Anglo vs the Commissioner for Environmental Information

I received notice party documents yesterday from McCann Fitzgerald solicitors in to the impending case between Anglo Irish Bank and the Commissioner for Environmental Information. NAMA are also taking a similar case. Both are in relation to requests I submitted to both organisations in early 2010.

To be clear here: my sole motivation is the public’s right to know more about Anglo Irish Bank and the National Asset Management Agency – two organisations that are costing the State a fortune, and are two of the most important bodies in the history of the State. The Environmental Regulations were the only avenue open to me from a right to information standpoint – so I have pursued the case, in partnership with Fred Logue, who holds similar views – and we intend seeing it through to the end.

These are the court documents:

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.


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:

Reply to Anglo Irish

As mentioned previously, I am arguing that Anglo Irish Bank is a public authority for the purposes of the Environmental Information Regulations (EIR) (SI 133/2007). Here is my reply to Anglo’s submission:

Anglo Irish Bank – a public authority?

Readers may recall that at the start of this year we submitted two Environmental Information Regulations requests (EIRs, not FOIs). One was sent to the National Asset Management Agency and the other was sent to Anglo Irish Bank Corporation Limited – the nationalised bank. Both organisations replied by saying that they did not consider themselves to be public authorities for the purposes of the Regulations.

I have already blogged extensively about our argument with NAMA, that we believe it is clearly a public authority for the purposes of the Regulations. For a chronological look through that argument try these links

NAMA denies status as a public authority April 21, 2010
NAMA submission April 22, 2010
NAMA status June 30, 2010
Is NAMA a public authority July 27, 2010
NAMA reply August 1, 2010
The NAMA saga continues September 27, 2010

We are now awaiting a binding decision by the Office of the Commissioner for Environmental Information in relation to NAMA’s status as a public authority for the purposes of the Regulations.

Events have also now moved forward in relation to Anglo Irish Bank. In February this year I started the process by seeking information from Anglo in relation to its loan book, and to the travel expenses of its executives. Anglo denied it was a public authority and I appealed the decision to the OCEI. I have now received a copy of Anglo Irish Bank’s submission to the OCEI giving its legal argument as to why it believes it is not a public authority.

However, Anglo has sought to exert confidentiality over its 16-page legal submission (a copy of which I and the OCEI have), stating that the submission contains:

details of the management of the bank, its relationship with the Minister for Finance and the relationship framework established under the Anglo Irish Bank Corporation Act 2009 constitute confidential management information which should not be disclosed further than is necessary for the purposes of dealing with the appeal to the Commissioner

The OCEI have stated that they have not formed a view on the status of the information contained in the submission. However with the help of a very dedicated individual we have now drafted and completed our reply to Anglo’s submission. We will be publishing our submission shortly. We are unsure as to the status of Anglo’s submission in legal terms – but will seek advice from OCEI about whether we have a legitimate right to publish their submission.

Covanta contract with Dublin City Council

Here is a copy of the Covanta (Dublin Waste to Energy Limited) contract with Dublin City Council (related to Poolbeg incinerator), in redacted form, released under the Environmental Information Regulations:

The NAMA saga continues

Long time readers will recall that this blog has been having something of a legal disagreement with both the National Asset Management Agency (NAMA), and more recently our own Office of the Commissioner for Environmental Information (OCEI). The saga has now been running for eight months, and looks set to continue for some time yet.

For new readers (and we see from our subscriber figures that there are many new readers) we should perhaps recall how this legal battle commenced. Back in February, realising that NAMA does not come under Freedom of Information (FOI) legislation – because our Minister for Finance decided not to prescribe it – we instead turned to that other arm of right to information legislation: the Environmental Information Regulations, or EIR for short.

We sent a request for information to NAMA, which was promptly refused on the basis that NAMA did not consider itself to be a public authority for the purposes of those regulations (SI 133/2007). We disagreed, citing that the Regulations stated that a body “established by or under statute” (and also that the board was appointed by the Minister) was a public authority, and therefore NAMA was a public authority. In disagreeing, we sought an internal review from NAMA. NAMA complied, and their internal review agreed with their original decision, that NAMA was not a public authority. We then appealed the matter to the OCEI, a sort of sister office to the Information Commissioner, and also headed by Emily O’Reilly. We also added a further submission to that appeal. Months passed, after which we received a letter from the OCEI – a preliminary decision which agreed with NAMA that it was not a public authority, and seeking our response. We then replied to that preliminary decision, as we were asked by the OCEI to do.

Last week we received a copy of NAMA’s reply to our response, and have been invited to make a further submission, in advance of a binding decision by the OCEI. This has actually become reasonably technical on a legal level – but we believe it is all really rather simple. The core argument (among two other significant arguments) is actually based on how one reads the legislation.

The legislation states:

“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

(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 Com-
panies Acts) established by or under statute,

(vii) a company under the Companies Acts, in which all the shares are

(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 pos-
sessing environmental information;

Simple, right? One would think so, but NAMA doesn’t see it that way.

As far as NAMA is concerned, and indeed the preliminary view of the OCEI, it hinges mainly on what the words “and includes” mean. For us the legislation says:

a “public authority” means X and includes Y

where X represents the three types of public authority 3(1)(a)-(c) and Y is a list of bodies and categories of bodies i.e. 3(1)(i)-(vii). We believe NAMA clearly falls within the definition of 3(1)(vi). But NAMA reads parts (i) – (vii) as a subset of (a-c).

You could say we are at loggerheads on this one. And this actually goes beyond whether NAMA is or is not a public authority under this legislation. The disagreement here is so fundamental that it affects all other types of bodies that may or may not be public authorities under the same legislation. It is of fundamental importance to how this legislation is applied in the future, and could decide on how limited, or unlimited, the definition of public authorities becomes. Dozens of bodies could be included or excluded on the basis of how this legislation is interpreted.

Here is the letter from NAMA on this case:

A reply to this letter has already been drafted (with huge, indeed massive help from a reader of the blog), and we will publish it here once submitted. Should the OCEI find against us, and find that NAMA is not a public authority, our only recourse would then be to the High Court on a point of law.

The support of our readers, particularly those legal pros among you, is of course always appreciated.

CIE fuel consumption (part 2)

Last week I published information released by CIE in relation to the amount of diesel the company consumed over the five years from 2005 to 2009. I pointed out to CIE that their figures for totals, and as a result for carbon emissions, might be incorrect.

CIE have got back in touch to say that the figures were incorrect, and they have now issued revised figures. We all make mistakes.

The totals I published are the correct ones, so the revised figures are:


CIE fuel consumption 2005 to 2009

A very long time ago I sent a request to Coras Iompar Eireann, the operator of Dublin Bus, Iarnrod Eireann and Bus Eireann seeking information on how much fuel they consumed, its cost, and the estimated carbon footprint. They have replied, finally, to my request.

In the five years from 2005 to 2009, CIE consumed 546,257,128 litres of diesel. This equates to approximately 1.747 billion kilos of carbon (at 3.2kg per litre), or 1,747 metric kilotonnes. The numbers are broken down as follows:

Dublin Bus consumed 168,940,369 litres from 2005 to 2009 (31% of total)
Iarnrod Eireann consumed 234,874,458 litres from 2005 to 2009 (43% of total)
Bus Eireann consumed 142,442,301 litres from 2005 to 2009 (26% of total)

The carbon dioxide emissions amount to over five times the mass of the Empire State Building.

CIE refused to give costs information on the basis of commercial sensitivity. The process of getting this information was an interesting one in itself and I will write more on this and give a further analysis of the data soon.