Mr. Gavin Sheridan and Anglo Irish Bank

• Case Number: CEI/10/0007
• Decision Date: 01 September 2011
• Issuer: Anglo Irish Bank
• Applied Rules: , European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Gavin Sheridan and Anglo Irish Bank

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/10/0007

Published on 1 September 2011

1. Summary of Commissioner's Decision:
2. Background
3. Analysis
4. Decision
5. Appeal to the High Court

Appeal to the Commissioner for Environmental Information

European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007)

Appellant: Mr. Gavin Sheridan

Public Authority: Anglo Irish Bank (the Bank)

Issue: Whether the Bank was justified in its refusal of the appellant's request on the ground that it is not a public authority within the meaning of the European Communities (Access to Information on the Environment) Regulations 2007 (the Regulations)

"Note: This decision was appealed to the High Court. "

Summary of Commissioner's Decision:

In accordance with article 12(5) of the Regulations, the Commissioner reviewed the decision of the Bank and found that it was not justified in refusing the request on the ground that it is not a public authority within the meaning of the Regulations. She annulled the decision of the Bank and found that it is a public authority within the meaning of the Regulations.

Background

In a request made to Anglo Irish Bank, dated 8 February 2010, the appellant sought access under the Regulations to the following records:

1. "All minutes of board meetings from January 2009 to January 2010, inclusive, insofar as such meetings relate to property or property related loans.

2. A breakdown of all properties owned or controlled by the Bank, or its agents or subsidiaries, (including any charges held over any properties, by it or its subsidiaries [sic] companies), to include the following data: for how much they were purchased, the date of the purchase, any amount owned, the address and/or land coordinates of the properties, the current estimated value of the properties, all environmental impact assessments, risk reports, other assessments and economic analyses carried out in relation to all properties and lands and their related loans. The date range for this request is January 2009 to January 2010, inclusive.

3. A breakdown of all security, collateral or charges held by the bank in relation to property."

In a second request dated 12 February 2010, the appellant sought access to additional records as follows:

1. "A breakdown of all flights paid for, directly or indirectly, by the Bank or its subsidiaries. This should include the price paid, the duration, the destination, the staff member who took the trip, and any estimate of carbon emissions in relation to the flight. The date range for this request is January 2007 to January 2010, inclusive.

2. A breakdown of all properties leased by the Bank. This should include the address of the property, the purpose of the lease and the cost of the lease. The date range for this request is January 2009 to January 2010, inclusive.

3. All minutes of board meetings related to flights and leasing of properties. The date range for this request is January 2008 to January 2010, inclusive."

In both requests, and in anticipation of the Bank taking the opposite view, the appellant asserted that the Bank is a "public body" (sic) authority under Article 3(1)(vii) of the Regulations. (In fact, the Regulations refer to "public authority" rather than to "public body".) In support of his assertion, the appellant pointed out that, by virtue of S.I. No. 320 of 2009, the Bank is a prescribed public body for the purposes of the Ethics in Public Offices Act 1995.

The Bank refused the requests primarily on the basis that it was not a public authority within the meaning of the Regulations. On 1 April 2010, the appellant appealed to my Office against the Bank's decision.

Article 12 of the Regulations provides for an independent appeals mechanism and establishes the Office of Commissioner for Environmental Information to operate that appeals mechanism. Article 12(3) of the Regulations provides for the right of appeal to the Commissioner by a person whose request for environmental information has been refused. Article 11(5)(a) of the Regulations clarifies that a decision to refuse a request for environmental information, which may be appealed to the Commissioner, includes a request that "has been refused on the grounds that the body or person concerned contends that the body or person is not a public authority within the meaning of these Regulations".

In this present appeal, the decision under review by me is the decision of the Bank that it is not a public authority within the meaning of the Regulations. This appeal is not concerned with whether the information sought by the appellant, in his requests as set out above, constitutes "environmental information" as defined in the Regulations; nor is this appeal concerned with whether, in the event that the information sought is "environmental information", it falls to be made available to the appellant in accordance with the Regulations.

In the course of the conduct of this appeal my Office has had extensive contacts both with the Bank and with the appellant. Both parties to the appeal have made substantial submissions in support of their respective positions. While it is not necessary to set out the content of these submissions in detail in this decision, I can confirm that I have had full regard to these submissions in the course of making my appeal decision. In the course of the appeal also, the relevant Investigator in my Office set out, for the benefit of the parties, her preliminary views on the matters at issue in the appeal. The detailed submissions made by the appellant and by the Bank include responses to the preliminary views set out by my Investigator.

In the course of the appeal, the appellant decided to narrow the scope of the information covered by his requests. He did so at the suggestion of my Investigator who, at the time, was hopeful that the Bank might reconsider its position that it is not a public authority (for the purposes of the Regulations). Had this happened, the issues then would have been the substantive issues of whether the information sought constitutes environmental information and, if so, whether it should be made available. My Investigator took the view that narrowing the request, to what self-evidently constituted environmental information, would be likely to simplify the adjudication process. These efforts were made in the context of an attempt to bring the parties to the appeal together with a view to settling the matter, whether in full or in part, by agreement. In the event, these efforts did not succeed.

The Definition of "Public Authority"

The issue for decision in this appeal is whether or not the Bank constitutes a "public authority" for the purposes of the Regulations.

Article 3(1) of the Regulations provides that

" '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 3(2) provides:

"Notwithstanding anything in sub-article (I), 'public authority' does not include any body when acting in a judicial or legislative capacity."

It is clear that the Bank does not act either in a judicial or legislative capacity and, accordingly, that Article 3(2) has no relevance to this case.

While the appellant has made various arguments as to why the Bank should be regarded as a public authority, his fundamental argument is that the Bank is a body captured at item (vii)(I) above in the list of entities which the definition of public authority "includes". For its part, the Bank has made wide-ranging arguments in support of its case that it is not a public authority and, in particular, argues that it is not captured at item (vii)(I) above in the list of entities which the definition of public authority "includes".

Appellant's Position

The appellant maintains that the Bank is a public authority for the purposes of the Regulations by virtue of Article 3(1)(vii)(I), because it is a company under the Companies Act in which all the shares are held by the Minister for Finance. In his submission dated 8 December 2010, the appellant explains his view of the matter as follows:

"The definition in...