A dispiriting day for transparency yesterday with the publication of the Court of Appeal decision in one of our cases.
It involved Raheenleagh Power DAC [designated activity company] a joint venture originally set up by Coillte and ESB Wind, a subsidiary of the ESB.
In a previous High Court judgment, Raheenleagh Power had been deemed a public authority for the purposes of requests made under the AIE [Access to Information on the Environment] Regulations.
However, the Court of Appeal has now overturned that decision saying Raheenleagh Power is not a public authority and therefore, requests for information cannot be made to it.
The decision has widespread implications for public authorities and public bodies that set up subsidiaries or designated activity companies, or other similar spin-offs to carry out their business.
This is already a common practice, especially within the commercial semi-state sector and also among local authorities.
Yesterday’s decision appears to put all such subsidiaries beyond the reach of the AIE Regulations, and seems certain to encourage public bodies to set up such vehicles to avoid transparency over their activities.
Particularly problematic for us is the idea that such a company – originally a joint venture between two public bodies – could be considered “autonomous” and totally separate.
This seems difficult to reconcile when all of its directors (at least at first) were staff members of ESB and Coillte.
The court did find that Raheenleagh met part of the test of whether it was a public authority because it had been given powers to compulsorily purchase land.
However, the court said it wasn’t a public authority in that it had not been entrusted with a service of public interest.
The judgment said: “The generation of electricity is no longer the provision of a service in the public interest.”
The judgment is available here and we are currently considering whether it will be appealed.