Darragh McDonagh and Galway Harbour Company

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0034
• Decision Date: 06 July 2017
• Issuer: Galway Harbour Company
• Applied Rules: Art.3(1), European Communities (Access to Information on the Environment) Regulations, 2007

Darragh McDonagh and Galway Harbour Company

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0034

Published on 6 July 2017

1. Background
2. Scope of Review
3. Relevant AIE provisions
4. Analysis
5. Decision
6. Appeal to the High Court

Background

On 30 June 2016 the appellant submitted an AIE request to GHC. GHC replied by email on the same day saying that "AIE regulations only refer to Public Authorities and in the circumstances I am not at liberty to extend the information requested". On 26 July 2016 the appellant requested an internal review of that decision. On 30 August 2016 the appellant appealed to my Office, saying that there had been "no further contact from the public body".

Scope of Review

In submissions to my office, GHC contended that it is not a public authority under the AIE Regulations. Article 11(5)(a) provides that I may review a decision to refuse a request for environmental information made "on the ground that the body or person concerned contends that the body or person is not a public authority". My review in this case is limited to determining whether GHC is a public authority within the meaning of the AIE Regulations.

In conducting my review I took account of the arguments put forward by the appellant and GHC. I had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister's Guidance); Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based; the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and The Aarhus Convention -- An Implementation Guide (Second edition, June 2014). In particular, I had regard to the Supreme Court decision in the case of the National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51 (NAMA).

Relevant AIE provisions

Article 3(1) of the Regulations provides the following definition of the expression 'public authority':

'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

(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 subparagraphs (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information.

Article (2) provides that notwithstanding anything in sub-article (1), 'public authority' does not include any body when acting in a judicial or legislative capacity.

GHC's position

GHC submitted that the Supreme Court held in NAMA that the applicable tests for determining whether an entity falls under the definition of public authority are those set out in the judgment of the Court of Justice of the European Union in Fish Legal and Emily Shirley v Information Commissioner and Others United Utilities Water Plc, Yorkshire Water and Services Ltd and Southern Water Services Ltd [2014] 2 C.M.L.R. 36.

In respect of public authorities falling under paragraph (b) of the definition, GHC said that the Fish Legal judgment confirms that the following "special powers" test determines whether a body falls within the definition:

"In order to determine whether entities...can be classified as legal persons which perform 'public administration functions' under national law...it should be examined whether those entities are vested, under the national law which is applicable to them, with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law."

In respect of public authorities falling under paragraph (c), GHC said that the Fish Legal judgment confirms that the test to determine whether a body falls within the definition is that of "genuine autonomy" stated as being as follows:

"Undertakings...which provide public services relating to the environment are under the control of a body or a person falling within Article 2(2)(a) or (b) of Directive 2003 / 4 [i.e. the equivalent of article 3(1)(a) and (b) of the AIE Regulations] and should therefore be classified as 'public authorities' by virtue of Article 2(2)(c) of that Directive [the equivalent of article 3(1)(c) of the AIE Regulations] if they do not determine in a genuinely autonomous manner the way in which they provide those services since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on their action in the environmental field."

GHC said that the above tests were also applied by me in my decision on case CEI/15/0011 (Dr Edward Fahy and Irish Fish Producers Organisation Limited).

GHC submitted that, in the NAMA case, the Supreme Court also considered the implications of sub-articles (i) - (vii) of article 3 on the...