Supreme Court rules NAMA is a “public authority” with obligations to provide environmental information

In NAMA v Commissioner for Environmental Information [2015] IESC 51, the Supreme Court held that NAMA is a "public authority" and subject to public access requests for environmental information under the European Communities (Access to Information on the Environment) Regulations 2007 (the Regulations). 

The Supreme Court found that NAMA performs "public administrative functions under national law” for the purposes of Article 3(1)(b) of the Regulations, as it is a body “vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law”.

Background
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 Regulations. The journalist appealed this decision to the Commissioner for Environmental Information.

The Regulations implement Directive 2003/4/EC on public access to environmental information (the Directive) into Irish law, and contain a similar definition of the term "public authority". Paragraphs (a) to (c) of Article 3(1) of the Regulations correspond to the definition in Article 2(2) of the Directive.  However, the Regulations then expand on the Directive, by adding "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 listed in 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 Regulations. NAMA appealed against the Commissioner's decision on the grounds that she had erred in law.

High Court Decision
At the High Court, Mac Eochaidh J. dismissed the appeal, finding that the Commissioner's decision should be upheld.  He noted that, save within a narrow margin, a Minister making Regulations is not authorised to expand a definition beyond that identified in a parent directive.  However, he followed Cooke J., in M.S.T and J.T. v Minister for Justice, Equality and Law Reform [2009] IEHC 529, that there is a presumption that the legislative purpose is to give full effect to EU law, and no more. Mac Eochaidh J. therefore presumed that the entities listed at subparagraph (vii) were public authorities within the meaning of the Directive. He concluded that NAMA had failed to rebut that presumption, because it had failed to argue that it did not come within the definition of public authority in the Directive.  NAMA appealed to the Supreme Court.

Supreme Court Decision
The Supreme Court dismissed the appeal.  O’Donnell J. held (Denham CJ, Murray J, Hardiman J and Dunne J concurring) that:

  • The Commissioner had incorrectly interpreted the word "include" in the Regulations, as extending the definition of "public authority" as defined by the Directive (which would be beyond the Minister’s powers). O'Donnell J. held that the word "include" here was not used to extend the meaning of paragraphs (a) to (c), but rather to illustrate the type of body included within the core definition.
     
  • The High Court Judge's approach to resolving the case through a presumption of faithful transposition which had not been rebutted was undesirable. It left unresolved the fundamental legal issue as to whether NAMA was actually captured by the provisions of the Regulations as properly construed. It also rendered the decision of virtually no effect as a precedent for the Commissioner and for any member of the public dealing with NAMA. Furthermore, the Trial Judge was wrong to conclude that no attempt had been made to rebut the presumption of faithful transposition, as the entire thrust of NAMA's arguments was to the effect that it did not fall within paragraphs (a) to (c) and the definition of public authority in the Regulations (and therefore the Directive).
     
  • In determining whether NAMA was a "public authority" under the Regulations, it was necessary to consider the scope and meaning of the definition within the Directive (and the Aarhus Convention). The definition section of the Directive is unclear.  O'Donnell J. stated that he would have considered it necessary, at the time of the High Court decision, to refer a question to the Court of Justice of the European Union (CJEU) as to whether a body such as NAMA was a public body, for the purpose of the Directive, which performed public administrative functions.
     
  • However, the CJEU's decision in Fish Legal v The Information Commissioner and others (C-279/12) has since provided an authoritative interpretation of the Directive. That case interpreted "Any natural or legal person performing public administrative functions under national law" (Article 3(1) (b)) as meaning a person or body "vested with special powers well beyond those which result from the normal rules applicable in relations between persons governed by private law."  Based on that interpretation, NAMA was a public authority exercising public administrative functions, for the purposes of Article 3(1)(b) of the Regulations.
     
  • Although, like the water companies in Fish Legal, NAMA is obliged to act commercially, it clearly has special powers beyond private law powers.

Comment
The Supreme Court's decision helpfully provides a clearer definition of what constitutes a "public authority" for the purposes of the Regulations. It should assist other bodies in determining whether they fall under the scope of the Regulations. 

The decision also shows that in applying and interpreting any provision of the Regulations, regard should be had to the Directive and the Aarhus Convention. It highlights that as the Regulations are secondary, rather than primary, legislation, they can go no further than implementing the Directive. Anything more will be unconstitutional.

For further information please contact Davinia Brennan at dbrennan@algoodbody.com.

Date published: 14 July 2015