NAMA vs OCEI

It’s not clear whether it will be for mention or hearing (I’m hoping the latter) but tomorrow sees another step in the long process of trying to find out if the National Asset Management Agency is a public authority for the purposes of the Access to Information on the Environment Regulations 2007/2011. (This is not Freedom of Information, but a separate piece of legislation). We began this process on thestory.ie back in February 2010 with simultaneous requests to NAMA and Anglo Irish Bank. It’s listed for Court No 4, Four Courts at 10.45am on May 17.

The core of the argument comes down to legislative interpretation. Myself and Fred Logue (who has kindly given his free time to give huge help on the matter) have argued that the “and includes” part of the legislation when referring to public authorities really does mean “and includes”. NAMA have argued that it effectively means “may include”.

The Commissioner for Environmental Information, Emily O’Reilly, agreed last September with our view. She noted:

The National Asset Management Agency has argued that allowing the word “includes” its ordinary meaning would have the consequence, in the present context, of extending the definition of public authority beyond what is envisaged in the EU Directive. What NAMA proposes is that the plain and ordinary meaning of the word, as used in the Regulations, be set aside in favour of a meaning which implies a restriction rather than an expansion or an inclusion. It is not at all clear that, as Commissioner for Environmental Information, I may abandon the plain language of the Regulations in favour of an interpretation which is arguably more in keeping with the provisions of the Directive. This is particularly the case where the language of the Regulations, in this particular instance, is neither obscure nor ambiguous.

In any case, I am not persuaded that reliance on the plain meaning of the word “includes”, as used in the definition of “public authority” in the Regulations, gives rise to an outcome which is at odds with the Directive. In fact it is very arguable that the Directive encourages and enables Member States to take an expansive approach to what constitutes a “public authority”. Recital (11) of the Directive refers expressly to an expansive intent in relation to the definition; and Recital (24) expressly permits Member States “to maintain or introduce measures providing for broader access to information than required by this Directive.” Therefore, I do not accept that subparagraphs (a) to (c) of the definition of “public authority” in the Regulations should be interpreted as restrictive criteria where a Member State has apparently chosen to take an expansive approach to the definition.

NAMA and Anglo disagreed with this view, and appealed to the High Court – leading us to this current situation.

If we are right, then NAMA becomes a public authority, but *only* for the purposes of the AIE Regulations. By extension, Anglo Irish Bank, as a company wholly owned by the Minister for Finance, would also become a public authority, but *only* for the purposes of the AIE Regulations.

And by further extension, if we are right, a Minister of the Government, a harbour authority within the meaning of the Harbours Act 1946, a board or other body (but not including a company under the Companies Acts) established by or under statute, a company under the Companies Acts, in which all the shares are held by or on behalf of a Minister of the Government or by directors appointed by a Minister of the Government, would also automatically become de facto public authorities for the purposes of the AIE Regulations.

It has always been clear to us from the beginning that as a little-known and indeed little-used legislation that cases like this were possible – since it is relatively untested. Ultimately we are seeking legal clarity and trying to push the boundaries of how citizens can access information generally – this is not just about NAMA (though NAMA is an oddly opaque organisation in my view).

It is worth noting the following:

Article 10 of the European Convention on Human Rights says:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

In TÁRSASÁG A SZABADSÁGJOGOKÉRT v. HUNGARY in 2009, the European Court of Human Rights found that there had been a violation of Article 10 when access to information was refused. The court noted “in view of the interest protected by Article 10, the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information. For example, the latter activity is an essential preparatory step in journalism and is an inherent, protected part of press freedom”

While there are cases where access should be limited to some degree, in general free access to information by citizens should be the default position. Access to information is a human right.

Environmental information is largely untested in Irish legal waters and unless the boundaries are pushed both in terms of what defines public authorities generally, and what defines environmental information, we cannot progress the right to information agenda generally.

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