Judge cites NAMA's delay as crucial factor in decision not to grant stay

On Friday the High Court refused to grant a stay to NAMA pending its appeal to the Supreme Court against the February decision of the High Court that NAMA is a public authority and therefore subject to the Access to Information on the Environment Regulations.

The power to grant a stay pending an appeal is a discretionary power and the Court set out the test that should be applied when exercising its discretion. The Court was of the view that a balance of convenience-type test is appropriate whereby once there is an arguable appeal the Court must examine the relative prejudices flowing to various parties as a consequence of its decision to grant or refuse a stay. This test was recently enunciated in Danske Bank t/a National Irish Bank -v- McFadden.

The Court also drew support from Okunade -v- The Minister for Justice, Equality and Law Reform a 2012 Supreme Court decision which considered how courts should approach interlocutory injunctions in public law matters.

In reaching his decision the judge acknowledged that more than 1,000 days had elapsed since the request was made and was critical of NAMA’s behaviour in refusing to deal with the request by sticking firmly to the narrow issue that it was not a public authority. Despite having the resources and means to do so, NAMA decided it was not a public authority and took no further steps to process the request  thereby neutralising the whole request and ensuring the process will take further time and result in further appeal to the Information Commissioner. This elongation was, the court found, a direct result of the unnecessarily narrow approach adopted by NAMA.

According to the judgment:

NAMA decided to dismiss Mr. Sheridan’s 2010 request for information on a threshold issue as to whether or not it was a public authority. No other decision has ever been taken by NAMA on his request even though it could have decided whether or not the information he sought comprised environmental information as defined and whether or not any of the mandatory or discretionary grounds for refusal of information were applicable. Thus, by framing its refusal so narrowly, NAMA have effectively neutralised the whole of Mr. Sheridan’s request and have ensured that the process is likely to take further time and result in further appeals to the Information Commissioner. The elongation of the process for deciding Mr. Sheridan’s request seems to be the direct result of the unnecessarily narrow approach adopted by NAMA in determining the request.

NAMA adduced no evidence to show that the processing of the request would be an unreasonable administrative burden nor that irreparable harm would be done should information be released in circumstances where it transpires that it is not a public authority. Since no information would actually be released the balance of prejudice favoured refusing a stay. Furthermore the judge also was of the view that the rights of third parties were amply protected by the mandatory and discretionary grounds for refusal. As the Court noted:

No substantive argument or fact has been put before me which would persuade me that dealing with Mr. Sheridan’s request will cause an undue burden, either administratively or financially to NAMA. If it were the case that dealing with his request would cause such difficulties, such an argument should have been made in detail and possibly by affidavit evidence.

This judgment is a clear signal that it is incumbent upon public bodies who wish to refuse access to information on the basis that they are not public authorities to deal with all issues arising under the request unless it is administratively burdensome to do so. They will receive little sympathy in the courts should a narrow position lead to significant delays in processing a request for information. It also is a signal that public bodies wishing to avail of discretionary court orders which introduce delays will need to show specific evidence of immediate, irreparable harm before a court will make an order that unreasonably prolongs the processing of a request.

This judgment sets an important precedent in relation to how the courts expect to see requests for environmental information handled by public bodies  While the Commissioner for Environmental Information’s procedures did not feature in the judgment it is also certain that this judgment will have to be reflected in her office’s procedures.

While TheStory also made arguments in relation to EU and international law, the Court seemed to be satisfied that it had sufficient authority under national law to refuse a stay. It appears that we will have to wait until another time for further judicial consideration of the application of EU and international law to issues arising under the Aarhus Convention.

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