In its appeal, Nama is asking the Supreme Court to rewrite the relevant legislation in a way that would make it “much more difficult” for members of the public to use a European Directive governing access to environmental information, argued Niamh Hyland, for Commissioner for Environmental Information Emily O’Reilly.
Brian Murray, for Nama, said the issue was whether every statutory corporation and company in which shares are owned by a minister, including financial institutions, falls, for that reason alone, within the definition of “public authority”. That could not be the case and the commissioner’s interpretation was wrong, he argued.
Nama is appealing a High Court ruling upholding a September 2011 finding by the commissioner that Nama is a “public authority” as outlined in the European Communities (Access to Information on the Environment) Regulations 2007, with the effect it is subject to Freedom of Environmental Information requests.
The five-judge Supreme Court yesterday heard final arguments on a key issue in the case, the status of Nama, and reserved judgment to a later date.
Ms O’Reilly issued her ruling after a journalist, Gavin Sheridan, sought information on Nama under Environmental Information Regulations.
Nama refused to supply the information on grounds including it is not a public authority within the meaning of the 2007 regulations. The commissioner found the agency was not justified in its refusal after finding Nama was a public authority within the meaning of Art-icle 3.1 of the regulations.
Article 3.1 states that “public authority means” government and various other bodies “and includes... a board or other body... established by or under statute”.
In its appeal, Nama says the commissioner failed to apply proper principles of statutory interpretation when considering what is a public authority.
A core issue to be decided is the meaning of the words “and includes” in Article 3.1. Nama says it should be interpreted as “may include” with the effect it does not have to provide the information sought by Mr Sheridan.
Earlier, Ms Hyland argued that the court should apply the same “expansive” interpretation to the meaning of the words “and includes” as the commissioner had. She also argued there was no need to refer issues to the European Court of Justice relating to whether Nama is a public body within the meaning of the European directive which the 2007 regulations were introduced to implement.
The Supreme Court was being asked to settle an issue of national law, the meaning of the words “and includes” in Section 3.1, she said. The 2007 regulations made clear Nama falls within the bodies covered by the regulations and no alternative interpretation was available, she argued.
Nama’s interpretation of the regulations breached the principles of the directive, intended to ensure access for all, she added.
Mr Murray argued that if the commissioner was correct in her interpretation, the words “and includes” would be unnecessary and otiose. An expansive interpretation to the meaning of the words “and includes” was wrong as it’s based on the view that the word “includes” is “always a word of expansion”.