Trends in FOI and AIE in 2021

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.[2] 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.