The High Court has dismissed the National Asset Management Agency’s appeal against a decision that it was a public authority under Ireland’s environmental information rules.
In a judgment delivered on 27 February 2013, Mr Justice Colm Mac Eochaidh held that NAMA came within Article 3(1)(vi) of the European Communities (Access to Information on the Environment) Regulations 2007. That provision lists a board or other body established by or under statute, excluding companies under the Companies Acts.
The case followed an environmental information request made to NAMA by Gavin Sheridan on 3 February 2010. NAMA refused the request. The Commissioner for Environmental Information later annulled that refusal, finding NAMA was a public authority and directing it to deal with the request. The Commissioner said the listed bodies in Article 3(1)(i) to (vii) qualified without needing to meet the separate descriptions in paragraphs (a) to (c).
NAMA argued that the listed categories had to be read in the context of those descriptions, and that the Commissioner’s interpretation went beyond the EU directive the Regulations implemented. It also disputed the High Court’s powers to remit the case or substitute its own decision. The Commissioner argued that the listed bodies were deemed to be public authorities and that the Regulations should be interpreted consistently with the directive’s broad access purpose.
The judge concluded that the Commissioner had reached the correct result. He said the listed bodies were deemed public authorities under the Regulations, and rejected NAMA’s argument that “and includes” should be read as “may include”. He also said NAMA had not established that it fell outside the directive’s definition of a public authority. Whether NAMA met one of the separate tests in paragraphs (a), (b) or (c) was not before the Commissioner or the High Court in this appeal.
The court differed from the Commissioner on one part of her reasoning: the judge did not consider that “and includes” had an expansive effect capable of extending the definition beyond the directive. He said that difference did not undermine the decision under appeal. The court agreed it had jurisdiction to remit the matter, but saw no reason to do so. It dismissed NAMA’s appeal. The judgment did not decide the underlying information request.