About this case:

• Citation:
  [2022] IECA 210
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Caroline Costello

Delivering judgment in the case, Ms Justice Caroline Costello held that the company did not satisfy the test for a public authority that was subject to information disclosures based on the categories contained in Council Directive 2003/4/EC on public access to environmental information. Accordingly, the court overturned the High Court on the issue.

Background

Raheeleagh Power DAC was a private company which operated a wind farm in County Wicklow. The farm was designed to generate and sell electricity to suppliers, who would then sell electricity to consumers. RPD was originally a joint venture established between ESB Wind Development Limited and Coillte Teoranta. However, in 2018, Coillte sold its 50 percent shareholding to another private entity, GR Wind Farms 1 Limited.

In February 2017, Right To Know sought access to certain environmental information held by Coillte in relation to the wind farm. Part of the request was granted but Coillte refused access to some information because it was held by RPD. As such, Right To Know made a further request to RPD for the information in May 2017.

RPD adopted the position that it was not a public authority within the meaning of the Access to Information on the Environment Regulations and therefore was not required to provide the information to Right To Know. An appeal was lodged with the Commissioner for Environmental Information, who affirmed that RPD was not a public authority under the AIE Regulations or the Directive.

Right To Know pursued an appeal to the High Court from the Commissioner’s decision, in which the High Court held that RPD was a public authority under the relevant legislation. The decision was appealed to the Court of Appeal by RPD.

The principal issue before the court was the definition of “public authority” in the legislation. Article 2(2) of the Directive stated that a public authority was a) government or other public administration, b) any legal entity performing public administrative functions under the national law, including specific duties, activities or services in relation to the environment and c) any legal entity having public responsibilities of functions, or providing public services, relating to the environment under the control of a body falling within a) or b).

Since 2000, the generation and sale of electricity in the Irish market was fully open to competition and licences were granted to operate in the market by the Commission for the Regulation of Utilities. Further, consumers were levied with a tariff (REFIT) which supported the generation of renewable energy through subsidisation. Electricity generators were entitled to a minimum unit price for renewable energy from the supplier, which supplier then received support payments through REFIT.

In evidence before the High Court, RPD stated that it enjoyed the same powers and functions as when Coillte was a 50 percent shareholder and the joint venture with Coillte did not confer any special status or power on RPD as a private venture. In response, Right To Know submitted that RPD was essentially a special purpose vehicle to facilitate the statutory functions of the ESB and Coillte. Since RPD was licensed to generate electricity, it was therefore said to be exercising a public administrative function under national law.

It was also claimed that RPD was entrusted with the performance of public services, which would satisfy the definition of public authority (see Case C-279/12, Fish Legal and Shirley v. Information Commissioner). Right To Know relied on RPD’s licence to generate electricity and its acceptance into the REFIT scheme in this regard.

Finally, it was said that RPD was under the control of the State as it was owned by Coillte and the ESB. Accordingly, Right To Know submitted that RPD fell within the definition of categories b) and c) of the Directive.

Court of Appeal

The court began by outlining the relevant case law on access to environmental information. It was noted that Fish Legal identified that the concepts of “public administrative functions” and “control” under Article 2(2) of the Directive must be given autonomous and uniform interpretation.

Further, Fish Legal established that “only entities which, by virtue of a legal basis specifically defined in the national legislation which is applicable to them, are empowered to perform public administrative functions are capable of falling within” category b). This test was described as a functional test. Further, the test for “control” was whether a commercial entity acted in a genuinely autonomous manner when performing functions in the environmental field.

Ms Justice Costello also outlined the case law on public authorities from the Supreme Court, which followed the decision in Fish Legal (see The National Asset Management Agency (NAMA) v. The Commissioner for Environmental Information [2015] 4 IR 626; Right to Know v. Commissioner for Environmental Information [2022] IESC 19). In particular, it was noted that access to information was limited to institutions “before which decision-making effectively takes place”.

Applying the law to the case, it was held that RPD was not entrusted with a public function simply because it had been granted a permission to compete with other licence holders. Further, it was said that, due to market competition since 2000, the act of generating electricity was no longer the provision of a public service, even if electricity was an essential utility.

While the court held that RPD was vested with special powers on foot of the licence, it did not make any material difference to the outcome of the case. The court held that RPD was not under the control of a State body within the meaning of category c). There was insufficient evidence before the High Court to determine that RPD did not act in a genuinely autonomous manner, the court said.

The control test was not satisfied by a mere potential for influence. An actual impact on a company’s decision-making was required for the test to be satisfied (see Fish Legal (Upper Tribunal) [2015] UKUT 52).

Conclusion

It was held that RPD was not a public authority within the meaning of Article 2(2) b) and c) of the Directive and RPD’s appeal was therefore allowed. As such, it was not required to provide RPD with the requested information.

Right To Know CLG v. Commissioner for Environmental Information [2022] IECA 210