Tag: FOI

The stay on the judgment of Judge Mac Eochaidh has been continued until October 2013, where the substantive issue of “and includes” will be heard before the Supreme Court.

This is a victory of sorts, as it was quite possible that the case might not have been heard for several years – it will now be heard in just over 4 months time. We argued strongly about the right to a timely process given by the Regulations and Aarhus.

This week will see the culmination of more than three years of work on the part of TheStory.ie to try and obtain information from the National Asset Management Agency (NAMA) and Anglo Irish Bank (now the defunct IBRC) through a legal process called an Access to Information on the Environment request (AIE). Those of you who have been following this saga since 2010 will be familiar with the arguments at play but for those who have not this is the story so far.

The Supreme Court will hear arguments on Friday May 31, about whether a stay should be granted or refused on the judgment of the High Court that NAMA is a public authority, pending an appeal to the Supreme Court. We are asking the court not to grant a stay, NAMA are asking for a stay.

How did this start?

In February 2010 we sent an email to NAMA asking for information including loans it manages (and therefore property it owns or controls). NAMA sent us an email back saying that they were not obliged to answer our request because they did not consider themselves to be a public authority as defined in the Access to Information on the Environment Regulations 2007. Anglo Irish Bank refused on the same basis. We appealed those decisions to an internal review and were refused on the same basis. We then appealed their refusals to the Office of the Commissioner for Environmental Information.

How did the Commissioner react?

In what’s known as a preliminary view (the investigator’s initial position on the case) the Commissioner disagreed with us and said that NAMA (and Anglo) were correct in their view that they were not public authorities. The next step in the process is that parties are invited to make further submissions on the basis of the preliminary view. It was at this stage we invited people to contact us with any legal opinions they had, and Fred Logue contacted us to offer his assistance. We then made further submissions. And waited.

What did the Commissioner decide?

In rulings in September 2011, 20 months after our original requests, the Commissioner ruled in our favour in both the NAMA and Anglo Irish Bank cases. In her ruling the Commissioner did not tackle certain elements of the Regulations about what defines a public authority (the a, b and c definitions) but rather focussed on the list after the words “and includes”. The crux of the issue was what “and includes” means in Irish statutory interpretation.

How did NAMA and Anglo react?

Under the Regulations, NAMA and Anglo could appeal the Commissioner’s decision to the High Court on a point of law, within 8 weeks of the decision. Both did so. Anglo joined us as a notice party to the case, NAMA did not. Then the waiting began for the court hearing. In the meantime the Anglo case was set aside, pending the NAMA case, as both were about substantially the same issue.

What happened at the High Court?

In July 2012, over the course of one and a half days of court sittings, Brian Murray SC, representing NAMA and Niamh Hyland SC, representing the Commissioner, argued the merits of the case before the recently appointed Mr Justice Colm Mac Eochaidh. TheStory.ie was not a notice party and made no representations to the Court, however we did attend. The arguments centred on the meaning of the words “and includes”.

What did the High Court decide?

Six months later the High Court made its judgment in February 2013. Judge Mac Eochaidh said: “I have no difficulty identifying the natural and ordinary meaning of the words at issue in these proceedings once the legislative intention is clear, as it is here. And on the application of the un-rebutted presumption of faithful transposition, the meaning of words used is beyond doubt.”

What did NAMA do then?

NAMA sought a stay on the judgment pending an appeal to the Supreme Court. At this point the Commissioner took a neutral position on the issue of whether a stay should be granted. Judge Mac Eochaidh noted that if a stay were granted then it was likely that the rights of the requester would be affected, and therefore before ruling on the stay issue, he invited us to make a submission to the court.

What was the submission?

Among the points we made orally and in writing to the High Court were that the Regulations (and the Directive and Convention on which the Regulations are based) guarantee a timely process. We argued that we would be prejudiced if a stay was granted, since appeals to the Supreme Court could take up to five years to be heard. Rather, a stay should not be granted since NAMA could answer requests for information in the interim between now and when a Supreme Court appeal is heard.

What did the High Court decide?

On April 19, Judge Mac Eochaidh ruled in our favour. It is worth noting at this point that since the Commissioner had taken a neutral position on the issue of the stay, she is no longer playing an active part in the matter. The argument was only between NAMA and TheStory.ie. He noted:

NAMA decided to dismiss Mr. Sheridan’s 2010 request for information on a threshold issue as to whether or not it was a public authority. No other decision has ever been taken by NAMA on his request even though it could have decided whether or not the information he sought comprised environmental information as defined and whether or not any of the mandatory or discretionary grounds for refusal of information were applicable. Thus, by framing its refusal so narrowly, NAMA have effectively neutralised the whole of Mr. Sheridan’s request and have ensured that the process is likely to take further time and result in further appeals to the Information Commissioner. The elongation of the process for deciding Mr. Sheridan’s request seems to be the direct result of the unnecessarily narrow approach adopted by NAMA in determining the request.

What did NAMA do then?

NAMA disagreed with the stay judgment and appealed it to the Supreme Court (yes that means there are two Supreme Court appeals – one on the original February 2013 ruling that they were a public authority, and the other on whether a stay should be granted). The Supreme Court asked that both NAMA and we make submissions to the Court – both parties have now made those submissions. The court must now decide on whether or not a stay should be granted, and will hear arguments from just two parties – NAMA represented by Brian Murray SC and us, represented by myself.

Is this not costing you money?

No, it has only cost us time. All the legal fees up to this point have been footed by both parties – NAMA on one side and the Commissioner on the other (now at €121,350 and rising). Since we are not a notice party to the case we are not exposed to costs. Indeed when we were successful in our arguments against NAMA on the issue of the stay in the High Court, we were asked if we wished to apply for costs – we refused, saying that the case had cost the taxpayer enough already.

Why didn’t you use the Freedom of Information Act?

NAMA was deliberately excluded from the schedule of bodies covered by FOI by former Finance Minister Brian Lenihan, citing ‘commercial sensitivity’ concerns. Therefore the path of using FOI to obtain information was not open to us. However the current draft bill for the amendment of the FOI Act includes NAMA as a body.

What happens if you lose?

NAMA will be under no obligation to answer AIE requests and we will have to wait until a Supreme Court judgment to decide on the issue, which could be as late as 2018.

What happens if you win?

NAMA will become a de facto public authority under the Regulations pending the Supreme Court appeal, so will have to act as if it were a public authority until the Supreme Court rules on the matter. Under the 2007/2011 Regulations, NAMA will be obliged to answer requests from the public and do things such as “inform the public of their rights under these Regulations and provide information and guidance on the exercise of those rights, make all reasonable efforts to maintain environmental information held by or for it in a manner that is readily reproducible and accessible by information technology or by other electronic means, ensure that environmental information compiled by or for it, is up-to-date, accurate and comparable and maintain registers or lists of the environmental information held by the authority and designate an information officer for such purposes or provide an information point to give clear indications of where such information can be found”.

The Information Commissioner published her annual report for 2012 yesterday. It’s worth a read to see some of the highs and lows of the Freedom of Information and Access to Information on the Environment regimes in Ireland in 2012.

One note in relation to AIE caught our eye. The Commissioner in her role as Commissioner for Environmental Information noted that:

My Office’s appeal to the Supreme Court against the judgment of Mr. Justice O’Neill in An Taoiseach v. Commissioner for Environmental Information (Case CEI/07/0005) is still pending.

This is an interesting case for a number of reasons including the issue that it raised as well as the length of time that it is taking to reach a final binding decision.

The appeal was lodged on March 2007 with the Commissioner; it being only the second appeal to be dealt with by the Commissioner (there have been more than 80 in total since 2007). The Commissioner found in favour of the requester, but that decision was appealed to the High Court where it was overturned. The Commissioner subsequently appealed to the Supreme Court where the matter is still pending more than six years after the request for information was first made.

As regular readers may be aware article 9(4) of the Aarhus Convention guarantees a judicial review process that is fair, equitable, timely and not prohibitively expensive. As we argued in NAMA -v- Commissioner for Environmental Information it is hard to see how the State and the EU have vindicated Irish citizen’s rights under Aarhus when final court decisions are taking in excess of six years to be delivered.

The second point relates to the Irish transposition of Directive 2003/4/EC on public access to environmental information. Under Aarhus and the Directive information relating to emissions into the environment may not be exempt (except under administrative exemptions such as unreasonable request, internal discussions etc.). This ensures that the public can access this information to a greater extent than non-emissions related information bearing in mind the interest the public has in accessing this type of information. Emissions are defined broadly in the Aarhus implementation guide: “direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources in the installation into the air, water or land.” (page 60)

However when Ireland transposed this Directive it qualified this mandatory disclosure of emissions-related information by excepting cabinet discussions (see Articles 8(b) and 10(2) of the AIE Regulations). This qualification does not appear to have any basis in either the Convention or the Directive.

Mr Fitzgerald sought access to a range of cabinet documents concerning greenhouse gas emissions but the appeal was narrowed to a single note of a cabinet discussion that related directly to such emissions.

The Commissioner was of the opinion that the cabinet confidentiality exception although made under Article 28 of the Constitution was not permitted under the Directive and that since the Directive met the criteria for direct effect under EU law she should apply the Directive to the request. She allowed the request and ordered the Government to release the information.

The decision was appealed to the High Court which held in June 2010 that the Commissioner did not have the legal power to interpret the Regulations beyond its terms including the power to give direct effect to the terms of the directive. The Court further held that in any event the information requested was also exempt under the internal discussion exemption.

The Commissioner appealed this decision to the Supreme Court where it is now pending for three years, in total more than six years after the original request was made. In that time the Commissioner’s office has disposed of 80 further appeals.