knowledge 30 July 2015 |

NAMA found to be a “public authority” for the purposes of the AIE Regulations

In a recent judgment delivered by O’Donnell J, the Supreme Court held that the National Asset Management Agency (“NAMA”) is obliged to respond to requests from the public for environmental information under the European Communities (Access to Information on the Environment) Regulations 2007 to 2014 (“AIE Regulations”). The case turned on the meaning of “public authority” under the AIE Regulations, and the Supreme Court ultimately held that NAMA falls within the definition. The decision will require entities to consider whether it has any impact on their AIE status, as some entities that currently consider themselves to be outside the scope of the AIE regime may now be within its scope, and vice versa.

The case arose from requests for information made under the AIE Regulations by the journalist Gavin Sheridan to NAMA in 2010. NAMA refused to release the information sought on the basis that it is not a “public authority” for the purposes of the AIE Regulations. However, the Commissioner for Environmental Information (the “Commissioner”) determined that it was, based on a broad interpretation of the definition of “public authority” which it said was supported by Directive 2003/4/EC (on which the AIE Regulations are based) (the “Directive”). This interpretation was upheld on appeal to the High Court, so NAMA brought a further appeal to the Supreme Court.

 

In a unanimous judgment delivered by O’Donnell J, the Supreme Court was critical of the approach to statutory interpretation adopted by the Commissioner. O’Donnell J found that the issues surrounding the interpretation of “public authority” could not be resolved without engaging in a detailed consideration of the context of the AIE Regulations and the Directive. In particular, the Court did not agree with the construction given to the words “and includes” by the Commissioner in interpreting this definition.

 

O’Donnell J then considered the issue of whether NAMA falls within the definition. Of particular assistance to the Supreme Court’s determination was the recent decision of the Court of Justice of the European Union (“CJEU”) in Fish Legal1, which was delivered shortly after the filing of the parties’ Supreme Court submissions. The CJEU observed that public authorities are entities forming part of the public administration or the executive of the State at any level. It stated that such authorities include all legal persons governed by public law and established or capable of being dissolved by the State. For those purposes “public authorities” also include administrative authorities which are entrusted with performance of services of public interest and which are for this purpose vested with special powers beyond those which apply to private entities.

 

Applying the Fish Legal test, the Court found that NAMA is a public authority exercising public administrative functions. While it is obliged to act commercially, it is vested with special powers that go well beyond those which apply to parties governed solely by private law. The Court stated that this is especially clear given that NAMA has statutory powers of compulsory acquisition, enforcement etc and that certain remedies against NAMA are restricted or excluded.

 

It will be interesting to see to what extent the Supreme Court’s decision will be deemed by the Commissioner or the Irish courts to change the extent to which the AIE regime applies to any other entities.

  1. 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

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.