Consultation on Legislation Regulating Access to Information on the Environment

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.