High Court: Reference to CJEU on handling of requests for environmental information by anonymous or pseudonymised applicants

About this case:

• Citation:
  [2023] IEHC 640
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Richard Humphreys

Delivering judgment for the High Court, Mr Justice Richard Humphreys noted that “subject to any further clarification of this issue by the CJEU, a judge can make a reference that might be seen to suggest a different answer than that arrived at by a higher domestic court. She is entitled to a systemic acknowledgement of a court or tribunal’s freedom to do so without being stigmatised as acting inappropriately.”

Background

Between March and May 2022, Coillte was bombarded with anonymised requests for environmental information, mostly in the names of American television and film characters. Having taken steps to determine the identity of the applicants, Coillte formed the opinion that all such requests emanated from one source. 

Coillte averred that the impact on its operations was serious, resulting in a significant expenditure of management time and resources, and requiring an increase in staff numbers. Coillte sought confirmation of legal name and address from the applicants, and with no further information forthcoming, the requests were deemed invalid.

The anonymous applicants then requested that Coillte would carry out an internal review. Those requests were also deemed invalid in the absence of confirmation of name and address. 

81 of the rejections were appealed to the Commissioner by the applicants, and in a decision delivered on 29 August 2022, the Commissioner found that he could consider the appeal and found that Coillte was not justified in treating the requests as invalid under article 6(1)(c) of the European Communities (Access to Information on the Environment) Regulations 2007 - 2018.

The Commissioner found that Coillte was not entitled to seek confirmation of the applicants’ names and addresses, as such a requirement would make the procedure for making an environmental information request more onerous and could dissuade potential requesters.

Coillte appealed to the High Court on a point of law under article 13(1) of the 2007 Regulations, seeking an order setting aside the decision, a declaration that the Commissioner erred in accepting and considering the purported appeals and/or that he had no jurisdiction to do so, and a declaration that the Commissioner erred in his construction of article 6(1) of the 2007 Regulations and/or that Coillte was entitled to require confirmation or the names and addresses of the requesters as a necessary requirement for a valid request.

The High Court

Mr Justice Humphreys considered that the Aarhus Convention, the 2007 Regulations and Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC were relevant to deciding the appeal.

Noting the first principal ground of appeal, that an appeal to the Commissioner only arises from the refusal of an application rather than from a rejection of an application in limine as invalid, the Court considered that in Right to Know CLG v An Taoiseach & Ors [2023] IECA 68, the Court of Appeal treated a rejection in limine as an appealable refusal.

Highlighting the obiter views in Minister for Justice v O’ Connor [2015] IECA 227 that a lower court should not make a reference to the CJEU where a higher court has already opined unless there are wholly exceptional circumstances, Humphreys J considered that the EU law position seemed to be “that if a domestic judge in any EU member state thinks that a point so decided really isn’t acte clair, she does have a freedom to refer it…”

Accordingly, the Court proposed a first question to be referred to the CJEU: whether EU law has the effect that national courts are obliged to disapply any rule or practice of domestic law that would discourage or inhibit a court from referring a question and proposing answers to the CJEU?

Humphreys J then noted the arguments of the parties, with Coillte contending that a request for an administrative appeal only means a valid request, that an applicant only means an identified applicant, and that the provision for the rejection of manifestly unreasonable complaints allows requests to be made to ascertain the identity of applicants. The Commissioner rejected each of Coillte’s contentions.

The Court then proposed two further questions: Whether the word “request” in Article 6(1) of the Directive and read in the light of the Aarhus Convention means only a request that is valid by reference to the Directive and by reference to the transposing domestic law, and whether the word “applicant” in Article 2(5) of the Directive read in light of the Aarhus Convention means a natural or legal person identified by their actual name and/or a current physical address, or does it include an anonymised/pseudonymised person whose contact details are identified by email only?

Turning to Coillte’s second principal ground of appeal, that the Commissioner erred in holding that Coillte could not seek confirmation of names and addresses, Humphreys J considered that a question arose as to “how much scope” the domestic legislature has to make provision for practical arrangements in implementing the Directive.

Accordingly, the Court proposed a fourth question to the effect that if an applicant is not required by virtue of the Directive to furnish their actual name and/or current physical address when making a request for environmental information, does Article 3(1) and/or (5)(c) of the Directive read in the light of the Aarhus Convention preclude national legislation from requiring an applicant to furnish those details?

The Court proposed a fifth question to the effect that if the Directive does not require an applicant to furnish their actual name and/or address, does the Directive read in light of the Aarhus Convention have the effect that where a public authority reasonably questions the legitimacy of the identity provided by the applicant, that authority is prohibited from seeking confirmation of information for the purpose of verifying the applicant’s identity, and not for the purpose of determining the applicant’s interest, even where the actual name and/or address could allow an inference as to the interest, if any, of the applicant?

Humphreys J decided that a sixth question was necessary in light of Grange v. Information Commissioner [2022] IECA 153 and Mr Q and ESB Networks Limited, Case CEI/15/0029: If the answer to the fourth question is “no”, does Article 4(1)(b) of the Directive read in light of the Aarhus Convention have the effect that a public authority is prohibited from seeking confirmation of an applicant’s name and/or address to determine whether a request is manifestly unreasonable by reference to the volume, nature and frequency of requests made by that applicant, and not to determine the applicant’s interest, even where the actual name and/or address could allow an inference as to the interest, if any, of the applicant?

Conclusion

Finding that there was an absence of European or international material before him that could resolve these issues such as to eliminate doubt, Humphreys J decided that the questions were appropriate for reference to the CJEU.

Coillte Cuideachta Ghníomhaíochta Ainmnithe v Commissioner for Environmental Information [2023] IEHC 640