Trends in FOI and AIE in 2021
29 June 2021 | 4 min read ⧖
Significant changes are happening in the areas of Freedom of Information (FOI) and Access to Environmental Information (AIE) law. AIE law, in particular, is undergoing expansion arising from a big increase in Court challenges and decisions. It has also recently been announced that the FOI legislation is due for a review, which could lead to another overhaul just seven years after the FOI Act 2014 was enacted.
Increase in High Court challenges against decision of the Commissioner for Environmental Information
The right to appeal to the High Court against decisions of the Commissioner for Environmental Information (CEI) is provided for in Article 13 of the AIE Regulations 2007 - 2018. This right has existed since the legislation was introduced in 2007. Under Article 13, decisions on AIE requests made by the CEI can be appealed to the High Court on a point of law by the AIE applicant (requester) or by anyone else who is affected by the decision.
However, until 2018, these decisions were rarely appealed to the courts, and there had only been one or two appeals per year in the intervening decade. Since 2018, the number of court challenges has increased significantly, with twelve appeals from 2018 to date. Interestingly, eight of these were made by Right to Know CLG (RTK), a not-for-profit advocacy group concerned with public access to information.
Several of the most recent High Court appeals appear to have been resolved by agreement between the parties, resulting in the CEI’s decision being set aside and remitted back to the CEI for a fresh determination. However, some of the other, well-publicised decisions of the Courts have resulted in a significant expansion of AIE law, both as regards the scope of environmental information and the categories of public authorities that are subject to AIE. For further details, see our recent articles on some of these decisions: Private Energy Generation Projects will now be Subject to the AIE Regulations, Disclosure of Waste Destination Data Upheld by High Court, AIE Update – Broadening the Scope of “Environmental Information”.
This trend of increased Court challenges is likely to be considered as part of the recent public consultation carried out by the Department of Environment, Climate and Communications (DECC) to review the AIE Regulations, which closed on 16 April 2021. The CEI’s submission to the consultation can be viewed here.
As we discussed in further detail here, the catalyst for the consultation was a finding made by the Aarhus Convention Compliance Committee (ACCC) in November 2020, on foot of a complaint made by RTK that the rights of appeal under the Irish AIE Regulations are ineffective. ACCC found that the time taken by the CEI to publish its decisions, and the lengthy delays that can occur in the Irish courts, do not accord with the right of “timely” access to justice under Article 9 of the Aarhus Convention. It was recommended that appeals to the OCEI or the courts are subject to mandatory deadlines and that there are mandatory directions in place to ensure that the request is dealt with in an adequate and effective manner. According to DECC, Ireland has committed to amending the AIE Regulations in response to the findings of non-compliance by the ACCC. If these recommendations are adopted, it is possible that shorter appeal times could also encourage more challenges through the Courts.
FOI legislation to be reviewed
The Minister of Public Expenditure and Reform announced on 17 June 2021 that a review of the Freedom of Information Act 2014, as amended, will shortly commence. The announcement was made at a panel discussion held by the Department of Public Expenditure and Reform on the future of FOI in Ireland. The Minister indicated that the updated legislation will be subject to a public consultation, and that views from the public sector, academia, activists, journalists, and other stakeholders will be sought. The Minister also indicated that the review will “consider how we might find better ways of achieving transparency in public administration.”
The review also coincides with a change in the Office of the Information Commissioner as the current Information Commissioner and Ombudsman, Peter Tyndall, recently announced his plan to retire later in the year.
These developments demonstrate that FOI and AIE law are undergoing a period of significant change. It is important that all organisations who are subject to FOI and/or AIE or who interact with such organisations, as well as FOI and AIE users, keep up to date with these changes, and understand how they are impacted.
 The Aarhus Convention is the international convention which gave rise to the AIE Directive 2003/4/EC. In turn, the AIE Regulations 2007-2018 implement the AIE Directive in Ireland.