The High Court recently dismissed an appeal by NAMA against a ruling by the Commissioner for Environmental Information that it is a "public authority", and subject to public access requests for environmental information, under the EC (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007) (AIE Regulations).
A journalist made a request for environmental information to NAMA, which was refused on the grounds that NAMA did not consider itself to be a "public authority" within the meaning of the AIE Regulations. The journalist appealed this decision to the Commissioner.
The term "public authority" is defined in Article 3(1) of the AIE Regulations and Article 2(2) of the Directive 2003/4/EC on public access to environmental information. Paragraphs (a) to (c) of Article 3(1) correspond to the definition in the Directive, but unlike the Directive, Article 3(1) then adds: "and includes" certain entities listed at subparagraphs (i) to (vii). At subparagraph (vi) is "a board or other body (but not including a company under the Companies Acts) established by or under statute".
The Commissioner held that the term "public authority" extended to all of the types of entities included in the list at subparagraphs (i) to (vii) regardless of whether such entities would also be captured by the categories at paragraphs (a) to (c). She found that NAMA was a "public authority" under Article 3(1)(vi) of the AIE Regulations.
NAMA appealed against the Commissioner's decision on the grounds that she had erred in law.
Mac Eochaidh J. dismissed the appeal, finding that the Commissioner had correctly interpreted Article 3 the AIE Regulations. He stated that, in interpreting a statute, a court's first duty is to discern the legislator's intention and this is derived from the ordinary and natural meaning of the words used by the legislator. If the words are plain and unambiguous they should be applied as they stand. In identifying the legislative intention he looked to the opening recitals in the AIE Regulations, where the Minister announced that the Regulations were made "…for the purpose of giving effect to Directive 2003/4/EC".
Mac Eochaidh noted that, save within a narrow margin, a Minister making Regulations, is not authorized to expand a definition beyond that identified in a parent directive. Therefore he had to presume that the bodies or persons listed in Article 3(1)(i)-(vii) of the AIE Regulations were public authorities within the meaning of the Directive. This presumption of faithful transposition is rebuttable, but NAMA had failed to argue that it was not a public body as defined in the Directive.
In addition, he took full account of the clearly stated objective of the Directive when interpreting its terms and when interpreting domestic implementing measures. Preamble 11 of the Directive provides: "the definition of public authorities should be expanded so as to encompass government or other public administration at national, regional, or local level, whether or not they have specific responsibilities for the environment."
The AIE Regulations operate in parallel with the Freedom of Information Acts 1997 and 2003 (FOI Acts). However the AIE Regulations apply to a much wider range of public bodies than the FOI Acts. The government intends to extend the remit of public bodies subject to the FOI Acts, to include public financial bodies such as NAMA and the Central Bank. A Draft FOI Bill was published last year, and the government has indicated that it intends to publish the Bill during its Spring 2013 Parliamentary Session.
It will be interesting to see how broadly the term "environmental information" under the AIE Regulations will be construed by the Irish Courts. The journalist's request to NAMA included a request for a breakdown of all assets loans and properties being transferred to NAMA, and minutes of its board meetings. As NAMA claimed it was not a public body within the meaning of the AIE Regulations, it did not rule on the issue as to whether the information sought was "environmental information". If the High Court ruling is not appealed, then NAMA will now have to consider whether the information sought constitutes "environmental information".
It is worth noting that the Commissioner recently held that the definition of "environmental information" excludes information with only a minimal connection to the environment.