Is NAMA a public authority?

It seems as though myself and Emily O’Reilly’s office are not seeing eye to eye on this question. Not to say that her staff are anything other than friendly and helpful, they certainly are. We simply appear to be disagreeing on how to read SI133/2007 – the Environmental Information Regulations.

As readers of this blog will know, her Office issued a preliminary decision in which NAMA was deemed not to be a public authority for the purposes of those regulations. I will reply to the preliminary decision shortly, after which a binding decision will be made by her office. The stakes are pretty high, and I believe – after speaking to a number of legal people – that I am correct on my reading of the SI, and the Office is fundamentally incorrect (in their preliminary decision at least).

I do find it perplexing that on the one hand Emily O’Reilly is complaining about NAMA not being under FOI, while on the other her office issued a preliminary decision that denied NAMA’s status as a public authority under the sister legislation to FOI. That might sound like criticism, and yes it is, albeit mild. But if the Office were to make a binding decision that NAMA was not a public authority, it gets far far more serious.

Let me be very clear here. NAMA is a public authority for the purposes of the Regulations. This is utterly clear. I believe the preliminary decision has erred both in law and in fact by:

Failing to find that NAMA is a public authority by reason of Regulation 3(1)(vi) of SI 133/2007;
Failing to apply the correct test when considering whether or not NAMA’s functions are administrative in nature;
Failing to find that NAMA is a public authority by reason of Regulation 3(1)(b) of SI 133/2007; and
Incorrectly finding that NAMA’s powers serve no public purpose and that it is a purely commercial entity.

I’ve had huge (read: massive) help in drafting my reply, but that person has asked to remain anonymous (for now at least). If the Office issues a binding decision that NAMA is not a public authority I believe the error will be significant enough that it would require a High Court action to correct. And this doesn’t just relate to NAMA – it relates to a large number of bodies in the State which would no longer fall under EIR on the basis of the NAMA precedent – which poses a question as to what bodies are or are not covered by the legislation. This affects us all.

Without going into the detail of the reply (it’s over 5,000 words in length so far), I would make two important points.

First, in her reply, the investigator states:

“I take the view that Article 3(1)(a) of the definition of “public authority” is meant to refer to a Department of State or local authority or other State body within the executive branch of government; it does not refer to a body with an economic or commercial mandate such as NAMA.”

I think this is one of many fundamental errors in the preliminary decision. 3(1)(a) could conceivably included many more bodies than those in the executive. But even if I’m wrong, that’s why 3(1)(b) is also worth looking at.

Second is NAMA’s own memoranda of association. You see when NAMA was established, it also established several limited companies, including National Asset Loan Management Limited. And the memoranda of association for this company includes, in article 9:

To purchase, take on lease, on licence, in exchange, upon option or otherwise acquire and hold any lands, buildings, property (whether leasehold or freehold) or any rights or interests therein or in respect thereof and to develop, improve, alter or manage the same or any part thereof in any way (including, without limitation, construction, demolition, landscaping, planting, draining and improving).

Now read the legislation (this is simpler than it might look):

3. (1) In these Regulations—

“public authority” means, subject to sub-article (2)—

(a) government or other public administration, including public advisory bodies, at national, regional or local level,
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment, and
(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b),

and includes—

(i) a Minister of the Government,
(ii) the Commissioners of Public Works in Ireland,
(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),
(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),
(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),
(vi) a board or other body (but not including a company under the Com- panies Acts) established by or under statute,
(vii) a company under the Companies Acts, in which all the shares are held—
(I) by or on behalf of a Minister of the Government, (II) by directors appointed by a Minister of the Government,
(III) by a board or other body within the meaning of paragraph (vi), or
(IV) by a company to which subparagraph (I) or (II) applies, having public administrative functions and responsibilities, and pos- sessing environmental information;

Here is my logic:

1. NAMA is a body established by or under statue, therefore it is a public authority under 3 (1) (vi). No decision has to be made about whether if falls under a, b or c: 3 (1) (vi) is entirely sufficient.
2. Even if the “and includes” part of the legislation instead said “or includes” NAMA would still be a public authority under 3 (b), since it carries out public administration. Believe it or not, the entire disagreement with the Information Commissioner’s office stems from what ‘and includes’ means here. I believe it is perfectly clear.
3. Even if NAMA was not under 3(b), it would be under 3(c), because, as outlined above it is a natural or legal person (a company), having public responsibilities or functions relating to the environment (by virtue of it carrying out demolitions or building that would affect the environment).

But the question is, should I have to bring a High Court action in order for the legislation to be read correctly?

The Directive itself (on which the SI was based) says:

Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition.

But when transposing the legislation, we deliberately included parts (i) through (vii). It is a non-exhaustive list of bodies and categories of bodies which are to be considered public authorities for the purpose of the Regulations. No ifs, ands, ors or buts.

And one last thing. NAMA will be one of the biggest, if not the biggest land owner in the State. It will have the power to compulsorily purchase land, demolish houses, redevelop existing land… the list goes on. So let us remind ourselves what defines “environmental information” under the European legislation [my emphasis]:

“environmental information” means any information in written, visual, aural, electronic or any other material form on—

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);