Supreme Court reserves judgment in Nama appeal

The Supreme Court has reserved judgment on a key issue in an appeal by the National Asset Management Agency against a decision it is a public body subject to public access requests for environmental information.

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, Niamh Hyland SC, for Commissioner for Environmental Information, Emily O’Reilly, argued. “That should weigh heavily with the court.”

Brian Murray SC, for Nama, said the issue for decision was whether every statutory corporation and every company in which shares are owned by a minister, including financial institutions, falls, for that reason alone, within the definiton 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 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 today heard final arguments on a key issue in the case, the status of Nama, and reserved judgment to a later date. Its decision on that matter could determine the full appeal.

The commissioner issued her ruling after a journalist, Gavin Sheridan, sought information on Nama under a freedom to environmental information statutory instrument, the Environmental Information Regulations (EIR).

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 Article 3.1 of the 2007 regulations.

Article 3.1 states: “..public authority means..” government and various other bodies “and includes..(vi) a board or other body...established by or under statute”.

In its appeal, Nama argues the commissioner failed to apply proper principles of statutory interpretation when considering what is a public authority under the 2007 regulations.

A core issue to be decided is the meaning of the words “and includes” in Article 3.1. Nama contends they 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 the court should apply the same “expansive” interpretation to the meaning of the words “and includes” as the commissioner had. Counsel 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 interepretation of the regulations also breached the principles of the directive which was intended to ensure access for all, she added.

In reply, Mr Murray argued, if the commmissioner was correct in her interpretation, the words “and includes” would be unnecessary and otiose. An expansive interpretation to the meaning of the words “and incoludes” was wrong as it was based on the view the word “includes” is “always a word of expansion”.