Author: Gavin Sheridan

Here is a copy of the judgment in NAMA vs Commissioner for Environmental Information, given this morning.

Our statement:

“We welcome the decision of the Supreme Court today finding that NAMA is a public authority subject to the Access to Information on the Environment Regulations 2007/2011. We are thankful that the Office of the Commissioner for Environmental Information agreed with our interpretation of the law when it made its initial decision in 2011, and subsequently defended that decision through the courts.

We regret that NAMA did not handle the issue better at the outset -as the ruling itself noted – and that it has taken nearly 2,000 days for what was a preliminary matter to be decided, involving significant expenditure of public money. However the public now has greater clarity on the applicability of the Regulations, and the public’s right to know has been broadly vindicated by the Supreme Court. We look forward to NAMA fully implementing its obligations under the AIE Regulations 2007/2011.”

The key paragraph:

If the law stood as it was at the time of the High Court’s decision I would have considered it necessary to refer a question to the ECJ as to whether a body such as NAMA was a public body for the purpose of the exercised public administrative functions. The definition section of the Directive is unclear, and it is also necessary to consider the Aarhus Convention. However the decision in Fish Legal provides an authoritative interpretation of the Directive, and moreover does so in the context of a common law system. Applying that test it is clear that NAMA is indeed a public authority exercising public administrative functions. Although like the water companies in Fish Legal, it is obliged to act commercially, it is undoubtedly vested with special powers well beyond those which result from the normal rules applicable in relation between persons governed by private law. If anything, the case is clearer here. The water companies in Fish Legal were companies established in private law whereas NAMA is established pursuant to a statute which confers upon it substantial powers of compulsory acquisition, of enforcement, to apply to the High Court to appoint a receiver and to set aside dispositions. The Act also restricts or excludes certain remedies against NAMA. The establishment and operation of NAMA is a significant part of the executive and legislative response to an unprecedented financial crisis. The scope and scale of the body created is exceptional. Indeed if it were not so it would not be in a position to carry out the important public functions assigned to it in the aftermath of the financial crisis. Accordingly, for the reasons set out above, I would dismiss the appeal.

Back in February 2010, we sent a request to NAMA seeking certain information under the Access to Information on the Environment (AIE) Regulations. NAMA had just been established. We sent a similar request to Anglo Irish Bank. Both rejected our requests on the basis that they did not see themselves as public authorities under those regulations. We disagreed.

For 5 years the case has wound its way through the system, from a Commissioner ruling in September 2011 (which went in our favour), to High Court hearings in 2012 and two High Court judgments in early 2013 (the judge ruled against NAMA on both the substantive issue and on the issue of a stay, pending a Supreme Court appeal). We had to seek, and were granted, an expedited hearing after NAMA appealed both. There were almost two days of hearings in the Supreme Court in 2014, before five judges.

On June 23 they will issue their judgment.

The issue to be decided, among others, is what the term “and includes” means in the Regulations, and whether NAMA/Anglo, by virtue of being listed in 3(1) under the definition of public authority at parts vi) and vii), are in fact public authorities.

If the court rules as we believe it should, then NAMA becomes a public authority under AIE, and all bodies listed in parts i) to vii) of 3(1) of the Regulations become de facto public authorities (below), and we will finally have legal clarity.

(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;