NAMA v Commissioner for Environmental Information

JurisdictionIreland
JudgeO'Donnell J.
Judgment Date23 June 2015
Neutral Citation[2015] IESC 51
CourtSupreme Court
Docket Number159/2013,[S.C. No. 159 of 2013]
Date23 June 2015
Between
National Asset Management Agency
Appellant
and
Commissioner for Environmental Information
Respondent

[2015] IESC 51

Denham C.J.

Murray J.

Hardiman J.

O'Donnell J.

Dunne J.

159/2013

THE SUPREME COURT

Environment – Disclosure of information – Public authorities – Appellant seeking to appeal decision of the respondent – Whether respondent erred in law in law in finding that the appellant is a public authority

Facts: The appellant, the National Asset Management Agency (NAMA), received a request in February 2010 from a Mr Sheridan seeking access to environmental information under the European Communities (Access to Information on the Environment) Regulations 2007. NAMA refused to accede to the request on the grounds that it did not consider itself a public authority within the definition set out in the Regulations. In March 2010, Mr Sheridan initiated an appeal to the Office of the respondent, the Commissioner for Environmental Information. In June 2010 an investigator in the Office concluded that it was not sufficient merely to look at the broad words of subparagraph (vi) of the Regulations alone, and that it was necessary to consider whether the entity also satisfied the provisions of subparagraph (b) of the Regulations which were the only applicable provisions in this case. In May 2011, the investigator was disposed to reverse her view and to conclude that NAMA was indeed carrying out a function of public administration and therefore qualified as a public authority under subparagraph (b) of the Regulations and that NAMA fell plainly within the provision of subparagraph (vii). That conclusion was reached by reliance solely on national law and on principles of statutory interpretation. This second view provoked further disputes, both as to its terms, and the process by which it emerged. NAMA sought to invoke the provisions of the regulations permitting the decision to be appealed on a point of law to the High Court. In February 2013, the High Court ruled that the decision of the Commissioner should be upheld, reasoning that the proper approach to a measure implementing a directive of the European Community (or Union) was outlined in MST and JT v Minister for Justice, Equality and Law Reform [2009] IEHC 529. On appeal to the Supreme Court, in November 2011, the appellant sought to appeal the decision of the Commissioner on the grounds that the respondent erred in law in finding that the appellant was a public authority within the meaning of the AIE regulations. NAMA argued that the Court may only determine whether the Commissioner was correct to adopt a meaning of 'public authority' on the assumption, or possibility, that Ireland as a member state had adopted a broader implementing measure than was strictly necessitated by the terms of Council Directive 90/313/EEC; if, as NAMA contended, this was incorrect, then the case should be remitted to the Commissioner to consider the true interpretation of the scope of the Directive.

Held by O"Donnell J that this case at all of its stages manifests the difficulty of seeking to resolve difficult issues by reference to rules of thumb and proposed shortcuts, whether of permitted expansive implementing provisions, a supposed meaning of the word 'include', or a presumption of faithful transposition. O"Donnell J considered that the Regulations themselves cannot be truly interpreted, and in particular, meaning cannot be assigned to subparagraph (vi), without considering the scope and meaning of the definition section in the Directive (and prior to that in the Aarhus Convention), and which since the words are identical has the effect of defining the scope of the provisions contained in subparagraphs (a) to (c). O"Donnell J held that Case C-279/12 Fish Legal & Emily Shirley v Information Commissioner, United Utilities Water Plc, Yorkshire Water and Services Ltd and Southern Water Services Ltd [2014] 2 CMLR 36 provides an authoritative interpretation of the Directive, and moreover does so in the context of a common law system. Applying that test O"Donnell J held it to be clear that NAMA is indeed a public authority exercising public administrative functions. O"Donnell J noted that the scope and scale of the body created is exceptional; indeed if it were not so it would not be in a position to carry out the important public functions assigned to it in the aftermath of the financial crisis.

O"Donnell J held that, for the reasons set out above, the appeal should be dismissed.

Appeal dismissed.

Judgment of O'Donnell J. delivered on the 23rd of June, 2015.
1

This is a long drawn out and contentious dispute conducted between two public bodies at public expense, which is one further illustration of the truth that some disputes are so bitter because the stakes are so low. The increased public availability of information held by official bodies in relation to the environment is part of the international trend towards both greater sensitivity to, and protection of, the environment and greater disclosure of information, transparency if you will, in relation to public bodies. In Ireland, this development can be traced to international roots, and in some cases to specific provisions of European law. It is important therefore, in seeking to understand the provisions of Irish law, to set them in their European and international context.

2

A useful starting point is Council Directive 90/313/EEC adopted on the 7th of June 1990 on the freedom of access to information on the environment ('Directive 90/313/EEC'). This Directive provided that member states should ensure, subject to limitations and exceptions contained within Directive 90/313/EEC, that 'public authorities' were required to make available information relating to the environment to any natural or legal person at his request, and without he or she having to prove any specific interest. 'Public authorities' were defined, with some logic, as authorities having responsibilities possessing information in relation to the environment. Thus the definition contained at Article 2(b) of the Directive provided as follows:

'"public authorities" shall mean any public administration at national, regional or local level with responsibilities, and possessing information, relating to the environment with the exception of bodies acting in a judicial or legislative capacity.'

While the concepts of 'public administration' and 'responsibilities...relating to the environment' might require some elaboration, this provision was relatively clear, and in particular established that for an entity to be subject to the provisions of the Directive it must satisfy at least two criteria: (1) it must be a public authority; and (2) it must have responsibilities relating to the environment.

3

The next step in this chronology was the adoption of the Aarhus Convention on the 25th of June 1998 (Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters) ('the Convention' or 'the Aarhus Convention') which was an international agreement under the auspices of the United Nations to which both Ireland and the European Union ('EU') are parties. While the Convention sought to pursue the same aims and had the same focus as Directive 90/313/EEC, it had a different drafting history, since it was the product of an international consensus extending well beyond Europe. In respect of access to information it adopted a very similar structure to the Directive in imposing a requirement of disclosure of information on public authorities. However, it deliberately defined public authority more broadly than the Directive. Thus Article 2.2 of the Convention provided:-

'"Public authority" means:

(a) Government at national, regional and other level;

(b) Natural or legal persons performing public administrative functions under national law, including specific duties, activities or services in relation to the environment;

(c) Any other natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment, under the control of a body or person falling within subparagraphs (a) or (b) above;'

4

When the above definition of public authority is placed alongside that contained in Directive 90/313/EEC, it is obvious that a broader approach was taken in the Aarhus Convention. It is clear that it is only in subparagraph (c) (a natural or legal person under the control of a body or person falling within subparagraph (a) or (b)) that it is required that the particular entity functions or provides services in relation to the environment. In the case of entities coming within subparagraph (a) or (b), that qualification does not apply. The concept of '[g]overnment at national, regional and other level' addressed in subparagraph (a) is reasonably clear, although there may perhaps be some debate at the margins as to what is captured by that definition. More difficulty however is created by subparagraph (b), particularly when regard is had to the fact that the Convention is meant to apply in, and relate to, the legal systems of very many contracting states with different legal systems. In one sense the last portion of the definition ('including specific duties, activities or services in relation to the environment') might be thought to be superfluous since it does not limit or otherwise define or indeed describe the type of entity captured by the definition. The concept can perhaps be understood as meaning 'including but not limited to' such specific duties, activities etc. Once that is understood, subparagraph (b) can be read as applying to 'natural or legal persons performing public administrative functions under national law' which directs attention to the key concept of 'public administrative...

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