iv) of the AIE Regulations not applicable to
Government discussions, I cannot disagree with that conclusion. It is not in issue
between the parties in the present case that Article 8(a)(iv) in effect replicates Article
of the Directive, which provides that a request for environmental information
may be refused if the disclosure of such information would adversely affect the
?proceedings" of public authorities. As O?Neill J. found that Government discussions
were not ?proceedings?, and given that this Court has found no basis to disagree with
that conclusion, it follows that Article 8(a)(iv) of the AIE Regulations has no
applicability to Cabinet discussions.

77. However, that being said, as I have already intimated, I cannot agree with the
learned judge?s ?nding that it is only Articles 8(b) and 10(2) of the AIE Regulations
that affect cabinet con?dentiality. It is my view that the provisions of Article 
and (5) of the AIE Regulations also affect cabinet discussions. I hasten to add that the
basis upon which I ?nd myself diverging from the ?nding of the learned judge is
tempered by the fact that in his decision O?Neill J. did not in fact address the question
of the obligation on a public authority to engage in a balancing exercise before
refusing access to environmental information.

78. It is submitted on behalf of the applicant that the overall result of the ?ndings
of O?Neill J. is that there is in the AIE Regulations what counsel describes as a
?category exemption? for Government discussions from the fundamental
requirement to disclose environmental information as provided for in the Directive
which is subject only to limited exceptions, which themselves must be interpreted
restrictively and which demand the requisite balancing exercise to be carried out on a

case by case basis before any refusal. If the AIE Regulations in fact provide for a class

44

exemption for Government discussions, then to my mind the Regulations are
inconsistent with the Directive. Is that however the case? I do not believe it to be so.
79. There is no doubt that, as formulated, Article 8(b) of the AIE Regulations
provides that a public authority, (for the purposes of this case the Government) ?shall?
not make available environmental information ?to the extent that it would involve the
disclosure of discussions at one or more meetings of the 
Counsel for the applicant makes much of the fact that this mandatory ?shall? is
contained in Article 8(b) in circumstances where Article of the Directive, the
provision where both O?Neill J. in An aoiseach v. Commissioner for Environmental
Information and this Court ?nd a legitimate basis for Article provides only that a
public authority is permitted (and not mandated) to provide for exceptions to the
fundamental requirement to disclose environmental information. However, I do not
?nd that the existence of the word ?shall? in Article 8 of the AIE Regulations
necessarily renders Article 8(b) inconsistent with the Directive. I so ?nd because of
what is contained in Article 10(3), (4) and (5) of the AIE Regulations, which
mandates a public authority to:

0 consider each request on an individual basis;

- weigh the public interest served by disclosure against the interest served by

refusal;
- interpret grounds for refusal on a restrictive basis having regard to the public

interest served by disclosure; and

consider the possibility of providing partial information
80. To my mind, there is nothing in the AIE Regulations which immunises records
of Government discussions from the mandatory requirements of Article and

(5) of the AIE Regulations, which provisions replicate the requirements of the

45

Directive. In those circumstances, the Court ?nds no basis to impugn Article 8(b) of
the AIE Regulations of itself as being necessarily contrary to the letter and spirit of the
Directive, once the provision is construed as a subset of Article of the
Directive, and given that pursuant to the provisions of Article 10(3), (4) and (5) of the
AIE Regulations, which faithfully transpose the Directive, a public authority may
refuse access to environmental information only where the requirements of those
provisions have been substantively and procedurally adhered to.

81. In answer to the applicant?s reliance on the ECJ jurisprudence referred to
earlier, counsel for the respondents contends that this case law does not deal with the
concept of ?internal communications? as set out in Article of the Directive.
While it is the case that the ECJ has not speci?cally addressed Article I ?nd
that that does not take from the import of the rulings, particularly in
circumstances where the rulings, in some of the quoted case law at least,
directly address how the exemptions from disclosure contained the Directive must be
addressed by the relevant public authority.

82. The respondents also contend that it is evident from the review decision, and
Mr. Shaw?s af?davit, that individual consideration was afforded to all of the
documents identi?ed in the decision. It is also submitted that insofar as the applicant
complains that the review decision-maker did not weigh the documents against the
public interest in disclosure, the fact of the matter is that the very subject provided for
in Article 8(b) of AIE Regulations, i.e. cabinet con?dentiality, re?ect that any
balancing exercise could only ever come down on the side of the ?rst respondent,
given the strong protection given to cabinet con?dentiality in Irish law.

83. I ?nd that I cannot agree with the reSpondents? submissions in the above

regard. The fact of the matter is that the Directive, and the AIE Regulations, provide

46

for a fundamental right of access to environmental information. If it is to be refused
on the grounds permitted in the Directive, it must be justi?ed via the processes set out
in the Directive, as replicated in the AIE Regulations. The methodological
requirements of Articles 10(3) and (4) of the AIE Regulations are apparent. They
require an engagement by the public authority decision-maker which respects the
underlying purpose of the Directive, as has been emphasised in the jurisprudence of
the 

84. Accordingly, the very fact of the constitutional protection afforded to Cabinet
con?dentiality in Irish law, as re?ected in Article 8(b) cannot, to my mind, be solely
diSpositive of the applicant?s request for access to environmental information. For a
refusal of such information (including information about emissions into the
environment) to be justi?ed, the requisite weighing exercise must be embarked on. It
must not be a formulaic exercise. Any decision on a request for environmental
information must re?ect the fact that the process of engagement with the request
(whatever the ultimate outcome) was conducted in accordance with the letter and
spirit of the Directive.

85. It is the case, and accepted by counsel for the applicant, that neither Article
of the Direction nor Article of the AIE Regulations contain the speci?c
recognition given in the last sentence of the second subparagraph of Article 4 to the
mandatory disclosure of information on emissions into the environment (what counsel
for the applicant described as the emissions override). The emissions override applies
only to requests for environmental information which might otherwise be refused
under Article 4(2) of the Directive, including where the con?dentiality of the
proceedings of public authorities are provided for by law. However, the absence from

Article of the Directive, and Article of the AIE Regulations, of that

47

extra (absolute) imperative to the right of access to information on emissions into the
environment does not, to my mind, translate into a carte blanche for the ?rst
respondent to refuse information on emissions into the environment by sole reliance
on Article 8(b) of the AIE Regulations. As I have stated, before a refusal under Article
8(b) can be justi?ed, the ?rst respondent decision?maker must engage in the requisite
balancing exercise. Given the strong imperative in the Directive towards disclosure
of environmental information, it cannot suf?ce, as occurred in the present case, that
the applicant?s request was re?lsed by reference, inter alia, to Article 8(b) of the AIE
Regulations, without some indication in the review decision as to why it was
considered that the public interest in the con?dentiality of Government discussions
should prevail over the public interest which disclosure of the information would
serve. The provisions of Article 10(3) and (4) of the AIE Regulations cannot be
disapplied solely because the review decision- maker invoked Article 8(b) as a basis
for the re?Jsal of the requested information. I take this view even if the applicant had
not furnished submissions with its application for a review of the original decision.
86. As it happened, the applicant furnished extensive submissions and speci?cally
advised that there were a number of factors which the review decision?maker should
take account of when considering the balancing test required by the AIE Regulations.
The factors relied on included, inter alia, the following:

The now global scienti?c consensus that climate change is real and is caused

by emissions into the atmosphere;
0 The consensus that climate change poses the biggest challenge that humanity
has ever faced;
0 That the Intergovernmental Panel on Climate Change (IPPC) had concluded

that ?human in?uence on the climate syslem is clear, and recent

48

anthropogenic emissions of greenhouse gases are the highest in history?, and

that ?some of these changes have been linked to human in?uences 

That national policy on climate change recognises the threat of climate change

for humanity such that the Department of the Environment has listed the

potential impact on climate change as being:

0

0

Sea level rise

More intense storms and rainfall events

Increased likelihood and magnitude of river and coastal ?ooding
Water shortages in Summer in the east of the country

Adverse impacts on water quality and

Changes in distribution of plant and animal Species on land and in the

oceans.

- That the purpose of the Directive and the Aarhus Convention on which it was

based had to be taken account of as had been con?rmed by the Supreme Court

in NAMA v. Commissioner for Environmental Information.

0 That regard had to be had to the aims of the Directive as re?ected in its

recitals, to wit,

?Increased public awareness to environmental information and the
dissemination of such information contribute to a greater awareness of
environmental matters, a free exchange of views, more effective
participation by the public in environmental decision-making and,

eventually, to a better environment.?

87. It is of course not the function of this Court, on judicial review, to engage in

the requisite balancing exercise or assess the merits of the applicant?s arguments as

49

advanced in the review application. Nor is it the function of the Court to assess the
weight to be given to the respective public interests. That is the function of the
decision-maker and, speci?cally, was the obligation of the review decision-maker as
regards the decision which is sought to be impugned in the within proceedings. To my
mind, there is no way in which it can be established from the review decision whether
the requisite balancing exercise was embarked on in the instant case. In my view, the
absence of any indicator in the review decision that it was carried out suggests that no
balancing exercise, as mandated by Article 10(3) and (4) of the AIE Regulations, was
in fact embarked upon. The same goes for the mandatory obligation under Article
10(5) of the AIE Regulations.

88. Nor can the Court draw comfort from the contents of Mr. Shaw?s affidavit.
Albeit he cites the matters which he took into consideration in coming to his decision,
there is no reference therein to whether in fact the public interest served by disclosure
was weighed against the interest served by refusal, or whether a restrictive approach
was taken to the decision to refuse, as required by the Directive and the AIE
Regulations.

89. For all of the reasons cited above, I am satis?ed that insofar as the review
decision?maker relied on Article 8(b) of the AIE Regulations to refuse the requested
information, that refusal was not in accordance with the letter or spirit of the Directive
or indeed the AIE Regulations and the review decision cannot thus be upheld for this
reason.

Did the review decision-maker?s invoking of Article 10(2) of the AIE Regulations

form a legitimate basis upon which to refuse the requested information?

50

90. The next question to be addressed is whether the review decision can
nevertheless be upheld by virtue of the decision?maker?s reliance on Article 10(2) of
the AIE Regulations.
91. To put Article 10(2) into context, one must look to Article 10(1) of the
Regulations which provides:
?Notwithstanding articles 8 and a request for environmental
information shall not be refused where the legal request relates to information
on emissions into the environment.?
This provision in effect transposes the Speci?c recognition given in the last sentence
of the second subparagraph of Article 4 of the Directive to the mandatory disclosure
of information on emissions into the environment. As already stated, the emissions
override applies only to requests for environmental information which could
otherwise be refused under Article 4(2) of the Directive, including under Article

92. Save for Article it is to be noted that Articles 8 and 9(1) of the AIE
Regulations transpose by and large the provisions of Article 4(2) of the Directive into
Irish law. The Court has already found that as Government discussions do not
constitute ?proceedings?, Article of the Directive or its equivalent, Article
8(a)(iv) in the AIE Regulations, have no bearing on the instant case.
93. I turn now to Article 10(2) of the AIE Regulations which provides:
?The reference in sub-article (1) to information on emissions into the
environment does not include a reference to any discussion on the matters of
such emissions at any meeting of the Government.?
94. Counsel for the applicant contends that the review decision-maker?s reliance

on Article 10(2) of the AIE Regulations is illogical in circumstances where in An

51

Taoiseac/I v. Commissioner for Environmental Information, on which the respondents
rely as a full answer to the applicant?s within challenge, O?Neill J. found Article 8(b)
of the AIE Regulations to be within the scope of Article of the Directive, to
which the emissions override as provided for in the last sentence of the second
subparagraph of Article 4 of the Directive does not in any event apply. It is thus
queried by the applicant as to why it was felt necessary by the decision-maker to
invoke Article 10(2) at all, if the sole purpose of Article 10(2) is to be construed as an
attempt to negate the provisions of the last sentence of the second subparagraph of
Article 4 of the Directive.

95. More fundamentally, however, it is argued on the applicant?s behalf that
ONeill .s ?nding as to the compatibility of Article 10(2) of the AIE Regulations with
the Directive has the effect of providing the ?rst respondent with a class exemption
from disclosure of information concerning emissions into the environment, which, the
applicant submits, is at total variance with the requirements of the Directive and the
jurisprudence of the 

96. A reading of the Articles 8, 10(1) and (2) of the AIE Regulations
suggests to the Court that the objective of Article 10(2) was to immunise Government
discussions insofar as they might constitute the ?proceedings? of a public authority
from the mandatory requirement to disclose information on emissions into the
environment, as provided for in the Directive. In effect, Article 10(2) in the AIE
Regulations appears to be a mechanism to ring fence cabinet discussions (given the
protection afforded thereto in the Constitution) from the provisions of Article 10( 1) of
the Regulations and the last sentence of the second subparagraph of Article 4 of the

Directive.

52

97. In light of the provisions of the last sentence of the second subparagraph of
Article 4 of the Directive, if it were the case that Cabinet discussions constituted
?proceedings? of the Government as the public authority it undoubtedly is, Article
10(2) of the AIE Regulations clearly would not be compatible with the Directive, in
my view. As already stated, the Court has not departed from the ?nding of the learned
O?Neill J. that cabinet discussions do not constitute ?proceedings? for the purpose of
the Directive.

98. Was the the review decision-maker entitled to rely on Article 10(2) as a
ground of refusal by virtue of the fact that in An Taoiseach v. Commissioner for
Environmental Information, O?Neill 1., having found that Article 8(b) of the AIE
Regulations fell within the scope of Article of the Directive and not Article
(a ?nding with which this Court is satis?ed should not be departed from), was
also satis?ed to ?nd no con?ict between Article 10(2) and the Directive? To my
mind, this question must be answered in the following way. I am of the View that the
learned O?Neill ?nding on the compatibility of Article 10(2) with the Directive
poses dif?culty if it was understood by the review decision?maker as somehow
immunising cabinet discussions from the rigors of the Directive, as transposed by
Article 10(3), (4) and (5) of the AIE Regulations. As found by this Court, the review
decision-maker was obliged to have regard to the overarching premise of Article 3(1)
of the Directive, which provides that requested environmental information ?shall? be
made available, and the provisions of Article 4, which refer, to paraphrase Advocate
General Kokott, to the ?exhaustive? basis upon which access to environmental
information may be refused, provided always that the requisite balancing exercise
between the public interest in disclosure and the public interest in refusal is engaged

upon in the manner in which this Court has outlined above.

53

99. Thus, insofar as the review decision-maker may have considered An Taoiseacl?z
v. Commissioner for Environmental Information to be an authority for the proposition
that a refusal of access to Government discussions on emissions into the environment
falls outside of the mandatory balancing requirements provided for in the second
subparagraph of Article 4 of the Directive, as transposed by Article 10(3) and (4) of
the AIE Regulations, and which is also alluded to in Article itself, he was in
error in his understanding in that regard. In all of the circumstances, I ?nd that the
review decision cannot be upheld by virtue of its reliance on Article 10(2) of the AIE
Regulations.
100. In all the circumstances, the applicant?s challenge to the review decision on
the grounds that it was not made in accordance with the State?s EU law obligations is
made out.
Alleged absence of reasons in the review decision
101. I turn now to the other ground upon which the review decision is challenged,
namely the alleged absence of reasons in the review decision. In the ?rst instance, the
applicant asserts that both the original decision and the review decision leave a
number of fundamental issues unexplained, namely:
a. The precise ground under which the Directive was used on behalf of
the ?rst respondent to refuse the information sought, whether Article
4(1) or Article of the Directive. It is submitted that the
reference in the original decision (upheld by the review decision
maker) to An Taoiseach v. Commissioner for Environmental
Information would suggest that it was Article of the Directive
(albeit it is not mentioned) but by the same token the reference in both

decisions to Article 10(2) of the AIE Regulations would suggest that

54

the basis of the refusal might have been Article of the Directive
(Article 8(a)(iv) of the AIE Regulations);

b. Whether, whichever ground of refusal was used, same was interpreted
restrictively, as required by the legislation;

c. Whether the requisite balancing exercise was carried out, and, if so, the
factors considered;

d. Whether each document was examined to see if potentially
controversial or particularly sensitive sections could be redacted thus
allowing the balance to be released to the applicant.

102. As regards the foregoing submissions, these have been largely addressed by
the Court, as should be clear from the earlier part of the within judgment.

103. It is also submitted on behalf of the applicant that the review decision did not
contain any or any adequate reasons, contrary to the requirements of Article 4(5) of
the Directive, as transposed by Article 11(4) of the AIE Regulations, and indeed the
right to reasons as enshrined in the EU Charter and in national law. It is contended
that the absence of reasons in the review decision is especially problematic when the
applicant?s extensive internal review submissions are considered, with which there
was no engagement by the review decision-maker. In particular, it is argued that no
reasons are adduced in the review decision to explain why it was felt appropriate not
to comply with the requirements of Article 10(3) of AIE Regulations.

104. Counsel thus submits that the review decision is thus vitiated by the absence of
reasons. In aid of his submissions counsel cites RPS v. Kildare County Council

[2016] IEHC 13, where Humphreys J. states:

The purpose of a right to reasons

52. The recognition of a legal right to reasons, as a matter of natural justice,

55

constitutional law, under the ECHR, and in EU law, re?ects and serves a

range of important policy objectives.

53. and most immediately, the reasons must enable the tenderer to
know whether it has grounds to challenge the decision by way of judicial

review.

5 4. Secondly, the reasons must enable the court to e?ectively conduct such a

judicial review, if initiated.

55. However in addition to these two primary reasons, there are also a

number of further important justifications for an e?ective right to reasons.

56. Fundamentally, the provision of reasons encourages and supports better
administrative decision making. A decision maker is more likely to come to a
conclusion that is both correct and seen to be correct if he or she is, at all
stages, mindful of the need to explain and support the decision in terms of
articulated reasons. A requirement for publication of reasons enhances the
decision making process, and encourages more robust thought on the part of

the decision maker.

5 7. Furthermore, a requirement of reasons acts as a promoter of
?transparency? in the terms of recital 3 t0 the 1989 directive, or alternatively
phrased, as a signi?cant deterrent to arbitrary administrative action or
malpractice. Unsound or even improper decisions can readily be cloaked with
reassuring bureaucratic language. It is much harder to mask an improper
decision if there is a clear standard for the articulation for sustainable and

objective reasons. 

56

105. The respondents refute the contention that the review decision is devoid of
reasons. They say that contrary to the applicant?s criticisms, reasons were set out in
the review decision in that the requisite provisions of the AIE Regulations as relied on
by the decision-maker were referred to. They rely on the fact that speci?c reference
was made in the review decision to the original decision which itself made speci?c
reference to An aoiseach v. Commissioner for Environmental Information.
Moreover, they point out that the original decision, as referred to in the review
decision, set out the basis for the refusal of each document identi?ed by the decision-
maker as falling within the applicant?s request. Accordingly, the respondents submit
that the broad gist of the reasons for refusal was made available to the applicant,
which was suf?cient. In those circumstances they contend there was compliance with
the legal requirement to give reasons, as set out in Mallak v. Minister for Justice,
Equality Law Reform [2012]3 LR. 297. It is further submitted that the applicant?s
complaints about a dearth of reasons such that it was inhibited in pursuing an appeal
or an application for judicial review is wholly inconsistent with the fact that the
applicant furnished detailed submissions to the review decision-maker and
commenced the within proceedings.

106. As regards the latter argument, I am in agreement with the respondent that the
applicant has not made out a case that it was inhibited from commencing the within
judicial review by reason of any dearth of reasoning in the review decision. However,
I accept the applicant?s argument that the review decision did not comply with the
reasons requirements of Article 4(5) of the Directive as transposed by Article 11(4) of
the AIE Regulations. In light of the adjudicatory processes in which a decision-maker
is required to engage pursuant to Articles 10(3) (4) and (5) and 1 1(4) of the AIE

Regulations, the mere invoking of the statutory ground upon which disclosure of

57

environmental information may be exempted cannot, to my mind, constitute a
suf?cient reason for the refusal. Furthermore, insofar as an argument is made by the
respondents that the applicant could infer the reasons for the decision, I am not
persuaded that that argument should prevail in this case. As stated by Clarke J. in 

Records v. Data Protection Commissioner [2013] 2 IR 169:

?such matters should not be left to inference where there is an express
statutory requirement that reasons be included in the document putting the

measure in force and where the reasons might be open to reasonable doubt. 

I am satis?ed that the reasons ground has been made out to the extent outlined herein.

Summary

107. For the reasons set out herein, the challenge to the review decision has been
made out. Accordingly, I propose to grant certiorari of the ?rst respondent?s review
decision of 271h June, 2016, with the matter to be remitted for consideration in
accordance with the State?s EU obligations. I will hear submissions as to what

declaratory orders (if any) arise on foot of the Court?s ?ndings.



108. At paragraph 5 of the statement of opposition, and in their submissions to the
Court, the respondents contended, insofar as they relied on Article of the
Directive as a ground for refusal, that Government discussions do not constitute
?information on emissions into the environment?. While the relevance of this
argument vis a vis Article and the emissions override does not arise for

consideration since the Court has not departed from O?Neill ?nding that

58

Government discussions constitute ?internal communications?, it remains the case
that what was requested by the applicant on 5th May, 2016 was ?all documents which
show cabinet discussions on Ireland?s greenhouse gas emissions from 2002-2016?,
information not substantially different, save the timeframe, from what was in issue in
An Taoiseach v. Commissioner for Environmental Information. Counsel for the
applicant argues that if, as is now being contended by the respondents, the requested
documents do not concern emissions into the environment (albeit they are essentially
identi?ed as such in the review decision), reasons will have to be given by the review
decision maker in as to why such a conclusion has been reached. I agree with this

submission.