Mr. Gavin Sheridan and the National Asset Management Agency (NAMA)

• Case Number: CEI/10/0005
• Decision Date: 13 September 2011
• Issuer: National Asset Management Agency (NAMA)
• Applied Rules: Art.3(1), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Gavin Sheridan and the National Asset Management Agency (NAMA)

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/10/0005

Published on 13 September 2011

1. Background
2. Analysis
3. Decision
4. 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: National Asset Management Agency (NAMA)

Whether NAMA was justified in its refusal of the appellant's request for environmental information on the ground that it is not a public authority within the meaning of the Regulations.

Summary of Commissioner's Decision: In accordance with Article 12(5) of the Regulations, the Commissioner reviewed the decision of NAMA 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 NAMA and found that it is a public authority within the meaning of the Regulations.

"Note: This decision was appealed to the High Court. Judgment of Mac Eochaidh J was given on 27 February 2013 in favour of the Commissioner A further judgment was given on 19 April 2013. The matter was appealed to the Supreme Court by NAMA. Judgment of the Supreme Court was given on 23 June 2015 dismissing the appeal.

Judgement 1

Judgement 2

Supreme Court: Mr. Gavin Sheridan and NAMA

Background

On 3 February 2010 the appellant made a request for information to NAMA in accordance with Article 6 of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007) (the Regulations). The information requested was:

"A breakdown of all assets, loans and properties due to be transferred to the Agency. This should include the value placed on the asset and by whom. It should include the addresses of all assets and properties.

A breakdown of all properties and property loans currently owned or controlled by the Agency.

Minutes of board meetings relating to the transfer of assets and properties to the Agency. The date range for this request is January 2009 to January 2010, inclusive."

On 16 February 2010 the request was refused by NAMA on the basis that it did not consider itself to be a "public authority" within the meaning of the Regulations. The appellant's subsequent request for an internal review of this decision resulted in a review decision of 19 March 2010 by NAMA in which it affirmed the original decision. On that same date,19 March 2010, in accordance with Article 12(4) of the Regulations, the appellant made an appeal to me as Commissioner for Environmental Information against NAMA'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 NAMA 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 request of 3 February 2010, 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 NAMA 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. These preliminary views of the Investigator changed as the process progressed. The detailed submissions made by the appellant and by NAMA 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 request. He did so at the suggestion of my Investigator who, at the time, was hopeful that NAMA 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. Indeed, NAMA took the view that the appellant had narrowed his request in such a way as to, in effect, have abandoned his original request; it then contended that my Office was acting in an ultra vires fashion in proceeding with the appeal.

I am satisfied, in proceeding with this appeal on the issue of whether or not NAMA is a public authority for the purposes of the Regulations, that I am acting in accordance with the powers conferred on me by Article 12 of the Regulations. It would be unconscionable that an appellant, acting in good faith in the context of seeking to settle his case would, when settlement efforts failed, be deprived of his right to an adjudication by the appeals authority.

The Definition of "Public Authority"

The issue for decision in this appeal is whether or not NAMA 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 NAMA 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 NAMA should be regarded as a public authority, his fundamental argument is that NAMA is a body captured at item (vi) above in the list of entities which the definition of public authority "includes". For its part, NAMA 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 (vi) above in the list of entities which the definition of public authority "includes".

Appellant's position

The appellant's position is that NAMA is a public authority for the purposes of the Regulations by virtue of Article 3(1)(vi) on the basis that it is "a board or other body (but not including a company under the Companies Acts) established by or under statute". The appellant argues that "[t]here is no need to reference further any other part of the legislation, Article 3(1 )(vi) is wholly and entirely sufficient for NAMA to fall under the Regulations, as it is a body established by or under statute." In his submission of 4 October 2010, the appellant sets out his argument further:

"The definition in Article 3 of the Regulations is...