Access to Environmental Information from NAMA
A landmark decision delivered on 13 September 2011 by the Commissioner for Environmental Information (‘the Commissioner’) has held that the National Asset Management Agency (‘NAMA’) is a Public Authority within the meaning of the European Community (Access to Information on the Environment) Regulations 2007 (‘the Regulations’) for the purpose of releasing information under the Regulations.
The Regulations are similar to the Freedom of Information Act 1997 in Ireland (‘FOI Act’) but cover the release of information of an environmental nature only and so are much more restrictive than the FOI Act.
The background to the decision is that in February 2010 the Applicant, Gavin Sheridan, a journalist, made a request for information to NAMA under Article 6 of the Regulations. The information sought included “a breakdown of all assets, loans and properties due to be transferred to NAMA, the value of the assets, addresses of all assets and properties, a breakdown of all properties and property loans currently owned or controlled by NAMA and Minutes of Board Meetings relating to the transfer of assets and properties to NAMA.”
The Applicant’s request was refused on the basis that NAMA did not consider itself to be a ‘public authority’ within the meaning of the Regulations. The Applicant subsequently requested an internal review of this decision. In March 2010 NAMA reviewed the matter and upheld the original decision. On the same day, the Applicant appealed to the Commissioner for Environmental Information against NAMA’s decision.
As NAMA refused the information on the basis that it was not a public authority, the appeal was concerned only with the question of whether NAMA is a public authority within the meaning of the Regulations. The appeal did not consider whether the information requested by the Applicant constituted ‘environmental information’ as defined in the Regulations.
Article 3(1) of the Regulations defines a ‘public authority’ as:
- Government or any public administration including public advisory bodies, at national, regional or local level:
- Any natural or legal person performing public administrative functions under national law including specific duties, activities and services relating to the environment;
- Any natural or legal person having public responsibilities or functions or providing public services relating to the environment and includes, among other things at subsection (vi) a board or other body (but not including a company under the Companies Acts) established by or under statute.
NAMA argued that it is not included under subsection (vi). It argued that the use of the term “includes” does not always have the effect of enlarging the range of the clause but sometimes has a limiting effect. It submitted that because NAMA is not captured within a) b) or c) of 3(1), then subsection (vi) cannot apply.
The Commissioner found that there was no dispute that NAMA is a body established under Section 9 of the National Asset Management Act 2009 and is accordingly “a board or other body (but not including a company under the Companies Acts) established by or under statute”.
Having reviewed the rules of statutory interpretation and a 2009 High Court decision which was upheld by a recent Supreme Court decision, the Commissioner found the word “include” has an expansive connotation and has the function of enlarging the meaning of the words or phrases with which it is associated.
The Commissioner rejected NAMA’s argument. She found that European Directive 2003/4/EC which the Regulations transpose into Irish law encourages and enables Member States to take an expansive approach to what constitutes a public authority. The Commissioner also stated that the Directive expressly permits Member States to maintain or introduce measures providing for broader access to information than is required under the Directive.
The Commissioner found that NAMA was not justified in refusing the Applicant’s request for information on the grounds that it is not a public authority within the meaning of the Regulations.
The decision may be appealed by NAMA within 8 weeks of the date of the decision. If the decision stands, its importance will be to show that there are a broad range of public bodies which may not operate in total secrecy insofar as environmental information held by them is concerned.