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Oifig an Choimisineara
FaisneiseOffice of
the Information
Commissioner
Background
In a request made to the National Assets Management Agency (NAMA), dated 3 February2010, the appellant sought access under the Access to Information on the Environment (AIR)Regulations 2007 to the following records:1. "A breakdown
of
all assets, loans and properties due to be transferred to the Agency. Thisshould include the value placed on the asset and by whom. It should include theaddresses
of
all assets and properties.2. A breakdown
of
all properties and property loans currently owned or controlled by theAgency.3. Minutes of board meetings relating to the transfer
of
assets and properties to the Agency.The date range
for
this request is January 2009 to January 2010, inclusive."The request was refused by NAMA on the basis that it was not a "public authority" within themeaning of the AIE Regulations. On 19 March 2010, the appellant appealed to theCommissioner
for
Environmental Information against NAMA's decision.
The Definition of "Public Authority"
Article 3(1) of the AIE Regulations state that "'public authority' means, subject to sub-article(2)-(a) government or other public administration, including public advisory bodies, atnational, regional or local level,(b) any natural or legal person performing public administrative functions under nationallaw, including specific duties, activities or services in relation to the environment, and(c) any natural or legal person having public responsibilities or functions, or providingpublic services, relating to the environment under the control
of a
body or person fallingwithin paragraph (a ) or
(b
),
and includes-(i) a Minister of the Government,(ii) the Commissioners
of
Public Works in Ireland,(iii) a local authority
for
the purposes of the Local Government Act
2001
(No. 37 of2001),(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9
of
1946),
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Atha
Cliath 2. I
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(v) the Health Service Executive established under the Health Act 2004 (No. 42
of
2004),(vi) a board or other body (but not including a company under the Companies Acts)established by or under statute,(vii) a company under the Companies Acts, in which all the shares arc held-(I) by or on
behalf of a
Minister of the Government,(II) by directors appointed by a Minister of the Government,(III) by a board or other body within the meaning
of
paragraph (vi), or(IV) by a company to which subparagraphs (i) or (II) applies, having publicadministrative functions and responsibilities, and possessing environmentalinformation".Article 3(2) states: "Notwithstanding anything in sub-article (I), 'public authority' does notinclude any body when acting in
a
judicial or legislative capacity."
The Appellant's Position
Initially, the appellant noted that the NAMA Board consists
of
nine members, all
of
whom areappointed by the Minister for Finance. He stressed that the
Chief
Executives of NAMA andthe National Treasury Management Agency (NTMA), both of whom are
ex-officio
members,are appointed by the Minister. He contended that, on this basis alone, NAMA should beconsidered to be a "public body", and he referred in particular to paragraph (a) andsubparagraph (vi) of the definition
of
"public authority".Subsequently, in a submission made on 22 April 2010, the appellant refers to Decision NoticeFER0265609 (dated 17 December 2009) in which the UK Information Commissioner's Officc(ICO) found that PhonepayPlus, a consumer protection body responsible
for
regulating'Controlled Premium Rale Services' in the UK, was a public authority
for
purposes
of the
UKEnvironmental Information Regulations (EIR). After summarising the ICO's decision, theappellant states: "While NAMA may or may not fall within under the administrative element
of the
EIR, it is important to point to the scope
of
bodies considered to be public in otherjurisdictions, under the administrative element." The appellant also quotes from a letter byEurostat, dated 16 October 2009, to the Central Statistics
Office
as follows: '"NAMA ispublicly owned and has as its purpose to conduct specific government policy . . . according tothe decision of 15 July 2009 ... it is to be classified within the general government sector.'"In addition, referring to another decision of the ICO involving information relating to housingdevelopments, the appellant suggests that "property information could potentially beenvironmental in nature".
NAMA's Position
For its part, NAMA acknowledges, in a submission dated 7 May 2010, that it is a bodyestablished by statute, namely, the National Asset Management Agency Act 2009 (the Act).However, according to NAMA, it does not automatically follow that NAMA is a "public
2
authority"
for
the purposes
of the
AIE Regulations. Referring to its purposes and functions asset out in the 2009 Act, NAMA states: "NAMA is not a public administration body or apublic advisory nor does it perform public administrative functions including specific duties,activities or services in relation to the environment." NAMA further states:'"None of the purposes or functions conferred on NAMAin order to achieve the Act's purposes can properly becharacterised as either public administration or publicadvisory and specifically none
of
its functions relate tothe environment.While NAMA was established by statute and assignedits statutory functions in order to further the publicpolicy objectives of the Act, NAMA does not administerthe Act's policy, it does not provide services infurtherance
of
that policy and specifically it does notcarry out duties, activities or services relating to theenvironment."Moreover, NAMA maintains that, in order to achieve its statutory purposes: "NAMA mustmanage its acquired assets with a commercial mandate which is not administrative in nature.Ultimately, NAMA's aim is to achieve the best achievable financial return
for
the State andthis is not an aim that is achievable if NAMA's functions were administrative or advisory innature." Alternatively, NAMA argues that the appellant's request does not relate to"environmental information" within the meaning of the AIE Regulations.
AnalysisGeneral Description
of
NAMA
NAMA, as its full name indicates, is an asset management agency of the State. It wasestablished by the National Asset Management Act 2009, the stated objectives
of
which are,as set out in section 2 and summarised by NAMA in its submission:(a) to address the serious threat to the economy and the stability
of
credit institutions in theState generally and the need
for
the maintenance and stabilisation of the financial system inthe State, and(b) to address the compelling need to facilitate the availability
of
credit in the economy, toresolve the problems created by the financial crisis, to protect the State's interests in respect ofthe guarantees issued to certain credit institutions, to facilitate restructuring
of
creditinstitutions
of
systemic importance to the economy and to remove uncertainty about thevaluation
of
certain assets
of
systemically important credit institutions.Under section 10(1) of the Act, NAMA's purpose is to contribute to the achievement of thegeneral purposes stated above by:(a) acquiring eligible bank assets from participating institutions(b) dealing expeditiously with acquired assets
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