In 2012, Ireland ratified the Aarhus Convention, which focuses on three pillars: access to information, public participation in decision-making, and access to justice in environmental matters. These pillars are incorporated into EU law under the public access to environmental Information Directive (2003/4/EC), which Ireland transposed into Irish law under the European Communities (Access to Information on the Environment) (AIE) Regulations 2007 (as amended).
Broadly, the AIE Regulations require a public authority to make available environmental information held by or for the authority to a person who has submitted a request for that information. A public authority must refuse the request on certain grounds and may refuse the request under other grounds set out in the legislation. The person who requested the environmental information can appeal the public authority’s decision to an independent person within that public authority. That independent review can be appealed to the Office of the Commissioner for Environmental Information (OCEI), and the OCEI’s decision can be challenged in the High Court.
In 2020, the Aarhus Convention Compliance Committee (ACCC) found, following a case brought by Right to Know, that appeal decisions by the OCEI and High Court were taking too long and were not providing “timely” access to justice. This decision, and the desire to consolidate regulations that have been amended three times since 2007, have now led the Department of the Environment, Climate and Communications (DECC) to open a formal consultation on the AIE Regulations. The consultation does not offer suggested changes to the Regulations. It simply asks for views by 5pm on 16 April 2021 on what works and what needs to change.
The Commissioner for Environmental Information, Mr Peter Tyndall, has suggested some issues which may need to be addressed. In the OCEI 2019 Annual Report, Mr Tyndall said he was not satisfied with the average time of around 8 months for an OCEI appeal to be closed. Mr Tyndall suggested that Guidance Notes for his staff could reduce the timescales but OCEI did not have the resources to deal with the current case load and to prepare these notes. In a speech in November 2018, Mr Tyndall also suggested clarity was required on the burden of proof regarding refusals by public authorities and consideration of the possibility of aligning the AIE Regulations with the Freedom Of Information Act 2014.
Clarity in the interpretation of the Regulations has been an ongoing issue, with almost 1 in 5 OCEI decisions in 2019 being appealed to the High Courts. A significant recent case from January 2021 found that Independent Power Producers constitute public authorities for the purposes of the AIE Regulations. Other aspects of the AIE Regulations which have been subject to appeal, include the interpretation of the definition of environmental information, the ability to charge fees for providing the information, and the carrying out of adequate searches by public authorities.
It is likely following the ACCC decision that the AIE Regulations will be amended requiring review decisions to be made in a timely manner. However, this legislative change does not deal with the causes of such delays. For example, there is a lack of clarity provided to public authorities on previous decisions of the OCEI and the High Court regarding the proper application of the Regulations in practice. The OCEI has confirmed it will prepare practical guidance once it has the resources available. Hopefully this guidance will be publicly available. Further, the High Court’s decisions are providing some much-needed clarity on issues and this should help reduce the number of appeals reaching that stage. That said, awaiting Court decisions for guidance is an inefficient method of reducing the case load.
This DECC Consultation provides a timely opportunity for not only those who request environmental information, but for those who have to deal with such requests, to suggest improvements based on their experiences to date. While Independent Power Producers may not yet have much experience of dealing with AIE requests, this consultation is timely in view of the recent High Court decision which brings them within the scope of the Regulations. The deadline is 5pm on 16 April 2021, if you need any assistance with your response please do get in touch.
For more information and expert guidance in all related matters, contact a member of our Energy team.
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