Ireland / High Court of Ireland / [2025] IEHC 160
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Ireland / High Court of Ireland / [2025] IEHC 160
Key facts of the case:
On 19 July 2021, Ken Foxe of Right to Know CLG submitted an access to information request to RTÉ seeking three categories of information, including the number of representations RTÉ received regarding its climate change coverage in 2020 and 2021. The court accepted that Mr. Foxe's request was not intended to interfere with journalistic freedom. In response to the request, RTÉ searched two general contact email accounts using the term "climate change," which returned 614 emails. The court accepted RTÉ's evidence that it does not maintain a standalone record of the number of climate change representations received and that creating such a record would require extensive work, though whether this constitutes a disproportionate burden remains a matter for evaluative judgment.
On 17 August 2021, RTÉ issued its initial decision, authored by Mr. Dowling, stating that no documents existed for the first two categories of the request. For the third category, RTÉ released certain documents but explicitly noted this was done on a pragmatic basis and not pursuant to any legal obligation, emphasizing that the release did not create precedent and reserving all rights regarding the application of the 2007 regulations. Mr. Foxe subsequently requested an internal review of RTÉ's decision. The matter then proceeded to court, which referred questions to the CJEU for a preliminary ruling, with the third question specifically concerning whether Article 47 of the Charter (right to an effective remedy) can be invoked to ensure access to information procedures are timely and expeditious without delay.
Key legal question raised by the court:
The High Court considered three legal questions to ascertain for the first-instance court to apply the appeal. The three legal questions are:
- Is the RTE considered a public authority in relation to all its functions particularly, broadcasting, right to free expression and journalism within the remits of EU law.
- Whether EU law enables that public bodies to produce material form (extensive) access to information when requested
- Whether the national courts should align with EU law and Article 47 of the Charter to ensure access to information is provided in an expeditious and timely manner.
Outcome of the case:
The High Court referred the three questions to the CJEU for a preliminary ruling to clarify the above questions.
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Paragraphs referring to EU Charter
79. The third question is:
Does Article 6(1) and/or (2) of Directive 2003/4 and/or Article 9(1) and/or (4) of the Aarhus Convention and/or Article 47 of the EU Charter of Fundamental Rights insofar as the foregoing relate to the requirement that remedies be timely and/or expeditious and/or effective have the effect that a court acting under Article 6(2) of Directive 2003/4 and/or Article 9(1) and/or (4) of the Aarhus Convention and/or Article 47 of the EU Charter of Fundamental Rights is entitled or required to interpret national law to the maximum extent possible (and/or to disapply any national rule of procedure that would preclude such a course of action) so as to enable the court to make a final decision on the request to which the review procedure or judicial procedure relates, including by coming to findings of fact and evaluative judgements after making a full and ex nunc examination of all the relevant elements of fact and law submitted by the parties, in circumstances where remittal of the matter to the public body or to a subordinate review body for further fact-finding or evaluative judgements or a fresh decision would be likely in the view of the court to occasion further delay which could jeopardise the timely and/or expeditious finalisation of the outcome of the request for information?
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83. The State's proposed answer is that the requirement that remedies be timely and/or expeditious, whether pursuant to Article 6(1) and/or Article 6(2) of Directive 2003/4; Article 9(1) and/or Article 9(4) of the Aarhus Convention; and/or Article 47 of the EU Charter of Fundamental Rights, does not have the effect that a national review body and/or a court acting under Article 6(2) of Directive 2003/4; Article 9(1) and/or Article 9(4) of the Aarhus Convention; and/or Article 47 of the EU Charter of Fundamental Rights is entitled or required to interpret national law such as to enable it to make a final decision on the request to which the review procedure or judicial procedure as the case may be relates; and that this is so even in circumstances where remittal of the matter for either further fact-finding or a fresh decision is likely to result in additional time being expended consequent on the remittal. For the avoidance of doubt, the State parties do not accept that additional time being expended consequent on an application pursuant to Directive 2003/4 being remitted would or would be likely to contravene EU law whether in the manner posited in the question, i.e. by failing to ensure an outcome to the request for information in a manner that is timely and/or expeditious, or at all.
84. The referring court's proposed answer is Yes. It is inherent in the very nature of a right to access to information that it must be effective in an expeditious manner, because information quickly becomes out-of-date and is significantly more meaningful to a requester and to the public generally when it is current. A laborious procedure where all factual findings and evaluative judgements can only be made at first instance, and then appealed, so that remittal following legal clarifications is inevitable, would create a significant prospect of a breach of the requirement of expedition, which would be for the national court to determine on specific facts. If the national court (or indeed, logically, a review body) were to come to the view that a remittal for further fact-finding or evaluation would cause delay in breach of this provision, then the court should be entitled to find the facts itself and/or make evaluative judgements, after making a full and ex nunc examination of all the relevant elements of fact and law submitted by the parties, even if (as here) a national rule of procedure would preclude it from doing so (the rule being the judgment of the Supreme Court in Raheenleagh, already referred to). Such an answer would be a further example of the broader principle that a court can determine a matter itself if remittal would give rise to a breach of EU law, for example due to a previous failure to implement the court's judgment following a previous remittal: judgment of 29 July 2019, Alekszij Torubarov v Bevándorlási és Menekültügyi Hivatal, C-556/17, ECLI:EU:C:2019:62 (Grand Chamber). That case illustrates the broader principle but does not exhaust it. The commissioner's complaint that the court deciding the matter could give rise to possible appeal is illusory because such appeal can happen anyway, with the ultimate outcome being remittal to the commissioner for the process to begin again, rather than resulting in a final order.
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Paragraphs referring to EU Charter (original language)