Month: September 2011

Anglo Irish Bank – a public authority under EIR

Similar in nature to the earlier NAMA decision, the Commissioner for Environmental Information today ruled that Anglo Irish Bank (now known as the Irish Bank Resolution Corporation) is a public authority for the purposes of the Environmental Information Regulations (EIR). It relates to requests I submitted to the Bank in February 2010, which the bank had refused on the basis that it claimed it was not a public authority within the meaning of the Regulations.

The decision means that the Bank is now open to requests under the Regulations, allowing citizens to submit requests for environmental information.

IT DOES NOT MEAN ANGLO IS SUBJECT TO FREEDOM OF INFORMATION REQUESTS.

Apologies for the caps but the two are often confused. Again a huge thanks to Fred Logue who provided huge assistance in drafting submissions in relation to this case.

As the Regulations are little used, what defines environmental information has yet to be broadly defined but it could encompass a very broad range of information. For an easy way to get an idea of what environmental information could include, take a look at this UK guidance booklet and the UK version of the same legislation. Also take a look at Decision Notices in the UK in relation to EIR. Previous decisions by our Commissioner for Enviromental Information are available here, while the Irish guidance notes are here.

Interestingly, the Bank also took the view that our reading of the legislation was “absurd”. This is the decision in full:


NAMA – A public authority

Update: December 2011: This case has been appealed to the High Court.

In February of 2010 I sent a request to NAMA asking for a set of information under the Environmental Information Regulations (EIR) (SI 133/2007) (NOT the same as FOI, but similar). NAMA refused on the basis that it did not consider itself a public authority for the purposes of those regulations. As was my right, I appealed to internal review to a more senior member of staff in NAMA. I was again refused. I then appealed to the Commissioner for Environmental Information (we are into May 2010 now).

I asked for legal help on a blog post, because the issues that were arising were legally complex. Fred Logue, who has a background in legal stuff, offered to help. I am hugely indebted to him for all of his help with this case – it required extensive legal research and lengthy submissions (all of which I will publish here).

Last Summer in an initial preliminary view, the Office of the Commissioner for Environmental Information took the view that NAMA was correct in their view, and that myself and Fred were wrong in our interpretation of the legislation. I blogged about it at the time. The Office then asked for further submissions in light of this view, both from myself and from NAMA. We did so. There were then further submissions on top of those, and more, right up until the end of 2010.

The core argument Fred and myself made was this: The legislation uses the phrase “and includes” in its definition of public authority. We argued that this has the logical meaning of inclusion, rather than exclusion. NAMA’s argument was essentially that ‘and includes’ really means ‘may include’. Without getting too much into the legal arguments, here is the law in question:

““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
[133] 5
(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 subparagraph (I) or (II) applies, having
public administrative functions and responsibilities, and possessing
environmental information;”

Simply put, our argument was that NAMA fell under “(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute”. NAMA argued that it had to fall under (a), (b) or (c) before it could be included in (i) to (vii).

In her decision today the Commissioner has agreed with our view that “and includes” means “and includes” and therefore NAMA is a public authority. By extension it also means that any company under the Companies Acts, in which all the shares are held by or on behalf of a Minister of the Government is also a public authority for EIR purposes. This would include Anglo Irish Bank.

The result is not just that NAMA is a public authority, but that the legislation itself is clarified so as to expand the scope of what defines public authorities in Ireland. This is a victory for transparency in Ireland. NAMA have leave to appeal the decision to the High Court, on a point of law, within eight weeks.

Any questions? Direct to gavinsblog AT gmail DOT com

This is the decision:


The case against David Drumm

Ever wonder where stories like this originate? Says Simon Carswell:

From September 2008, as the Irish banking crisis deteriorated, Ms Drumm opened 15 accounts in eight banks in her sole name. Cash was transferred to the couple’s joint accounts or her own accounts, the trustee has claimed.

Mr Drumm has yet to respond to a litany of allegations made by the trustee and Anglo Irish Bank in the bankruptcy proceedings.

Ms Dwyer said in a new complaint filed in the US court that she intends to sell Mr Drumm’s home in the Boston suburb of Wellesley, the property at Stage Neck Road in Cape Cod purchased for $4.2 million and his former home in the Abington estate in Malahide.

She claimed that Ms Drumm gave her husband “a fictitious loan” of $210,000 which was sourced from his earnings. The loan was “a sham transaction” to invest in Mr Drumm’s new business in the US to qualify for a temporary visa, and the funds were used as “a personal piggybank” to spend on his personal finances and “to disguise and conceal the transfers made to Mrs Drumm”.

But how about reading the original document? The document that outlines in extraordinary detail the transfers, amounts, the timeline, the names, the dates – words and phrases like “insider loans”, “improper”, “concealed”, “surreptitious negotiation” and “fraudulently” – all alleged by the bankruptcy official.

I’ve gone and bought the particular document, among others:


Interim report on the Glackin Report

This is the Interim Report on the Glackin Report, written by the Select Committee on Enterprise and Economic Strategy in 1993. It was written after the publication of the Glackin Report (also known as the Chestvale Properties Limited and Hoddle Investments Limited Report). We do like reports.



Ned O'Keeffe mobile phone expense claims

These are the mobile phone expense claims of Ned O’Keeffe for 2004 – 2009. Thanks to the Sunday Times for the documents. The Irish Mail on Sunday has made certain claims about how the claims, and complaints over them, have been handled by the Oireachtas.


Reformatory and industrial schools system report 1970

This is the Reformatory and industrial schools system report 1970, which was chaired by District Justice Eileen Kennedy. It is also known as the Kennedy Report.



Grangegorman Board minutes 1956

These are the minutes of meetings of the board of Grangegorman Mental Hospital from 1956.


Grangegorman Board minutes 1954

These are the minutes of meetings of the board of Grangegorman Mental Hospital from 1954.