Mr Justice Donal O’Donnell said Nama was established under statute which affords it substantial powers, of compulsory acquisition; of enforcement; to apply to the High Court to appoint receivers; and to set aside dispositions. Established in response to an unprecedented financial crisis, Nama’s scope and scale was “exceptional” and, if it were not, it would be unable to carry out the important public functions assigned to it, he added.
The judgment was given in a dispute about Nama’s status which arose after a journalist, Gavin Sheridan, sought information in 2010 from Nama under a freedom of information instrument known as an Environmental Information Regulations (EIR). When Nama refused, Mr Sheridan referred the matter to the commissioner, Emily O’Reilly, who ruled in September 2011 that Nama should be subject to information requests under EIR as it was a public authority under the 2007 European (Access to Information on the Environment) Regulations.
After Nama lost its High Court appeal of that decision, it brought an appeal to the Supreme Court which yesterday dismissed the appeal but on different reasoning from that of the commissioner and High Court.
Mr Justice O’Donnell said a 2003 EC Directive on public access to environmental information was adopted in pursuit of the EU’s obligations under the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, an agreement under the UN.
The 2003 Directive was implemented in Irish law by the European Communities (Access to Information on the Environment) Regulations 2007 and those regulations set out a definition of public authority.
The judge found the reasoning adopted by the commissioner on whether Nama is a public authority contained was flawed. An agreement between both parties to the litigation concerning the scope of argument in the High Court may also have led that court to use an “ultimately unhelpful” shortcut, he said. It was “undesirable” to resolve this case on the basis that a presumption of faithful transposition by Ireland of the 2003 directive has not been rebutted, he found.
Judge O’Donnell said the meaning in the directive was unclear but a recent
European Court of Justice decision said, referring to public authorities, the authors of the Aarhus Convention intended to refer to administrative authorities since, at state level, it is those authorities which are usually required to hold environmental information in the course of their functions.
Applying the interpretation of the directive as set out by the ECJ (in the Fish Legal case involving water companies in the UK), the judge ruled, it is clear Nama is a public authority with public administrative functions, and dismissed its appeal.