An expanded definition of environmental information? Minch v Commissioner for Environmental Information [2016] IEHC 91

Abstract

A recent Irish High Court decision has overturned a decision of the Commissioner for Environmental Information not to grant access to a report on broadband networking infrastructure on the grounds that the document sought was too remote from environmental decision-making. The Commissioner had held that information must fall within one of the categories in Article 3(1) of the European Communities (Access to Information on the Environment) Regulations 2007–2014 in order to constitute environmental information, not simply relate to one of them. The High Court held that this ‘remoteness’ approach was not the correct test as it failed to take into account that Article 3(1)(c) includes measures, programmes, and policies which are likely to affect elements of the environment, not just those which have affected those elements, but did not provide an alternative test. Irish practice in this regard may therefore be following that of England and Wales, which may not be welcome as it undermines the Freedom of Information regime. The decision may make some difference in practice, but it is too early to be certain. While some had hoped that this decision would provide clarity on the definition of environmental information, this will have to await at least the reconsideration by the CEI of the request which gave rise to this case, and possibly further High Court appeals.