What you need to know
- The AIE Regulations define “environmental information” broadly, and go so far as to capture non-environmental information relating to, or “on”, a measure or activity that is capable of affecting the environment.
- This has resulted in requests being made to access information that bears only a tenuous connection to measures affecting, or capable of affecting, the environment.
- The Court has recently endorsed the application of a “remoteness test” as a means of identifying the dividing line between information that is and is not “on” a measure affecting the environment.
- The identification of a merely tangential or indirect relationship between the information and the measure will not be sufficient to bring that information within the scope of the AIE Regulations.
Introduction
Under the European Communities (Access to Information on the Environment) Regulations 2007 (AIE Regulations), and the EU Directive[1] which they transpose, members of the public may seek access to “environmental information” held by, or for, public authorities. “Environmental information” is defined broadly, and includes information “on” measures affecting or likely to affect:
- The state of elements of the environment, including air, atmosphere, soil and water, or
- Factors affecting or likely to affect those elements, like energy, noise, radiation, substances, and waste.
In Electricity Supply Board v Commissioner for Environmental Information,[2] the Court of Appeal recently considered whether a transcript of a property arbitration hearing concerning an overhead electricity line constituted information “on” a measure affecting the environment.
Background
An Bord Pleanála authorised the construction of an overhead electricity line in Cork in October 2012. To construct the line, the Electricity Supply Board (ESB) sought to exercise its right to a wayleave across private land under the Electricity (Supply) Act 1927. The affected landowners sought compensation, which is provided for under the Act. As compensation could not be agreed, the matter was referred for arbitration under the statutory scheme.
A transcript of the arbitration hearing was prepared on behalf of the ESB. The transcript recorded the parties’ arguments but not the arbitrator’s decision. These hearings are open to the public, but only the parties are entitled to make representations.
Request for access
Right to Know CLG (RTK) sought access to the transcript from the ESB under the AIE Regulations.
This was the second such request for access. The Commissioner for Environmental Information had previously found, in the context of the first request, that the transcript did constitute “environmental information”. However, the applicant was permitted only to view the text, and not to copy it, in order to protect the intellectual property rights of the transcript’s author. The ESB appealed this decision to the High Court, which overturned the Commissioner’s finding that the transcript constituted “environmental information”.
In this case, the ESB again refused RTK’s request, on the basis that:
- RTK was incorrect in its assertion that the entire manuscript constituted “environmental information”, and
- Even if it was “environmental information”, disclosure would infringe the intellectual property rights of the company that had prepared the transcript.
The Commissioner again overturned the ESB’s decision. In his view, the transcript qualified as “environmental information” due to the compensation procedure’s integral role in the placement of electricity lines. The Commissioner also overturned his own previous conclusion that the transcript was protected by copyright, thus leaving no reason to refuse disclosure.
The ESB appealed to the High Court, which rejected the conclusion that the transcript constituted environmental information. That decision was, in turn, appealed by the Commissioner to the Court of Appeal.
Remoteness
The Court of Appeal noted previous CJEU[3] decisions which:
- Acknowledged the need to adopt a broad interpretation of the term “environmental information” in order to give effect to the objectives underlying the Directive; but also,
- Recognised that the Directive had not been intended to give rise to a general right of access to “all information…which ha[d] a connection, however minimal, with one of the environmental factors mentioned"[4]
Similarly, in Henney,[5] the English and Welsh Court of Appeal (EWCA) concluded that:
- A literal reading of the (equivalent UK) legislation would result in any information related to a measure affecting the environment falling within the scope of an access request.
- The legislation had to be interpreted purposively, having regard to the objectives of the Aarhus Convention: enabling effective participation in environmental decision-making, and contributing to awareness of environmental issues and to a better environment.
- A line should be drawn between information which was “incidental” to a measure capable of affecting the environment, access to which would not advance the purpose of the legislation, and information which was “integral” to the measure affecting the environment, access to which would advance that purpose.
In approving and applying these principles, the Court of Appeal held that information exists on a sliding scale. At one end is information integral to a measure. At the other is purely incidental information that is too remote. In assessing where on that sliding scale specific information might fall, the Court of Appeal held that the High Court had been correct to look to the relationship between the information and “any real and substantial possibility of an environmental impact”.[6] Information more closely aligned to the environmental impact of a relevant measure will fall further towards the “integral” end of the scale and is more likely to be classed as “environmental information”.
The transcript
The Court of Appeal concluded that the connection between the transcript and electricity line was too remote for the transcript to qualify as “environmental information”. Its release would not contribute to the public’s understanding of, or participation in, the development of electricity infrastructure. In reaching this conclusion the Court noted that:
- The compensation process could only commence after permission for development of the electricity line had been granted.
- The public could not make any representations to an arbitrator on the issue of compensation.
- The arbitrator had no authority to adjust the placement of the electricity line.
- The process was concerned solely with the assessment of the reduction in the value of land. This was not an environmental issue, and had no impact on the extent to which the electricity line affected the surrounding environment.
- The transcript gave no indication of the actual amount of compensation, recording only the arguments made. It would not contribute to the public’s understanding of the cost of electrical infrastructure development.
Comment
The Court of Appeal’s ruling reaffirms the applicability of the remoteness test applied in the High Court decision of Mr Justice Heslin appealed against. The decision provides useful guidance for public authorities in determining when information that is not itself “environmental”, but relates to a relevant measure, constitutes information “on” that measure and therefore falls within the definition of “environmental information” under the AIE Regulations.
Also worth noting are the Court of Appeal’s findings on:
- What constitutes a “point of law” - the appeal to the Court from a decision of the Commissioner for Environmental Information being one on a point of law only. In the absence of any significant factual disputes between the parties, the Commissioner’s conclusion on the legal status of the transcript was an essentially legal finding. Accordingly, it did not amount to a finding of fact to which the Court should defer, and the Court was entitled to interfere with it on appeal.
- The requirement to give reasons. The Commissioner for Environmental Information had entirely reversed his previous finding on the copyrightable nature of the transcript. In such circumstances, he was obliged to provide a reason for this change in position. The mere recitation that the Commissioner was not bound by his previous decisions was not an adequate reason.
For more information on the impact of this decision on your organisation, please contact a member of our Public, Regulatory & Investigations team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
[1] Directive 2003/4/EC.
[2] [2026] IECA 57.
[3] See Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Case C-316/01), Fish Legal v Information Commissioner (Case C-279/12).
[4] See Glawischnig (Case C-316/01).
[5] Business, Energy and Industrial Strategy v Information Commissioner & Henney [2017] EWCA Civ 844.
[6] Redmond v Commissioner for Environmental Information [2021] 3 IR 695.