SUNLIGHT is the best disinfectant,” said former US Supreme Court justice Louis Brandeis. He was right, and over the decades since he said it, countries around the world have enacted what is generally called ‘right to information’ legislation, which allows citizens to request information from their governments.
It was with this in mind that I sent a request to NAMA in February last year, seeking information from them on some of their activities.
To do this I used a little known piece of legislation called the Environmental Information Regulations (EIR). Somewhat similar to its better known relative, the Freedom of Information Act (FoI), EIR was made law in 2007 via a statutory instrument as the result of a European Directive.
FoI and EIR are two different pieces of legislation. FoI applies to general records held by bodies the Government chooses to call public. EIR applies to environmental information held by “public authorities” generally.
Critically, FoI was not open to me to ask for information as then Finance Minister Brian Lenihan chose not to bring NAMA under the FoI regime.
EIR allows citizens to request from public authorities information that is specifically environmental in nature. In some ways it is stronger than FoI, in others it is not. And one of the major differences between the two is how ‘public authorities’ are defined.
Under FoI the minister chooses which bodies are public authorities, and by omission, which are not. But under EIR a public authority is broadly defined, as it has its origins in a European eirective, and earlier even, through what is called the Aarhus Convention.
Without getting into the legal complexities, myself and a willing volunteer who joined me, Fred Logue, took the view that NAMA was a public authority under EIR. NAMA immediately disagreed, claiming among other things that it was solely a commercial operation, and that it did not carry out ‘public administrative functions’.
The case was then ultimately appealed to the Commissioner for Environmental Information, who in this case is Emily O’Reilly. After a series of lengthy legal submissions the case hinged on how the word ‘includes’ is interpreted in law, and to cut a long story short, the commissioner eventually agreed with us that ‘includes’ means what you think it means, and should not be read as ‘may include’.
But what does all of this mean, in practice?
It opens the door to citizens requesting environmental information from NAMA, and having recourse to the commissioner should their request be refused.
The definition of environmental information in the law is quite broad, and because EIR is a relatively untested piece of legislation, what is or is not environmental information has yet to be clearly defined. It could include things like planning permissions sought, anything that affects the state of the environment, proposals for development, emissions information, among many others.
But there is a larger issue here. Why did we have to go down this lengthy legal road through a little known piece of environmental legislation?
Why was NAMA not included in the main FoI regime when the agency was established by the late Brian Lenihan in 2009?
At the time he claimed it was due to commercial sensitivity concerns, which is — to anyone who is familiar with the FoI Act — patent nonsense.
Both the FoI Act and EIR, have exemptions that allows public bodies to refuse to release information on the basis of ‘commercial sensitivity’. And this exemption is often used by bodies such as the Department of Finance. There is simply no good reason not to include NAMA, as well as other bodies, under the FoI regime.
And another question arises: why are request for environmental information free, while requests under FoI cost €15? Why are internal appeals under EIR free, and under FoI they are €75?
People may remember that back in 2003 the Fianna Fáil-led government effectively filleted the FoI Act by introducing fees under the entirely bogus pretence that requests were costing too much to answer. It’s bogus because it is the public who pays for records to be created in the first place, for records to be stored, for records to be searched. The public pays at every stage, and is then asked to pay to access information they already own.
It is within the power of the Government to remove fees on FoI requests today and I would call on Public Expenditure Minister Brendan Howlin to do so. The much talked about amendment to the FoI Act promised by the new government is not necessary to remove fees. The fees can be removed immediately by ministerial order. It is also within the power of the Government to bring many more organisations into the FoI regime — including NAMA itself, the Central Bank, the VECs, An Garda Síochána (and not just for administrative functions) the Garda Ombudsman Commission, the National Treasury Management Agency, the Judicial Appointments Advisory Board, the Refugee Applications Commissioner, the Office of the Refugee Appeals Tribunal, the Residential Institutions Redress Board and the Central Applications Office. Right now, none of these bodies are open to public scrutiny via FoI.
And we must go even further. The situation must be changed so that all information and data held by public authorities, in all aspects, is by default public and accessible. While some information should be withheld, this should be the exception rather than the rule, and there must be very good reasons for doing so. The public has a right to know how public bodies operate, how and why they spend public monies and on what they spend it.
Access to information is a human right. If we wish to live in a vibrant and open democracy, citizens must have information to hand upon which they can base their decisions and through which they scrutinise the Government.
As a country, Ireland was destroyed by opacity, secrecy, dealings behind closed doors, a lack of oversight and a lack of public scrutiny. By letting the sunlight in, we can empower citizens and reboot this Republic.