Case Summary and Outcome

Irish national Stephen Minch made a request to Ireland Department of Communications, Energy and Natural Resources to access an analysis report that addressed a series of cost implications for the government in order to create national high-speed broadband services. The Department rejected his request, which was later affirmed by the Commissioner for Environmental Information, on the ground that the information contained in the report was not “environmental” within the European Communities Regulations 2007 on Access to Information on the Environment, incorporating the E.U. Council Directive 90/313/EEC.

The High Court of Ireland set aside the Commissioner’s determination. Through the use of purposive reasoning in interpreting the Regulations, the Court rejected the Commissioner’s narrow reading and held that the report was capable of being environmental information because its cost-benefit analysis could inform or impact the decision-making of the government with respect to its implementation of national broadband services.

Facts

Several consultants prepared a report entitled “Analysis of Options for Potential State Intervention in the Role out of Next Generation Broadcast” for Ireland Department of Communications, Energy and Natural Resources. The purpose of this cost-benefit analysis report was to assess options available to the government in achieving a new high-speed broadband service across the country.

Stephen Minch later sought to access the report by submitting a request. In July 2013, the Department refused to provide the report, reasoning that the information sought was not within the European Communities Regulations 2007 on Access to Information on the Environment. The Regulations require the government to make environmental information publicly available upon request, subject to a number of exceptions. Article 3(1) of the Regulations defines, inter alia, environmental information as:

“[A]ny information in written, visual, aural, electronic or any other material form on: . . . (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment, (c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors, (d) reports on the implementation of environmental legislation, [and] (e) cost-benefit and other economic analysis and assumptions used within the framework of the measures and activities referred to in paragraph (c) . . . ”

On appeal, the Commissioner for Environmental Information affirmed the Department’s findings, stating that the report was merely about “the cost implications for the state of deploying various types of NGB [(next generation broadband)] infrastructure to areas underserved by the private sector.”¹ It further noted that the purported measures in the report would not likely affect the environmental elements or factors enumerated under the Regulations, and therefore, the report did not qualify as environmental information.

Minch then filed an appeal to the High Court of Ireland in February 2015.

1. Minch v. Commissioner for Environmental, Case No. 2015/50 MCA, para. 24 (IEHC 2015). ↩

Decision Overview

Based on the Commissioner’s reasoning, the High Court addressed two issues: “(1) whether the link between N.B.P. and an effect on the environment was ‘simply too remote’ to enable the N.B.P. to be characterized as environmental information and (2) whether the [r]eport could not therefore be environmental information.”¹

Minch argued that he was entitled to obtain the report because broadband transmitters produce radio wave emissions, capable of adversely affecting the environment. He also argued that the power infrastructure needed to provide the broadband service would inherently involve different types of emission, such as burning fossil fuels and radio wave radiations. According to him, “any decision with regard to the recommendation of one technology over the other could have consequences for emissions, and the choice is not environmentally neutral.”²

The Court first noted that what falls within the scope of “environmental information” is a matter of law, which was undisputed by the parties. Still the Department was of the opinion that the type of information entitled to public disclosure must be on various matters set out in Article 3(1) of the Regulations; it rejected the notion that Regulations permit a more broad interpretation. The Court disagreed. It first referred to the European Court of Justice’s view in Mecklenburg v. Pinneberg³ that “the Community legislature intended to make that concept a broad one, embracing both information and activities relating to the state of those aspects.” The Court then discussed the purposive approach used by the Supreme Court of Ireland in NAMA v. Commissioners for Environmental Information. In that case, the Supreme Court noted that a statutory instrument introduced into Irish law should not be interpreted “solely through the prism of national law” and “the courts [must] approach the interpretation of legislation in implementing a directive, so far as possible, teleologically, in order to achieve the purpose of the directive.”⁴ In light of that, the High Court cited the Aarhus Convention, which encourages “widespread public awareness of, and participation in, decisions affecting the environment and sustainable development.”

Furthermore, the Court held that based on the purposive interpretation, the wordings of “cost-benefit and other economic analysis and assumptions” under Article 3(1)(e) were meant to capture reports and models that “informed or were capable of informing either a programme or plan or administrative measures, not merely information, which did as a matter of fact actually inform the decision maker.”⁵ The Court also was of the view that the word “use” within Article 3(1)(e) does not import a narrow approach. Instead, it includes reports and models that are likely to affect decision-making.

Based on the foregoing analysis, the High Court of Ireland set aside the Commissioner’s determination and remanded the case to the Commissioner for further proceedings in accordance with its rulings.

1. Minch v. Commissioner for Environmental, Case No. 2015/50 MCA, para. 34 (IEHC 2015). ↩

2. Id. at para. 35. ↩

3. Case No. C-321/1996. ↩

4. Id. at para. 10. ↩

5. Minch, at para. 56. ↩