Update: December 2011: This case has been appealed to the High Court.
In February of 2010 I sent a request to NAMA asking for a set of information under the Environmental Information Regulations (EIR) (SI 133/2007) (NOT the same as FOI, but similar). NAMA refused on the basis that it did not consider itself a public authority for the purposes of those regulations. As was my right, I appealed to internal review to a more senior member of staff in NAMA. I was again refused. I then appealed to the Commissioner for Environmental Information (we are into May 2010 now).
I asked for legal help on a blog post, because the issues that were arising were legally complex. Fred Logue, who has a background in legal stuff, offered to help. I am hugely indebted to him for all of his help with this case – it required extensive legal research and lengthy submissions (all of which I will publish here).
Last Summer in an initial preliminary view, the Office of the Commissioner for Environmental Information took the view that NAMA was correct in their view, and that myself and Fred were wrong in our interpretation of the legislation. I blogged about it at the time. The Office then asked for further submissions in light of this view, both from myself and from NAMA. We did so. There were then further submissions on top of those, and more, right up until the end of 2010.
The core argument Fred and myself made was this: The legislation uses the phrase “and includes” in its definition of public authority. We argued that this has the logical meaning of inclusion, rather than exclusion. NAMA’s argument was essentially that ‘and includes’ really means ‘may include’. Without getting too much into the legal arguments, here is the law in question:
““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),
(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 Companies
Acts) established by or under statute,
(vii) a company under the Companies Acts, in which all the shares are
(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 possessing
Simply put, our argument was that NAMA fell under “(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute”. NAMA argued that it had to fall under (a), (b) or (c) before it could be included in (i) to (vii).
In her decision today the Commissioner has agreed with our view that “and includes” means “and includes” and therefore NAMA is a public authority. By extension it also means that any company under the Companies Acts, in which all the shares are held by or on behalf of a Minister of the Government is also a public authority for EIR purposes. This would include Anglo Irish Bank.
The result is not just that NAMA is a public authority, but that the legislation itself is clarified so as to expand the scope of what defines public authorities in Ireland. This is a victory for transparency in Ireland. NAMA have leave to appeal the decision to the High Court, on a point of law, within eight weeks.
Any questions? Direct to gavinsblog AT gmail DOT com
This is the decision: