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NAMA loses High Court appeal over environmental information requests

The High Court finds that NAMA has a legal requirement to respond to requests for environmental data from the public.

Treasury Buildings in Dublin, home of NAMA. The agency has lost a High Court appeal against its requirement to answer requests for environmental information.
Treasury Buildings in Dublin, home of NAMA. The agency has lost a High Court appeal against its requirement to answer requests for environmental information.
Image: Leon Farrell/Photocall Ireland

Updated, 11:39

THE HIGH COURT has dismissed an appeal by the National Asset Management Agency against a finding that it had a legal responsibility to deal with public requests for environmental information.

The State-owned ‘bad bank’ failed in its bid to overturn a finding by the Commissioner for Environmental Information, Emily O’Reilly, who had ruled in September 2011 that NAMA was a ‘public authority’ as outlined in regulations on environmental information.

Requests for environmental information are governed under a system similar to Freedom of Information requests, and are governed by a European directive from 2003 which is transcribed into Irish law by a statutory instrument from 2007.

The dispute arose after Gavin Sheridan of transparency blog TheStory.ie made a request to NAMA, in 2010, seeking details of any environmental information impact requests it had carried out.

NAMA dismissed the application, arguing that it did not fall under the scope of the regulations. Sheridan appealed to the Commissioner for Environmental Information, who ruled that NAMA fell within the definition of a public body outlined in the 2007 regulations.

NAMA then appealed to the High Court on a point of law, disputing the Commissioner’s interpretation.

‘And includes’

The dispute centred on the meaning of the words “and includes”, which NAMA said could be interpreted as ‘may include’ – meaning it could be excluded from the scope of the regulations.

This morning Justice Colm Mac Eochaidh said the court’s job was to determine the intent of the European directive and of the Irish legislation implementing it, and found that the words ‘and includes’ had a “plain and ordinary meaning” once the intent of the legislation was clear.

He said the prelude to the EU directive made it clear that the legislation was intended to ensure that information about the environment was “progressively disseminated” – finding that it would be “difficult to imagine a broader definition” of a public body than the one outlined in the European directive.

While the judge said he had not been assured that the meaning of the words ‘and includes’ was as expansive as the Commissioner had argued, he said the Commissioner was correct in her interpretation of the 2007 regulations.

A hearing on costs was fixed for March 30. NAMA may appeal the finding to the Supreme Court, but did not indicate today whether it intended to do so.

Afterwards, Sheridan said he was glad that the judge had “broadly agreed” with the Commissioner’s reasoning, but would wait until a full copy of the judgment was available before he could assess its impact.

“It means that, for the moment at least, we have some legal clarity on how to read the regulations,” he added, saying he did not personally anticipate that NAMA might appeal.

“Since NAMA is planned to come under a somewhat restricted FOI regime,” he said, “it would seem to me to be wasteful or NAMA to pursue a Supreme Court appeal.

“But we will wait and see on that one,” Sheridan added.

Previously: Pivotal ruling may subject Nama to information requests

About the author:

Gavan Reilly

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