Access to Information Updates
With the help of a good friend, the reply to the preliminary decision of the Commissioner for Environmental Information is complete. It runs to over 6,000 words, and I believe argues strongly that the Commissioner’s preliminary decision is entirely incorrect, erring both in law and in fact.
You can read it here:
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);
There have been few (no) takers of my offer to any law people out there to help in my reply to the Office of the Commissioner for Environmental Information in relation to the status of NAMA as a public authority. This is disappointing, as the decision is critical to greater transparency for what is one of the most signifiant bodies ever established in this country (and to which we currently have no right to information).
I have begun drafting my response to the Commissioner, and would again seek input from any source. I will be adding to this document over the coming weeks.
Earlier this year I appealed to the Office of the Commissioner for Environmental Information, arguing that the National Asset Management Agency was a public authority for the purposes of the European Environmental Information Regulations. The OCEI has sent me their preliminary view, were they agree with NAMA, that it is not a “public authority”.
Here is the letter. If any of you eagle eyed readers (or legal eagles amongst you) want to comment on the preliminary view, then please contact me or leave a comment. I have four weeks in which to reply before a binding decision is made.
Back in 2007 Gary Fitzgerald, a junior counsel, sought Cabinet records from the Department of An Taoiseach relating to carbon emissions under the European Environmental Information Regulations. The Department refused release of some records on the basis of constitutional Cabinet confidentiality. The Commissioner for Environmental Information ordered the release of the documents, but An Taoiseach appealed the matter to the High Court. The question in part related to whether the European Directive (which includes a mandatory release element in relation to emissions into the environment) took precedence over our Constitution – and also on how the Directive was transposed into legislation (SI 133/2007). An Taoiseach won the appeal, so the information will not be released. See Irish Times report here.
The full judgment is here:
I have made an additional submission to the Office of the Commissioner for Environmental Information in relation to NAMA’s status as a public authority for the purposes of the European Environmental Information Regulations:
NAMA have claimed that they are not a public authority for the purposes of the Directive. However in examining the decisions of the UK Information Commissioner I believe there are valid comparisons as to what constitutes a public authority. I will refer specifically to three cases of the UK Information Commissioner.
In FER0265609 the UK Information Commissioner decided that PhonePayPlus, a consumer protection body, formally designated by OFCOM to be the body responsible for regulating ‘Controlled Premium Rate Services’ was a public authority. It is a company limited by guarantee and a not for profit organisation.
PhonepayPlus did not accept that it was a public authority for the purposes of regulation 2 (2) of the Environmental Information Regulations. The transposition of the Directive has a specific element, Section 2 (2) (c): “any other body or other person, that carries out functions of public administration;”
In reaching its decision, the UK Information Commissioner took account of Parochial Church Council for the parish of Aston Cantlow and Wilmcote with Billesley v Wallbank and Another [2003] UKHL 37 and [2004] A.C. 546 in trying to define what factors must be considered:
Factors to be taken into account include the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service.
The Commissioner then considered each of these as basis for the decision:
The extent to which the body is publicly funded
The extent that the body is exercising statutory powers
The extent that the body is taking the place of central government
The extent that the body is providing a public service
The degree of Government control
The performance of regulatory functions
The next part of his analysis is to consider that whether those public functions are administrative. Only if they are will the organisation be covered by regulation 2(2)(c). This specifically relates to the administrative component of the Regulations. The Commissioner notes:
Administration can be regarded as being a component of executive power, distinct from both legislative and judicial powers. Administration can be visualised as the managing of power within the state apparatus and the achievement of a non legal goal through reliance on specific legal powers.
The Commissioner believed it can be described on the basis of relative characteristics:
(i) Administration is a ‘social arrangement.’
(ii) It is concerned with the public interest.
(iii) It is above all an active arrangement aimed at the future.
(iv) Administration takes ‘concrete measures for the regulation of individual cases’.
The Commissioner took account of O. Hood Phillips & P Jackson, Constitutional and Administrative Law(6th ed, London 1978) pp 50 et seq:
The executive or administrative function is the general and detailed carrying on of government according to law, including the framing of policy and choice of the manner in which the law may be made to render the policy possible.
The Commissioner also referenced Port of London Authority v Information Commissioner (EA/2006/0083) (‘Port of London’) in the following way:
1. The Authority has statutory duties.If the Authority did not fulfil those duties Government would need to task another organisation with them.
2. The Authority has to account to Parliament as well as to its shareholders.
3. The appointment of the Board is heavily influenced by the Secretary of State.
4. The Authority must report annually to Parliament on all its functions so there is nothing to suggest that some of them are regarded as private and the authority must give the Minister such information as he requires in relation to the exercise of any of their powers.
5. Some Ministerial approval for borrowing is required.
6. Appeal of licensing decisions is to the Board of Trade.
7. The Authority can act akin to a local or governmental authority.
8. The Authority can regulate others in a way that is over and above the way private companies can.
While NAMA may or may not fall under the administrative element of the EIR, it is important to point to the scope of bodies considered to be public in other jurisdictions, under the administrative element.
In relation to the status of properties owned or controlled by NAMA I would also point that in FER149772, the UK Commissioner found that:
…information relating to housing developments being built in any area is environmental information within the definition in regulation 2(1)(c). Social housing policies and plans to construct a housing development are measures likely to affect elements of the environment. These include the land and landscape and construction of a housing development which necessarily brings with it noise and potentially release of emissions and chemicals into its surrounding environment, therefore affecting the air, water and soil.
While this does not refer to properties owned or controlled by NAMA per se, it does specify how property information could potentially be environmental in nature.
It might also be noted that Eurostat, in a letter dated October 16, 2009, to the Central Statistics Office, said:
“NAMA is publicly owned and has as its purpose to conduct specific government policy… according to the decision of 15 July 2009 of Eurostat… it is to be classified within the general government sector.”
Further to my request to Anglo Irish Bank under the European Communities (Access to Information on the Environment) Regulations, I simultaneously requested information from the National Asset Management Agency (NAMA).
I specifically sought the information under SI133/2007, the transposition of the 2003 Directive into Irish Law.
In an email dated February 3, 2010, to NAMA, I sought:
1) A breakdown of all assets, loans and properties due to be
transferred to the Agency. This should include the value placed on the
asset and by whom. It should include the addresses of all assets and
properties.2) A breakdown of all properties and property loans currently owned or
controlled by the Agency.3) Minutes of board meetings relating to the transfer of assets and
properties to the Agency. The date range for this request is January
2009 to January 2010, inclusive.
In an email dated February 16, 2010, I received an email from NAMA stating:
Upon due consideration of your request and the AIE Regulations, we do
not propose to accede to your request as we do not consider that the
National Asset Management Agency is a “public authority” within the
definition set out in the AIE Regulations.
As is my right under the Regulations I then sought an internal review of that decision. I argued:
You state that you do not consider NAMA to be a “public authority” within the AIE regulations. However under the Regulations a public body is defined as:
(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),In addition:
(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;The NAMA board consists of 9 members, appointed by the Minister for Finance. The chief executives of NAMA and the NTMA (ex-officio) are appointed by the Minister. This alone would clearly indicate that NAMA is a public body. (vi) would appear to be particularly relevant.
On March 19, I received the results of the internal review. NAMA stated:
I have conferred on this issue with the Head of Legal and Tax within the National Asset Management Agency. Under her advice our response to this issue still remains the same. I trust this answers your query.
I disagreed with the decision and have now appealed the matter to the Office of the Commissioner for Environmental Information, which cost €150, kindly donated by readers. It strikes me as odd, to say the least, that the body established by the Government to handle property loans worth an estimated €54 billion, does not consider itself to be a public body for the purposes of the European directive in question. NAMA and its parent body, the NTMA, also do not fall under the FOI Act. The entire process is opaque, and the public has absolutely no recourse to information besides through this European Directive.
It is worth noting three critical points:
1) The definition of a public body within the Regulations is extremely broad. NAMA clearly is (a) government or other public administration, including public advisory bodies, at national, regional or local level. But NAMA felt they did not full under this definition.
2) The definition of environmental information under the Regulations is also extremely broad. Lands owned or controlled by NAMA (as a public body), is clearly environmental information. A cursory look at the application of the Directive in other jurisdictions would clearly show this to be the case.
3) If NAMA is deemed by the OCEI to be a public body, then any information related to the environment would fall within a request for information. NAMA may argue that such information is ‘commercially sensitive’ under the Regulations, but as this is entirely public money at issue, one must ask to whom is it commercially sensitive.
If the OCEI were to decide that NAMA is a public body alone (which was the main reason for my initial request), it would open up the body to much greater scrutiny. I await their decision with interest.
Readers will be aware that Anglo Irish Bank was nationalised in January 2009. This came after the bank guarantee scheme of September/October 2009. Anglo became a prescribed body under the Ethics in Public Office Act last summer, which was expanded through a statutory instrument in February 2010 to cover many subsidiaries of the bank.
However, Anglo has not become a prescribed body under the Freedom of Information Act 1997/2003. This would require the signature of Finance Minister, Brian Lenihan. Given the sheer volumes of public money already given to the bank, and the volumes of public money due to be given, it is outrageous that the public has no recourse to information as to how this money is being spent. We cannot quantify expenditure by the bank, nor has the Government made any effort to inform the public about how much public money has been given to the banks, and how it is exactly spent.
I gave a great deal of thought to this problem over the last number of months, and decided on a course of action that will be unknown to many. I have decided to publicise this process in the hope that others will follow. We have a right to know what is going on. As a result I started a process that I believe is the most significant and important request for information we have sent to date.
Continue reading “Anglo Irish Bank – A request for information”