NAMA ruled a public body - let the floodgates open!

[DCon]

Extreme thanks and appreciation are due to Gavin Sheridan for his work on this.

In February of 2010 I sent a request to NAMA asking for a set of information under the Environmental Information Regulations (EIR) ( SI 133/2007) (NOT the same as FOI, but similar). NAMA refused on the basis that it did not consider itself a public authority for the purposes of those regulations. As was my right, I appealed to internal review to a more senior member of staff in NAMA. I was again refused. I then appealed to the Commissioner for Environmental Information (we are into May 2010 now).

I asked for legal help on a blog post, because the issues that were arising were legally complex. Fred Logue, who has a background in legal stuff, offered to help. I am hugely indebted to him for all of his help with this case – it required extensive legal research and lengthy submissions (all of which I will publish here).

The core argument Fred and myself made was this: The legislation uses the phrase “and includes” in its definition of public authority. We argued that this has the logical meaning of inclusion, rather than exclusion. NAMA’s argument was essentially that ‘and includes’ really means ‘may include’. Without getting too much into the legal arguments, here is the law in question:

““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
[133] 5
(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 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;”

Simply put, our argument was that NAMA fell under “(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute”. NAMA argued that it had to fall under (a), (b) or (c) before it could be included in (i) to (vii).

In her decision today the Commissioner has agreed with our view that “and includes” means “and includes” and therefore NAMA is a public authority. By extension it also means that any company under the Companies Acts, in which all the shares are held by or on behalf of a Minister of the Government is also a public authority for EIR purposes. This would include Anglo Irish Bank.

The result is not just that NAMA is a public authority, but that the legislation itself is clarified so as to expand the scope of what defines public authorities in Ireland. This is a victory for transparency in Ireland. NAMA have leave to appeal the decision to the High Court, on a point of law, within eight weeks.

http://thestory.ie/2011/09/14/nama-a-public-authority/

[ang]

I predict NAMA will appeal.

[Captain Con O'Sullivan]

Isn't this based on European legislation though (the EIR public interest principle) so NAMA would have not much room to wiggle on an appeal?

Also it wouldn't give the Oireachtas much room either to hurriedly legislate to cover the sudden whipping away of the confidential shorts around certain publicly funded organisations.

Either way this is not going to look good if the government and NAMA try to fight the public interest angle.

Gavin Sheridan and The Story people strike again with a brilliant and painstaking piece of journalism. Magnificent stuff and game on as regards transparency around publicly funded organisations.

[C. Flower]

Brilliant work. I'm not clear though. Does this apply to FOI as well, or only to bodies with environmental aspects ?

[DCon]

Brilliant work. I'm not clear though. Does this apply to FOI as well, or only to bodies with environmental aspects ?

Not 100% sure. I suppose it depends how you define "environmental information"

“environmental information held by a public authority” means environmental
information in the possession of a public authority that has been produced or
received by that authority;
“environmental information held for a public authority” means environmental
information that is physically held by a natural or legal person on behalf of
that authority;
“Minister” means the Minister for the Environment, Heritage and Local
Government;
“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
[133] 5
(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 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;
“request” means a request for environmental information pursuant to article 6

http://www.attorneygeneral.ie/esi/2007/B25144.pdf

[DCon]

I predict NAMA will appeal.

They might just hide behind this

Discretionary grounds for refusal of information
9. (1) A public authority may refuse to make available environmental information
where disclosure of the information requested would adversely affect—
(a) international relations, national defence or public security,
(b) the course of justice (including criminal inquiries and disciplinary
inquiries),
(c) commercial or industrial confidentiality, where such confidentiality is
provided for in national or Community law to protect a legitimate
economic interest, or
(d) intellectual property rights.

http://www.attorneygeneral.ie/esi/2007/B25144.pdf

[Captain Con O'Sullivan]

The interesting thing would be that 'environmental' there would include land and property valuation I suspect.

NAMA by definition being an agency based on property and land and attendant loans would fall into 'environmental' descriptions very quickly. Ghost estates for example, ghost hotels and so on within NAMA's purview would have to be environmentally related- as in 'built environment'.

This is going to be awkward for the government if they choose to fight the transparency issue. Interestingly it would also include quangos or agencies in which the Minister holds a share on behalf of the citizens such as harbours, possibly rail and other infrastructure agencies.

What's the betting CIE/Iarnrod Eireann have suddenly had a pale moment in the boardroom? If Iranrod Eireann procurement documents become discoverable to journalists there will be pandemonium there at the thought of certain issues coming to light I'd have thought

The Story team deserve a bloody medal for this. Political journalism ju-jitsu to say the least.

[DCon]

This is going to be awkward for the government if they choose to fight the transparency issue. Interestingly it would also include quangos or agencies in which the Minister holds a share on behalf of the citizens such as harbours, possibly rail and other infrastructure agencies.

There must be a few skeletons in the DDA closet

[Captain Con O'Sullivan]

There must be a few skeletons in the DDA closet

Oh yes .... it must be horribly tempting for Fine Gael and Labour to belay any challenges and let the chips fall where they may.

The advantage to the coalition is that they are still in the honeymoon period and can gain enormously from a commitment to support transparency, safe in the knowledge that Fianna Fail will be buried at the crossroads with an electoral stake firmly embedded in what remains of its heart because there's oceans of FF corruption available via this route.

Fascinating this because FG/Labour will instinctively want to close down this route to public disclosure but I think they should resist that instinct. Let the public destroy FF while the coalition sits back and supports more openness and transparency in public life.

Gorgeous if they've got the nerve for it.

[DCon]

There must be a few skeletons in the DDA closet

Bertie's target, Coillte, may also come under this.

[fluffybiscuits]

Isn't this based on European legislation though (the EIR public interest principle) so NAMA would have not much room to wiggle on an appeal?

Also it wouldn't give the Oireachtas much room either to hurriedly legislate to cover the sudden whipping away of the confidential shorts around certain publicly funded organisations.

Either way this is not going to look good if the government and NAMA try to fight the public interest angle.

Gavin Sheridan and The Story people strike again with a brilliant and painstaking piece of journalism. Magnificent stuff and game on as regards transparency around publicly funded organisations.

It is indeed, a few other organisations have been caught out on this on public sector. They circumnavigate certain exemptions for organisations that are exempt from FOI...

[Dr. FIVE]

I predict NAMA will appeal.

NAMA has decided to appeal my right to information case to the High Court.
Will be OCEI vs NAMA, I'm applying to be Notice Party.

- Gavin Sheridan

[DCon]

Anglo and NAMA are rolling out the solicitors.

Must. Keep. Everything. Secret.

I received notice party documents yesterday from McCann Fitzgerald solicitors in to the impending case between Anglo Irish Bank and the Commissioner for Environmental Information. NAMA are also taking a similar case. Both are in relation to requests I submitted to both organisations in early 2010.

To be clear here: my sole motivation is the public’s right to know more about Anglo Irish Bank and the National Asset Management Agency – two organisations that are costing the State a fortune, and are two of the most important bodies in the history of the State. The Environmental Regulations were the only avenue open to me from a right to information standpoint – so I have pursued the case, in partnership with Fred Logue, who holds similar views – and we intend seeing it through to the end.

The court documents are available at the below link

http://thestory.ie/2011/12/02/anglo-...EJ+(The+Story)

[DCon]

Has the government pulled a fast one here?

In December Minister for the Environment Phil Hogan amended the Access to Information on the Environment Regulations (AIE) using a statutory instrument (SI 662/2011). This amended the original Regulations SI 133/2007. Thanks to the excellent Fred Logue, here is a consolidated version:

http://thestory.ie/2012/03/11/europe...EJ+(The+Story)

[Griska]

Has the government pulled a fast one here?




http://thestory.ie/2012/03/11/europe...EJ+(The+Story)

How will this affect FOI requests?