NAMA – A public authority

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
[133] 5
(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 Companies
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 possessing
environmental information;”

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:


34 thoughts on “NAMA – A public authority”

  1. Congratulations Gavin and well done to yourself and Fred to getting your campaign to this position. NAMA tends to leave things to the last minute so it might be mid-Nov 2011 before you’ll know if it seeks to appeal (if I were a betting person, I’d say it will as it has little to lose and it may kick the ball forward another 12 months).

    Can you remind us what information, you’d expect NAMA to be required to disclose if classed as a public authority?

    Again, well done!

  2. Well done Gavin and Fred. I’d echo Jag’s questions–what kinds of information can we expect a public authority NAMA to hand over?

  3. Great work!

    @Fred Logue
    “Nama must comply within three weeks but has two months to appeal on a point of law to the High Court.”

    So a barrage of information requests after 3 weeks but before the appeal to the High Court.

    @Gavin & Fred
    What type of information do you think you will be able to request under this legislation?

  4. Fantasic work. It’s a disgrace that that the government wishes to hide NAMA’s workings from the little people that pay for it.

  5. As mentioned in the decision NAMA cannot now refuse requests on the basis that it is not a public authority and must release information that falls within the regulations. As far as I know we have narrowed the request to one for information that is clearly environmental in nature.

    The definition of environmental information is quite broad and I have copied it below. It includes information that you would expect but also includes policy, plans, and economic analyses where they affect or are likely to have an environmental effect.

    So we can ask for example, how much waste is generated by NAMA’s operations or details of mileage and air travel since this indicates carbon emissions generated by NAMA.

    More interestingly details of NAMA’s land and property portfolios and its activities in relation to those is open to access under the regulations.

    Definition follows….

    “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);

  6. Making the monstrous NAMA Quango transparent and accountable is the most vital thing than can ever happen in this country.
    If the government dont rush in new legislation to thwart your good work Gavin-take a bow! (and your legal colleague)

  7. Presumably this will now cover questions on applications for planning permission on properties actually owned by NAMA, such as the premises occupied by the Complex theatre in Dublin? This is with An Bord Pleanala at the moment, where NAMA wants to turf out the theatre and replace it with a Tesco Express. Well done anyways!

  8. I was a member of a group that also got a decision from the Information Commissioner on SI 133/2007 — she overruled our county council, forcing them to release to us previously withheld information re the planning at a controversial quarry. I know well how much work it is to follow this through, so well done!

    In our case, the information we sought was obviously “information about the environment” as defined in the law. I’m intrigued that in your case, NAMA chose to refuse your request on the basis that it isn’t a public authority, rather than making the argument that the informatlion you are seeking is not information about the environment, per se. Since they lost on the “public authority” issue, can they now change horses and make this other argument, or have they lost their chance?

    Gavin, I read your post on politics.ie that
    “Environmental information is broadly defined. It includes things like emissions (mileage, flights) as well as things that ‘affect’ the environment. The burden of proof is with the authority, ie, it must prove information requested is not environmental, rather than the requester proving that it is. It would include planning permissions, plans to change the environment, things that affect properties or lands… and so on.”
    Does that mean then that NAMA would have to PROVE that, for example, none of the property transfers it effects will have any effects on the environment? I imagine there would be numerous land-use, zoning and other planning issues involved, and if my peek behind the curtain of the CC planning office is anything to go by, I can well believe that there might be some dodgy planning decisions being made away from the public scrutiny/consultation that our planning system mandates.

    Best of luck to you. I’ll be following this story.

  9. Great work Gavin and Fred in taking on this Cold War-like monstrosity. I’m surprised that Nama didn’t argue that although set up by statute it’s actually controlled by a private company (the SIV).
    Thanks for your journalism. Shames the apparatchiks of the mainstream media.

  10. I’m wondering about what useful information can now be extracted from NAMA and you indicate that

    “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,”

    There are many organisations and groups concerned about historically relevant buildings like the Hume Street hospital of the 1916 Republican building on Moore Street. There are concerns at the former about vandalism, theft, damage to the structure and in general the plans for the building. At the latter I think the concern is about the bulldozing of the building as part of a commercial redevelopment and about preserving what is regarded as an historically important site.

    Might either of the above, (which are purely examples, and NAMA might not have any involvement at all with Hume Street – it’s just for illustration) be candidates for extracting information from NAMA as to its plans, costings etc.

    Would heritage be considered an environmental “factor”. Would vandalism, anti-social behaviour?

    Grateful for views.

  11. Yes they would be. The question is what information NAMA would have in relation to those properties.

    It is worth emphasising: as the EIR is little used, the amount of case history or precedent is small, so the limits of what defines environmental information have not really been tested (though if you use the UK as a guide, it is very broad). In order to test the boundaries you have to send requests, and appeal them.

  12. Really excellent work and incredible perseverance.
    There is a quarry in Co Roscommon which is, we hear locally, ‘in NAMA’ because of an Anglo debt rumoured to be €35m. It would be very useful to know what arrangements have been made to monitor and regulate the environmental effects of the ongoing operation of the quarry.
    Other questions – and there are many, like how do you sell a privately owned quarry business on land that is privately owned? – will need another avenue of investigation.

  13. I interviewed a gentleman over ten years ago who was 99years old at time. He had written a book did not want to hand over to print while he lived did not want the hassle and we were in the thick of not being able to move without a hack popping up somewhere. What happened to his papers I dont know. The book and papers were on the vile spray of nazi like culture in Ireland, the rise of this culture and how it manifested and grew throughout history after foundation of state. He was one of those who had gone around in 1916 to apathetic people to speak to them about self determination about being free. Needless to say he lived his life in disgust. But he was not in person bitter.

    One thing I would earnestly appeal to others out there who are in position to bring this information to people at all levels. Share the knowledge even if receipt seems apathic in some quarters.

    How this could be doen I do not know.

    This fight is ongoing. And unlike generations of recent past this generation in Gavin and Fred are stepping up to continue that long historic line of integrity and has represent our race finally showing up once more in this generation with exemplary intelligence and abilities. Over shadowing the foul rat like mentality of recent past where not what you know who you know and brutal corruption that stinks not just in last century but in whole history of last 1000 years.

    Well done are little words. The work is still ahead. Know that those others who have gone before you and their spirit celebrates and is with you and will stay with you throughout your journey. This and like work of those in the centuries past is too important in any life time to be confined by a 100 years of life in terms of importance of this I am sure,

    I do not know where my friend is but it would be very important to him and would have relished to have lived to discuss it all with you. You are not alone.

  14. The press in this country are as corupt as the politions please read …….. thankyou

    Kilmainham Bankers and the Gombeen
    The tyrannical foes of indigenous men, stole from our people, again and again,
    Imprisoned the martyrs, as the blood sadly spilled, happened that day, on tortured, Kilmainham hill,
    To the future of Ireland they gladly gave praise, and offered their life, that a mother had raised,
    Shackled and hated the martyrs of hope, surrendered their freedoms to which others had spoke,
    Cry your tears, and remember for what they did do, Ireland’s children, the patriots, the selfless, the true
    Remember our yesterdays of what had to be, and remember our tomorrows will, still be unfree,
    Be wary, the Gombeen who sits, in the Dail, making mockery from misery, never to fall,
    With their army of lawyers, corrupt and untrue, with hate for the martyrs, for me and for you,
    Stealing life, from the unborn, a generation away, subject to poverty, without even a say,
    Never to know what life could have been, no corruption, no senators and greedy Gombeen,
    Once more under bondage, once more we must fall, to the terrifying monsters who govern the Dail,
    Give them a pay rise, as they sit in their cars, sitting in splendours, in exclusive wine bars,
    Not since our famine, did a man feel so less, to the unjust Gombeen tyrant, ours souls are suppressed,
    No blame ever taken, this art they know well, corruption a trademark, that pacifies our Hell,
    Remind me the martyrs, to why did they die, golden circles of bankers, and their grotesques pack of lies,
    Pay the banks with our children, who must up and go, paying and paying, for the Bankers cash flow,
    Martyrs are crying for this young, once proud land, bought for a mortgage and some silver in the palm
    Will we ever remember for why did they bleed, for the Gombeen, the bankers, the evil and greed?
    ..

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