NAMA submission

I have made an additional submission to the Office of the Commissioner for Environmental Information in relation to NAMA’s status as a public authority for the purposes of the European Environmental Information Regulations:

NAMA have claimed that they are not a public authority for the purposes of the Directive. However in examining the decisions of the UK Information Commissioner I believe there are valid comparisons as to what constitutes a public authority. I will refer specifically to three cases of the UK Information Commissioner.

In FER0265609 the UK Information Commissioner decided that PhonePayPlus, a consumer protection body, formally designated by OFCOM to be the body responsible for regulating ‘Controlled Premium Rate Services’ was a public authority. It is a company limited by guarantee and a not for profit organisation.

PhonepayPlus did not accept that it was a public authority for the purposes of regulation 2 (2) of the Environmental Information Regulations. The transposition of the Directive has a specific element, Section 2 (2) (c): “any other body or other person, that carries out functions of public administration;”

In reaching its decision, the UK Information Commissioner took account of Parochial Church Council for the parish of Aston Cantlow and Wilmcote with Billesley v Wallbank and Another [2003] UKHL 37 and [2004] A.C. 546 in trying to define what factors must be considered:

Factors to be taken into account include the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service.

The Commissioner then considered each of these as basis for the decision:

The extent to which the body is publicly funded
The extent that the body is exercising statutory powers
The extent that the body is taking the place of central government
The extent that the body is providing a public service
The degree of Government control
The performance of regulatory functions

The next part of his analysis is to consider that whether those public functions are administrative. Only if they are will the organisation be covered by regulation 2(2)(c). This specifically relates to the administrative component of the Regulations. The Commissioner notes:

Administration can be regarded as being a component of executive power, distinct from both legislative and judicial powers. Administration can be visualised as the managing of power within the state apparatus and the achievement of a non legal goal through reliance on specific legal powers.

The Commissioner believed it can be described on the basis of relative characteristics:
(i) Administration is a ‘social arrangement.’
(ii) It is concerned with the public interest.
(iii) It is above all an active arrangement aimed at the future.
(iv) Administration takes ‘concrete measures for the regulation of individual cases’.

The Commissioner took account of O. Hood Phillips & P Jackson, Constitutional and Administrative Law(6th ed, London 1978) pp 50 et seq:

The executive or administrative function is the general and detailed carrying on of government according to law, including the framing of policy and choice of the manner in which the law may be made to render the policy possible.

The Commissioner also referenced Port of London Authority v Information Commissioner (EA/2006/0083) (‘Port of London’) in the following way:

1. The Authority has statutory duties.If the Authority did not fulfil those duties Government would need to task another organisation with them.
2. The Authority has to account to Parliament as well as to its shareholders.
3. The appointment of the Board is heavily influenced by the Secretary of State.
4. The Authority must report annually to Parliament on all its functions so there is nothing to suggest that some of them are regarded as private and the authority must give the Minister such information as he requires in relation to the exercise of any of their powers.
5. Some Ministerial approval for borrowing is required.
6. Appeal of licensing decisions is to the Board of Trade.
7. The Authority can act akin to a local or governmental authority.
8. The Authority can regulate others in a way that is over and above the way private companies can.

While NAMA may or may not fall under the administrative element of the EIR, it is important to point to the scope of bodies considered to be public in other jurisdictions, under the administrative element.

In relation to the status of properties owned or controlled by NAMA I would also point that in FER149772, the UK Commissioner found that:

…information relating to housing developments being built in any area is environmental information within the definition in regulation 2(1)(c). Social housing policies and plans to construct a housing development are measures likely to affect elements of the environment. These include the land and landscape and construction of a housing development which necessarily brings with it noise and potentially release of emissions and chemicals into its surrounding environment, therefore affecting the air, water and soil.

While this does not refer to properties owned or controlled by NAMA per se, it does specify how property information could potentially be environmental in nature.

It might also be noted that Eurostat, in a letter dated October 16, 2009, to the Central Statistics Office, said:

“NAMA is publicly owned and has as its purpose to conduct specific government policy… according to the decision of 15 July 2009 of Eurostat… it is to be classified within the general government sector.”