NAMA vs OCEI costs via Twitter

Following the judgment on NAMA issued last week, Sinn Fein TD Pearse Doherty asked the Taoiseach not to pursue a Supreme Court appeal, as it would be a waste of taxpayers’ money. Just afterwards we wondered how much the case had cost and since NAMA/NTMA are not subject to FOI, we did what anyone would do in this situation, we put in a request for a Parliamentary Question instead, via Twitter:

Doherty agreed to ask the question, and last night we got the response, again via Twitter.

We’re not sure if this is a first, but it’s a nice open way to get information.

NAMA vs OCEI High Court judgment

The judgment of Colm MacEochaidh in full.

Media coverage:
The Journal – NAMA loses High Court appeal over environmental information requests – Unredacting NAMA
Irish Times – Nama loses information appeal
RTE – NAMA appeal over information requests dismissed

NAMA decision (update)

Update: The court has found in favour of the OCEI and dismissed NAMA’s appeal. We will publish a copy of the judgment as soon as we have it.

We are expecting a High Court ruling on the case of NAMA vs the Office of the Commissioner of the Environmental Information on the morning of February 27. We will update the blog once we know.

The case centres on the statutory interpretation of “and includes” in the definition of “public authority” in the Access to Information on the Environment Regulations (AIE) 2007. NAMA (and Anglo/IBRC) denied they were public authorities subject to the Regulations while the Commissioner ruled that they were. The case was then appealed to the High Court by NAMA and Anglo. first sent requests seeking information in February 2010.

NAMA case first day

The Irish Times reports today on the stuff that happened in the High Court yesterday (though references to Freedom of Information are confusing, the case is not concerned with the FOI Act, but is about access to information generally).

The case will get underway again this morning but I wanted to make a couple of observations on what happened yesterday.

First, Brian Murray SC (representing NAMA) repeatedly emphasised that if my and the Commissioner’s reading of the legislation was correct, it would have (in suitably dark tones) bring “a whole swathe” of bodies under the Access to Information on the Environment (AIE) regime. He even listed bodies “like the Central Bank” which could be subject to such onerous requests. (The Central Bank is in fact already under the AIE regime), or, horror of horrors, bodies in the semi-State sector (CIE, Bord Gais and the ESB are already in fact covered by the AIE regime) or even the DPP (which may fall under the judicial bodies exemption), but even if it did, imagine a public body like the DPP having to answer AIE requests? Terrible stuff.

Much of the argument centered on what “includes” or “ambiguous” means and how the legislation should be interpreted. Niamh Hyland, for the Commissioner, used mine and Fred’s logical construction that public authority means X and includes Y, where X is the list of bodies in a) to c) and Y is the list of bodies in (i) to (vii) and that the legislation should be interpreted as the Commissioner outlined in her decision.

NAMA and AIE (update)

As no judges were available on May 17 or 18 last, the case of NAMA vs The Office of the Commissioner for Environmental Information was put back to July 24 (tomorrow). Hopefully it will finally be heard. It’s only 2 years and five months since I put in my requests for information. The Commissioner found in my favour in September 2011, and NAMA appealed her decision to the High Court.

The case to some degree hinges on what “and includes” means in Irish law, and a judgment in favour of the Commissioner would have a pretty large affect on the access to information regime in Ireland.

Such a decision would provide legal clarity for all requesters of environmental information, decisively bringing all State-owned companies (including all port companies and Anglo Irish Bank), all bodies where boards are appointed by Ministers, all companies where board members are appointed by a Minister and all Ministers themselves under the Access to Information on the Environment (AIE) regime.

I will tweet any updates on my Twitter account @gavinsblog.


It’s not clear whether it will be for mention or hearing (I’m hoping the latter) but tomorrow sees another step in the long process of trying to find out if the National Asset Management Agency is a public authority for the purposes of the Access to Information on the Environment Regulations 2007/2011. (This is not Freedom of Information, but a separate piece of legislation). We began this process on back in February 2010 with simultaneous requests to NAMA and Anglo Irish Bank. It’s listed for Court No 4, Four Courts at 10.45am on May 17.

The core of the argument comes down to legislative interpretation. Myself and Fred Logue (who has kindly given his free time to give huge help on the matter) have argued that the “and includes” part of the legislation when referring to public authorities really does mean “and includes”. NAMA have argued that it effectively means “may include”.

The Commissioner for Environmental Information, Emily O’Reilly, agreed last September with our view. She noted:

The National Asset Management Agency has argued that allowing the word “includes” its ordinary meaning would have the consequence, in the present context, of extending the definition of public authority beyond what is envisaged in the EU Directive. What NAMA proposes is that the plain and ordinary meaning of the word, as used in the Regulations, be set aside in favour of a meaning which implies a restriction rather than an expansion or an inclusion. It is not at all clear that, as Commissioner for Environmental Information, I may abandon the plain language of the Regulations in favour of an interpretation which is arguably more in keeping with the provisions of the Directive. This is particularly the case where the language of the Regulations, in this particular instance, is neither obscure nor ambiguous.

In any case, I am not persuaded that reliance on the plain meaning of the word “includes”, as used in the definition of “public authority” in the Regulations, gives rise to an outcome which is at odds with the Directive. In fact it is very arguable that the Directive encourages and enables Member States to take an expansive approach to what constitutes a “public authority”. Recital (11) of the Directive refers expressly to an expansive intent in relation to the definition; and Recital (24) expressly permits Member States “to maintain or introduce measures providing for broader access to information than required by this Directive.” Therefore, I do not accept that subparagraphs (a) to (c) of the definition of “public authority” in the Regulations should be interpreted as restrictive criteria where a Member State has apparently chosen to take an expansive approach to the definition.

NAMA and Anglo disagreed with this view, and appealed to the High Court – leading us to this current situation.

If we are right, then NAMA becomes a public authority, but *only* for the purposes of the AIE Regulations. By extension, Anglo Irish Bank, as a company wholly owned by the Minister for Finance, would also become a public authority, but *only* for the purposes of the AIE Regulations.

And by further extension, if we are right, a Minister of the Government, a harbour authority within the meaning of the Harbours Act 1946, a board or other body (but not including a company under the Companies Acts) established by or under statute, a company under the Companies Acts, in which all the shares are held by or on behalf of a Minister of the Government or by directors appointed by a Minister of the Government, would also automatically become de facto public authorities for the purposes of the AIE Regulations.

It has always been clear to us from the beginning that as a little-known and indeed little-used legislation that cases like this were possible – since it is relatively untested. Ultimately we are seeking legal clarity and trying to push the boundaries of how citizens can access information generally – this is not just about NAMA (though NAMA is an oddly opaque organisation in my view).

It is worth noting the following:

Article 10 of the European Convention on Human Rights says:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

In TÁRSASÁG A SZABADSÁGJOGOKÉRT v. HUNGARY in 2009, the European Court of Human Rights found that there had been a violation of Article 10 when access to information was refused. The court noted “in view of the interest protected by Article 10, the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information. For example, the latter activity is an essential preparatory step in journalism and is an inherent, protected part of press freedom”

While there are cases where access should be limited to some degree, in general free access to information by citizens should be the default position. Access to information is a human right.

Environmental information is largely untested in Irish legal waters and unless the boundaries are pushed both in terms of what defines public authorities generally, and what defines environmental information, we cannot progress the right to information agenda generally.

McDonagh on the NAMA case

At a recent Oireachtas committee hearing:

Deputy Pearse Doherty: Did the board of NAMA decide to take the Information Commissioner to the High Court?

Mr. Brendan McDonagh: That is not specifically in respect of FOI. It relates to environmental regulations.

Deputy Pearse Doherty: It is freedom of information under European environmental regulations.

Mr. Brendan McDonagh: It is not FOI in the way that is understood by most people. It is a particular aspect of using European environmental regulations and trying to apply them to NAMA in respect of the underlying properties. We own the loans but we do not own the underlying properties. Those properties are held by the receivers or by the debtors. There is a technical legal point around that. The matter is before the courts so I would appreciate not having to go into detail on it. My understanding is that the senior counsel we have used in recent court case is the same senior counsel we used in respect of the environmental regulations. I am not aware of him being on the other side.

In respect of the case relating Mr. McKillen last year in the Supreme Court and the costs involved, as I informed the committee previously we still have not received costs. Those costs would go to the CSSO because the case was defended by the Attorney General. I understand it is the intention of the CSSO and the Attorney General to refer them to the Taxing Master. I checked the position approximately ten days ago and we still have not received them. That is my latest understanding of the matter.

The Deputy referred to the qualifying investor fund, QIF. Effectively, this will be an independent fund in which people will be able to invest. They will actually buy the assets involved – at arms length – from NAMA. I assure the Deputy that, in that in light of the level of due diligence we carried out in respect of acquiring the loans from the banks, when these assets are being sold by the QIF – which will have its own independent board – the information and the quality of the due diligence will be a lot less. I assure the Deputy that it will be much cheaper than was the case when we originally got the assets from the institutions.

European Communities (Access to Information on the Environment) (Amendment) Regulations 2011

In December Minister for the Environment Phil Hogan amended the Access to Information on the Environment Regulations (AIE) using a statutory instrument (SI 662/2011). This amended the original Regulations SI 133/2007. Thanks to the excellent Fred Logue, here is a consolidated version:

Update: NAMA case to go ahead

In a somewhat disappointing turn of events, the Office of the Commissioner for Environmental Information has withdrawn from High Court action between itself and the National Asset Management Agency. However the case between it and Anglo Irish Bank (IBRC) continues, and is still listed for hearing in the High Court on January 31st.

Without going into the long (and boring to many people) details of the case, it seems as though NAMA argued that because I had narrowed the scope of my request over half way through the process, this meant I had effectively withdrawn my request. But actually I narrowed the scope of my request in the hope of expediting the process, since at that stage it had lasted 18 months. At no point did I withdraw it. But it was arguable, and lawyers do love to argue (and in this case at a large financial cost to the public). Since I am not the one involved in the case (and indeed was never a notice party to it) it is not my call to withdraw the original Decision, but rather that of the Commissioner.

However, the crux of the issue remains and I hope the Anglo case resolves it.

The core issue is how to read the Access to Information on the Environment (AIE) Regulations 2007. And essentially that comes down to what “and includes” means in statutory interpretation. This question should be answered in the Anglo Irish Bank case, and any ruling that comes from it will affect NAMA (and indeed a range of other public authorities/bodies).

It is a relatively minor setback for greater transparency, but overall the fight continues both for more accountable institutions and for legal clarity.

Update: It appears the situation changed today. The case will proceed on May 17th, 2012.