THE SUPREME COURT 159/2013 Denham C.J. Murray J. Hardiman J. O?Donnell J. Dunne J. Between/ National Asset Manageme?fAg?ncy I Appellant it? and - Information Respondent delivered on the of June, 2015. 1. This is a long drawn out and contentious dispute conducted between two public bodies at public expense, which is one further illustration of the truth that some disputes are so bitter because the stakes are so low. The increased public availability of information held by official bodies in relation to the environment is part of the international trend towards both greater sensitivity to, and protection of, the environment and greater disclosure of information, transparency if you will, in relation to public bodies. In Ireland, this development can be traced to international roots, and in some cases to speci?c provisions of European law. It is important therefore, in seeking to understand the provisions of Irish law, to set the-Iii in their European and international context. 2. A useful starting point is Council Directive 7th of June 1990 on the freedom of access to information on the (?Directive This DireCtive provided that member ensure, subject to limitations and exceptions contained within that ?public authorities? were required to make available \ii?lating to the environment to any natural or legal person at his request," he or she having to prove any speci?c interest. ?Public authoritiesii?awere some logic, as authorities having responsibilities possessing in relation to the environment. Thus the definition contained at of the_._Directive provided as follows: ??public any public administration at national, regional or local level s?pifisibilities, and possessing information, relating to the of bodies acting in a judicial or legislative While of ?public administration? and ?responsibilities. . .1'elating to the environment?might require some elaboration, this provision was relatively clear, and in particular established that for an entity to be subject to the provisions of the Directive it must satisfy at least two criteria: (1) it must be a public authority; and (2) it must have responsibilities relating to the environment. 3. The next step in this chronology was the adoption of the Aarhus Convention on the 25?1 of June 1998 (Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters) (?the Convention? or ?the Aarhus Convention?) which was an international agreement under the auspices of the United Nations to which both Ireland and the European Union are parties. While the Convention sought to pursue the same aims and had the same focus as Directive it had a different drafting history, since it was the product of an international consensus extending well beyond Europe. 111 respect of access to information it adopted a very similar structure to the Directive in imposing a requirement of disclosure of information on public authorities. However, it deliberately de?ned public authority more broadly than the Directive. Thus Article 2.2 of the Convention provided:? ??Public authority? means: Government at national, regional and other level; Natural or legal persons performing public adrifiinistrativelfunctions under national law, including speci?c duties, "activitie'sor services in relation to the environment; Any other natural or legal person's-i responsibilities or functions, or providing public inri?lation to the enviromnent, under the control of a body or person within subparagraphs or above;? 4. When the above is placed alongside that contained in Directive obvious that a broader approach was taken in the Aarhus is only in subparagraph (0) (a natural or legal person under th oi'iperson falling within subparagraph or that it is regui'iied'" hat entity functions or provides services in relation to the case of entities coming within subparagraph or that not apply. The concept of ?[g]overmnent at national, regional and other level?l?laddressed in subparagraph is reasonably clear, although there may perhaps be some debate at the margins as to what is captured by that definition. More dif?culty however is created by subparagraph particularly when regard is had to the fact that the Convention is meant to apply in, and relate to, the legal systems of very many contracting states with different legal systems. In one sense the last portion of the de?nition (?including speci?c duties, activities or services in relation to the environment?) might be thought to be superfluous since it does not limit or otherwise de?ne or indeed describe the type of entity captured by the de?nition. The concept can perhaps be understood as meaning ?including but not limited to? such speci?c duties, activities etc. Once that is understood, subparagraph can be read as applying to ?natural or legal persons performing public administrative functions under national law? which directs attention to the key concept of ?public administrative functions? and in particular the qualifying adjective ?administrative? which is not otherwise de?ned in the Convention. 5. In pursuance of its obligations under the Convention, the European Community (as it then was) repealed Directive and replaced Directive of the European Parliament and of the Council of 28' 2003 on public access to environmental information and (?Directive and which became part riskier the provisions of the Convention became part of Irish law, fcdurse Ireland had a self-standing obligation under international law to'i'iidi'thisiibnre such provision. Recital 11 of the Directive records that it is ?To take account of the principle in Treaty, that environmental protection requirements should be the de?nition and implementation of Cornmunityipolicies 'iactivities, the de?nition of public authorities should be so as encompass government or other public administration at orlocal level whether or not they have speci?c The de?nition should likewise be expanded to or bodies performing public administrative function ti??Z-tb the environment under national law, as well as other persons? under their control and having public responsibilities relation to the environment.? It should be noted in passing that Recital 24 provides that. member states could maintain or introduce measures providing for broader access to information than required by Directive 6. The de?nition of ?public authority? is contained in Article 2.2 of Directive as follows: ??Public authority? shall mean: government or other public administration, including public advisory bodies, at national, regional or local level; any natural or legal person performing public administrative functions under national law, including speci?c duties, activities or services in relation to the environment; and any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within or With the exception of the words ?including public advisory other purely grammatical and syntactical changes, this is functionally provisions contained in the Aarhus Convention. Of particular is that is in effectively identical tel-ins 2.2 of the Convention. 7. Directive was implemented Irish by Regulations contained in a statutory instrument, 8.1. No. Communities (Access to Information on the (?the Regulations? or ?the 2007 Regulations?). In this case of the Regulations contains the relevant definition of ?public ??public authori?iiy? to sub-article other public administration, including public advisory regional or local level, i or legal person performing public administrative functions national law, including speci?c duties, activities or services in i relation to the environment, and any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph or and includes- a Minister of the Government, (ii) the Commissioners of Public Works in Ireland, 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), 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, I (vii) a company under the Companies Acts, in which all are held- I by or on behalf of a Minister of the (II) by directors appointed by a Minister of the I by a board or other body within the of paragraph (IV) by a company to which (I) (11) applies, having public administrative functions aidiraresp?hsibilities, and possessing environmental added) It will be noted that the definitionE Isl-ii'bparagiiaph and of Article 3 reproduces word for word of Directive (and therefore effectively the have proved problematical in this case are the additional provisions (i)th (vii) and the further subparagraphs to 8. to pause here and make some observations on both the ms, of the implementation of Directive into Irish law. If this Directivehad been implemented by primary legislation, then some dif?culty in interpretation might be lessened since even if the provisions of Irish law were interpreted as more extensive than required by the Directive, that would not pose any problem as the Directive already contemplates and permits the possibility that member states could adopt more extensive provisions. However, this Directive is implemented by statutory instrument pursuant to the provisions of the European Communities Act 1972. It is the making of law by a body other than the Oireachtas (in this case the Minister) but is protected from constitutional challenge because it bene?ts from the terms of the Constitution adopted on accession to what was then the European Economic Communities under what was then Article 29.4.3 (subsequently renumbered) which provided that no provision of the Constitution would invalidate any laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the European Communities or European Union as the case may be. This exemption however only extends to provisions ?necessitated by the obligations of membership? and thus in this context permits the making of law by statutory instrument insofar as it faithfully implements a Directive pursuant to the obligations on Ireland as a member state to do so. If however a statutory: instrument goes further than the implementation of the directive necessitates, it wouldiitgiihai extent be unconstitutional, since it would be the making of law the Oireachtas, and not protected by the provisions of Article a speci?c importance in Irish law in understanding the extent of directive, where implemented by secondary legislation. In benefits therefore of democratic oversight that legislation would entail, that route would also avoid some of the.difficultiesibf interpretation which arose in this case. i 9. There is a further as to the manner chosen for the implementation of the from the legal vehicle adopted. In principle, it might be two Bioad options open to a member state like Ireland in the dif?ctives which are not considered to all already be covered by t11e__:' law. A state can simply adopt into national law the language directive in effect placing the national emblem on what is language. Alternatively, if confident as to the reach, scope and of the directive, it may adopt and use its own language to implement it? national law. That route has the benefit that the European norm to take effect in national law is in effect translated into the language and concepts of the national legal system, and may therefore be more readily understood and applied. Either route therefore has attractions. Here it will be apparent, that the approach has been a mix of the two. Superficially that might appear to be an unobj actionable belt and braces approach. But as this case illustrates, it gives rise to real problems of interpretation. Subparagraph to reproduces the terms of Directive (and therefore the Convention) with no material change. Subparagraphs to (vi) are therefore clearly matters of national law but cannot, or at least should not, materially extend (01' indeed reduce) the scope of the provision. The problem of interpretation posed in this case calls to mind the observations of the Caliph of Baghdad on the burning of the library of Alexandria quoted by Lord Hoffman in the United Kingdom House of Lords in Kirin-Amgen Inc v. Hoechsf Marion Roussei [2005] R.P.C. 169: if it contained nothing that was not in the Koran it was super?uous, and if it contained something different it was dangerous. In the same way it can be said that if subparagraphs to (vi) say something different to subparagraphs to then they are possibly dangerous and certainly dif?cult. Interpretation 10. While it will be necessary to address the speci?c questionsriofiinterpretation arising here in some detail, it is necessary to make some geneiial observations at this stage on the approach to interpretation of a statutory in to Irish law pursuant to the State?s obligations to law the provisions of a directive of the EU which itself was adopted in with an obligation undertaken by the EU (and Ireland) under an. agreement. It does not seem to me to be possible, and if possible, be correct, to approach the question of interpretation the prism of national law, and the sometimes elaborate approach to Irish law in particular. There are rules for the interpretation39ij introduced implementing an international treaty. In particular, Hob-ligation undertaken by Ireland as a member of the EU requires the interpretation of legislation in implementing a directive so" teleologically, in order to achieve the purpose of the h?i?ihore, the language used in this statutory instrument, and in ?ppiaragraphs to is derived directly from Directive addressed states and intended to take effect in different national legal systems. That language is in turn derived from an international treaty negotiated between and agreed upon by a large number of international states with different legal systems. ll. In this particular context, it is important to bear in mind that the concepts of administrative law and public law can differ substantially between countries, and in particular between common law systems and civil law systems. It does not appear possible, or indeed lawful, therefore to address the meaning of this statutory instrument in isolation from that context. In particular, even the provisions of subparagraphs to while clearly terms introduced by the Irish legislator, must nevertheless be understood as implementing the provisions of Directive (and indirectly the Convention) and for the reasons touched on above, ought not to go further (but not fall short of) the terms of that Directive. If even as a matter of purely domestic interpretation, the provisions of those subparagraphs might appear to either fall short of what is required by the Directive, or go further, an Irish court might be required to adopt another interpretation which is consistent with the provisions of the Directive, if that is possible. Accordingly, in order to understand what instrument means and does in this case, it is necessary, perhaps first, to exactly what the Directive does and means, which in this case also interpreting the provisions of the Convention. I propose therefore-lid outline the essential facts of this case before addressing the which has arisen. 12. Few people in Ireland can existence of the National Asset Management Agency under the National Management Agency Act 2009 on the as part of this country?s response to the ?nancial crisis simple terms its function involves the acquisition of bank institutions and holding, managing and realism the Val asISets. It must manage its acquired assets with a commercialhmandate aim is to obtain the best achievable financial return for the State; of relate directly to the environment. Given the scale of the market in Ireland, and the consequent impact on bank lending liquidity aiidviability, NAMA became the holder of very substantial property assets in Ireland and elsewhere, and, depending also on the terms and exercise of the lending agreements, the owner of substantial assets. There is no doubt that NAMA is a major in?uence in commercial affairs in Ireland and therefore the Irish economy, and is created by, and is a creature of, public law. It would not normally be thought of as a body possessing environmental information or operating in the environmental ?eld. Nor would its functions be considered administrative in nature in the sense of pertaining to the executive or governmental power. On the other hand, it is a major vehicle deployed as part of the executive and legislative response to the recent ?nancial crisis. The Request 13. On the 3rd of February 2010 a Mr Gavin Sheridan sent an email to NAMA requesting access to environmental information under the 2007 Regulations. The records he sought were as follows: A breakdown of all assets, loans and properties due to be transferred to the agency. This should include the value placed on the asset and by whom. It should include the addresses of all assets and properties. (2) A breakdown of all properties and property loans currently controlled by the agency. I (3) Minutes of board meetings relating to the transfer assets and properties to the agency. The date is January 2009 to January 2010 14. It is not perhaps surprising that NAMA:rteacted-defensively to such a broad request, which was only justi?ed byreferenc;e__ bare terms of the Regulations. As we have seen, Directive 2003/4{? aid the Regulations, do not require that the requestor demonstrate any -_i__rr..the information. However, it was not explained why this even in general terms, or why it was thought to come de?nition of environment information. Without an issue which has not yet been determined by the the information sought is at some remove from the coming} of information relating to the environment, is very extensive, and gni?cant commercial importance to NAMA, particularly at the rather fraught time when the information was requested. Article 4 of Directive permits the refusal of environmental information when the request is manifestly unreasonable or formulated in too general a manner taking in to account Article In retrospect, it is perhaps unfortunate that these issues were not addressed at the outset, since that might have avoided the necessity to engage in the dispute which has occupied so much time since the making of the request. Instead however, a dispute ensued over the meaning of public authority in respect of a request which was in the event, subject to drastic and fundamental revision. 10 15. NAMA responded to the request on the 16111 of February 2010 in a short email refusing to accede to the request on the grounds that it did not consider it was a ?public authority? within the de?nition set out in the Regulations. Mr Sheridan challenged that assertion and on the 19th of March 2010 NAMA repeated its position. Thereafter, on the 19th of March 2010, Mr Sheridan initiated an appeal to the Of?ce of the Commissioner for Environmental Information (?the Of?ce of the Commissioner?), and followed it up with an additional submission of the 27?? of April 2010. NAMA for its part sought to justify its decision by a detailed letter-"of the 7111 of May 2010, setting out the powers of NAMA and maintaining that it was authority? because it was not engaged in a function of administration, and contended further and in any event, that the information was not environmentalinformation. 16. On the 29th of June 2010 an investigator in the Commissioner for Environmental Information set. out her was furnished to the parties. It is perhaps necessary to say at this.poiniitliiat th?ibf?ce of the Commissioner does not engage in a submissions unless that is expressly agreed to by the parties, or other party might. learn of the substance of the party in the context of a preliminary or ?nal deterniinatibiif position taken by Mr Sheridan was in essence that NAMA should be public body and he relied in particular on subparagraph (vi) of and the de?nition of public authority while conceding may-not fall under the administrative element of the He it came within the clear words of subparagraph (vi) of the Regulations?it, a ?board or other body. . .established by or under statute?. maintained that while it could not deny that it was such a board or body established pursuant to statute, it did not automatically follow from this that it was a public authority within the meaning of Directive and Regulations. In essence it maintained that only such boards and bodies as also satis?ed the test that Article of the Regulations outlined, i.e. one ?performing public administrative functions?, came within the Regulations. 17. The investigator considered that the question presented was whether notwithstanding its commercial mandate, NAMA performed ?public administrative ll functions? within the meaning of Article She referred to the implementation guide to the Aarhus Convention (The Aarhus Convention: An Implementation Guide). That guide described a ?public administrative function? as ?a function normally performed by governmental authorities, as determined according to national law? 35). This suggests that the function performed should be governmental in nature. Ultimately the investigator concluded as follows: conclude that public administrative functions are activities connected with the exercise of public or sovereign powers, i.e. activities which are typically governmental in nature. The activities which ?by their nature, tlleir?aim and the rules to which they are subject, are connected with the exercise powers which are typically those of public authority?. Such funotionsigenerally involve the exercise of supervision and control, with the being regulatory functions. Public and administrativefungi-ens distinct from activities which are economic or even if the economic or commercial activities are a public sector body on a statutory basis and in the public interest-1: this interpretation is also consistent with the Aarhus guidef? -- The language quoted by the was-drawn from a decision of the House of Lords of the United Council offhe Parish ofAsfon Camiow and v. Wallbank Anor [2003] 18. structure o_f-tlie analytical approach taken by the investigator at this stage seems-19- Correct. She concluded that it was not sufficient merely to look of subparagraph (vi) of the Regulations alone, and that it was necessary toil-consider whether the entity also satis?ed the provisions of subparagraph of the Regulations which were the only applicable provisions in this case. In that regard, for reasons which I have already touched on and will address later, I consider that she was correct. Whether however she was correct in the interpretation adopted of ?public administrative functions? was more debatable. That was ultimately a matter of European law, and might have been resolved shortly at that point, or thereafter, by a reference to the European Court of Justice However, at this point, rather than address this issue which I consider to be central to this case, the matter took the 12 ?rst of a number of surprising turns, which rendered the dispute both more complex and more entrenched. 19. In the normal sequence of events, the next step would be for the Commissioner for Environmental Information (?the Commissioner?) to issue her decision. It is not normal for the Of?ce of the Commissioner to engage in a further round of submissions, but that was the course which was followed here. The original investigator was due to take leave, and queries were therefore to be directed to the senior investigator. The preliminary decision of the investigator was subject of a very detailed and comprehensive submission by Mr Sheridan. He the guidance notes issued by the Minister for Environment Heritage and (Guidance for Public Authorities and Others on Implementation May 2013) which referred to the de?nition of public authorities ?As indicated at paragraph 3.2 above, ?public broadly de?ned to comprehend all such bodies that have functions and that hold environmental information. The it clear that certain public bodies such as Government and local authorities fall within the scope of the de?nition. makes it clear that bodies established by statute certain companies established under the Companies Act are by the definition. Broadly, it is intended to cover bodies that-are public bodies and would include 11011- commercial bodies that perform public and that hold environmental information.? (para. 5.3) 20. "d it clear that he was asserting that NAMA was subject to the it was a board or other body established under statute. At paragraph the submission he contended: ?As already submitted NAMA falls unambiguously within the meaning of Article Given that the legislature saw ?t to provide a non exhaustive list of the types of entity to which the regulations apply, the Commissioner must ?nd that NAMA is a public authority and it should not be necessary to carry out an analysis of the functions of NAMA under Article 13 For good measure however, Mr Sheridan went on to provide detailed reasons why he considered that NAMA was a public authority under that Article. 21. On the 16th of August 2010, the senior investigator to whom the matter was temporarily assigned wrote to NAMA stating that the views expressed by the investigator in her preliminary decision ?may be accepted or rejected by the Commissioner?. Important legal issues were still under consideration. She continued: ?For instance I am aware that some commentators hold the view that-the issue is relatively straight forward because they read Article 3(1) of the regulations as stating that the definition of public authority mm (vi) oijfoiiher body established by or under statute.? She included Mr Sheridan?s response to the report, and invited further submissions from NAMA. It shouid at stage that since the provisions of subparagraph (vi) of the Regtllat_i_011?i?i? of purely Irish origin, any commentary that held the view that the forward must likely have been of Irish origin. However,_,__t_he gator did not identify any such commentary, and none was subsequently identi?ed in the extensive correspondence that follow, or indeed in the these proceedings. The status and expertise of any commentator as given for any interpretation may be'relevant to the weight to be given celiinieiltai?y. 22. in some detail maintaining its position. Mr Sheridan was in turn further replying submission. Again he emphasised the terms of and contended: ?As Hal-matter of plain English and logic, the body falls within one of the categories (vii) . It is a public authority because it is included in the de?nition. The applicant is at a loss to understand how this article may be interpreted in any other way.? There followed a hiatus in the correspondence, which was subsequently explained by the Commissioner, as occasioned by a desire to await the outcome of the Deilway Investments 0315? v. and 0119 case, which was heard and determined by the 14 Divisional Court of the High Court ([2010] IEHC 364), and subsequently this Court on appeal ([2011] 14), and which involved a consideration of the terms and operation of the National Asset Management Agency Act of 2009. A further ruling was then issued on the 27th of May 2011. Shortly before that, on the 19th of May 2011, Mr Sheridan wrote to the investigator (who was now back from leave of absence) further to a conversation which he had had with her. In the later ruling by the Commissioner, it stated that this conversation was initiated by the investigator who ?suggested the narrowing of the request?. Mr Sheridan identi?ed his original request (set out above) and stated that he wished to narrow this requestiiriithe following way: i ?Parts 1 and 3 can be disregarded entirely. Part 2 can be narrowedasufdllo?ws: breakdown of all properties and property loansi?urrentlyowned or controlled by the agency. This should be tdiithe Lei-itrim Local Authority area covered by Leitrim CoutityiiCoun?il. It should also include information related to non properties, or loans secured on non residential properties-.jo 23. This was a very dramatic tligiioi'iginal request. But this version did not remain in place for 3011.6 later, Mr Sheridan wrote again, wishing to ?further of his request to ?any and all environmental impact assessments agency-in relation to all properties and property loans currently owned-ibr by. the agency.? If the email of the 19th of May 2011 had 111% request to property loans in the Leitrim area, it is hard to see be described as a further narrowing of the scope of his took issue with this and whether it could be said to be a the original request rather than an entirely new request. Since that matter may remain to be decided, I do not wish to express any view upon this issue. However, this episode was addressed in?the Commissioner?s determination of the 30?11 of September 2011 where it was described as an effort made by the investigator ?in the context of an attempt to bring the parties to the appeal together with a view to settling the matter whether in full or in part by agreement?. The Commissioner expressed the view that she was entitled to proceed with the determination since ?it would be unconscionable that an appellant acting in good faith in the context of seeking to settle his case, would when settlement efforts fail, be deprived of his right 15 to an adjudication by the appeals authority?. I very much doubt that the unilateral correspondence entered into by the Commissioner with the requestor, which is not the subject of any parallel initiative with the requested entity, could be properly described as an effort to settle the case, particularly since it left standing the signi?cant issue over which the parties were in such bitter dispute. One sided communications with the requester coupled as it happened with a change of stance on the outcome of the request, could give rise to a suspicion of lack of even handedness in the administration and determination of the complaint. I do not propose to say more about this however, since it was not directly an issue in these proceeding-s. ?1 of May 2011 by the original 24. The ruling issued on the 27 came to the opposite conclusion to that expressed in the preliminary View iSsued on the 29?? of June 2010. In fairness, I should say that the iliveStigatoi* was disposed to reverse her view and to conclude that NAMA was indeedE out a function of ?public administration? and therefore qualified asLafpiililig,authority under subparagraph of the Regulations, but it is say that the focus of her decision was a conclusion that NAMA fell the provision of subparagraph (vii). She restated her more sense to see subparagraphs to (vii) as subset-psi\ofiparagraphs to She remained of the view that in European case law of. the United Kingdom distinction was generally made between functions and activities which are commercial, and that if Ireland had taken an expansive approach to the public authority beyond that which was strictly required by Directiyg she held that Ireland had ?apparently chosen to take to the de?nition?. In doing so, she relied on Murdoch is Law (Brian Hunt; Tottel Publishing; 2009; edition) which stated that word incl-tide has been held to be a word of extension when used in a statutory definition: Attorney General (McGrath) Healy [1972] IR 393? 600). She referred to a de?nition of public authority in the same work which drew on the Environmental Protection Agency Act 1992. That definition included ?a body established by statute?. 975). Accordingly she concluded: regret thatl did not refer to Murdoch?s, or was not otherwise made aware of the above provision, at an earlier stage in this appeal because I consider that it settles the matter conclusively. The focus on UK and European law, while 16 interesting, was clearly misplaced. It now seems obvious to me that, in promulgating the AIE Regulations, the Minister intentionally, and logically adopted a de?nition which would be consistent with environmental protection law in Ireland. Whether he acted ultra vires in doing so is not for me to say; but I must add it seems doubtful to me in the circumstances.? It seems that this conclusion was reached by reliance solely on national law and on principles of statutory interpretation under which considerable weight was given to the supposed clear words of subparagraph 25. This second preliminary view provoked further disputes, bg_t11_._as and the process by which it emerged. In the event, on the 30th: 1, the Commissioner issued her decision. In that decision, she noted-thaia key-?element in submission was the contention that in of the Regulations she was obliged to have regard to theprdvi?ons of TIirective which the Regulations transposed into Irish law; that: ?having regard to the provisions of the; is clear that the de?nition of ?public authority? is intended to than that apparently provided for by the _.interpreting the Regulations in the context of the ?avoid where the de?nition of ?public what is envisaged in the Directive?. 26. The by observing that NAMA came within the other by or under statute. Relying on the extract from Arrardoch ?s plain bparagraph (vi) of the Regulations and was, clearly, a board 01. Lat-v already referred to, she concluded that the word ?includes?, when used statutory definition, is ordinarily a word of expansion of Irish law. She continued: ?The National Assets Management Agency has argued that allowing the word ?includes? its ordinary meaning will have the consequence, in the present context, of extending the de?nition of public authority beyond what is envisaged in the EU directive. What NAMA proposes is that the plain and ordinary meaning of the word, as used in the Regulations, be set aside in favour of a meaning which implies a restriction rather than an expansion or an 17 inclusion. It is not at all clear, that as Commissioner for Environmental Information, I can abandon the plain language of the Regulations in favour of an interpretation which is arguably more in keeping with the provisions of the Directive. This is particularly the case where the language of the Regulations, and in this particular instance, is neither obscure nor ambiguous. In any case I am not persuaded that reliance on the plain meaning of the word ?includes? as used in the de?nition of ?public authority? in the Regulations give rise to an outcome which is at odds with the Directive. In fact it is very arguable that the Directive encourages and enables member states-Itoitaken an expansive approach to what constitutes a ?public authority?. of the Directive refers expressly to an expansive intent in relationthe and Recital (24) expressly permits Member States ?to or; inn-induce measures providing from broader access to information i?eqiir?red by this directive?. Therefore I do not accept that subpai??igraph?fjga) to of the de?nition of ?public authority? in the EE?shouldbe interpreted as restrictive criteria where a member state; chosen to take an expansive approach to the de?nition-55in Accordingly the iliat came within the definition of ?public authority? in of theiRegulations and that it was not necessary in the presentcase toibgnsider whether NAMA was captured also by any of the categories in the de?nition. She accordingly annulled the decision of that it was a public authority under Article 3(I)(vi) of the Reg. of this decision, NAMA had to deal with the made on the 3rd of February 2010 although it was open to the narrow the range of information which he sought. 27. Article 13 of the Regulations permits any party to the appeal affected by the decision of the Commissioner to ?appeal to the High Court on a point of law from the decision?. It is also clear from Article 13 that it is contemplated that there may be further appeal to this Court. In due course, NAMA invoked this provision and the single ground speci?ed was that the respondent Commissioner had erred in law ?in finding that the appellant was a public authority within the meaning of the AIE regulations (?the 18 28. The original decision of the investigator of June 2010 was well reasoned and competent although it might be argued it took an unduly narrow view of the concept of administration. However it ought to have been clear that if the investigator was not going to resolve the case on the basis either that the information requested was not environmental information, or that the request was unreasonable, that the question of what was meant by a ?public authority? was a pure issue of law, and one moreover, on which there was a strong element of European law. Accordingly it would have been sensible and perhaps desirable to have sought advice on that guidance from, the Office of the Attorney General, since two state bodies involved, and if that course was not taken, to seek to have the lega_l__isst1e de?nitively as soon as possible. Instead there was considerable delay, and a different conclusion advanced by the same person, which fact that this was an issue upon which competing views were of this was ideal. But this third version advanced by the myview, particularly ?awed and unhelpful. 29. It is tempting I think to consider interpretation demands no particular legal expertise, and merely requires an understanding of language, and perhaps some common decision with its confusions, contradictions and wrong turnings, why that is not always so. 30. First a was dangerous and misleading shortcut to approach this issue the since Directive by Recital 24 recognised the states might maintain and introduce measures providing for information, subparagraph (vi) could and should be given its natural and wide meaning extending to every body established by statute. But if European law permitted such a course, Irish law does not, at least by secondary legislation, for the reasons already discussed. Accordingly, if the Commissioner?s interpretation was correct, and subparagraph (vi) was to be read as extending beyond the scope of subparagraphs to and therefore the provisions of the Directive, it would be an unconstitutional exercise of legislative authority by a body other than the Oireachtas. On established principles of interpretation, if this was so, and another interpretation was possible, that interpretation must be adopted, even if it was not the most plausible l9 or obvious one, so that the provision would be given a constitutional interpretation. Recital 24 was not therefore a plausible or safe route to a decision in this case. I confess that I ?nd this reasoning process all the more frustrating since the Commissioner did not determine de?nitively that NAMA was not within the provision of subparagraphs to Nor did she determine that those subparagraphs had a more narrow meaning than the interpretation she was applying to subparagraph and furthermore, that NAMA fell outside the narrower interpretation of subparagraphs to but within the broader interpretation of subparagraph The conclusion of the Commissioner was based therefore on an one that has not been shown to be necessary, at that. Recital 24 of Directive was in this case not a shortcut, instead it was a trap for the unwary. 31. Furthermore, the ?nding that the word ?include? operates extend the scope of the provision is in my view a dubious if applied in these particular circumstances. Murdoch ?3 Dictionary of valuable tool, but it is no substitute for the thoughtful considerationfofiithe? elaborate works on statutory interpretation. Nor is it a substitute-iier the reading and analysis of decided cases. The fact that the be read to extend the meaning of a class, does not mean it must beE in every case. Similarly, the fact that the word ?include? has been of extension, as correctly observed by the Commissioner, does not must always be so held, irrespective of context. The Commissioner decision in Attorney General (McGrafh) v. Healy [1972] LR. 393 in turn to the judgment of Davitt P. in Bolger v. It is true that Davitt P. said: section in a statute provides that a word shall ?include? it implies usually that something would be outside the ordinary meaning of the word and that it is necessary, therefore, to include it in the meaning of the word for the purpose of the statute?. 235) But that judgment continued in a passage not quoted by the Commissioner, lot must depend upon the context, and this whole de?nition section should be looked at in order to see the context in which the word ?includes? is used? 235). The earliest authority on ?includes? and which was referred to by the Commissioner, is the judgment of Lord Watson in the House of the Lords of the then United Kingdom in 20 Di/worfh (it 0125' v. Commissioner ofoamps [1899] AC. 99 (?Dill-1101111?) at pp. 105- 106. It is invoked for a general, and absolute, proposition by the author of Murdoch ?3 Dictionary ofIrish Law as follows: ?[t]he word indnde has the function of enlarging the meaning of the words or phrase with which it is associated: Dihvort}? Stamp Commissioner . . 32. ambiguous and must be read in its context: In fact, the decision in Dilwort?h makes it clear that the word ?include? is ?The word ?inelude? is very generally used in interpretation clauses._ order to enlarge the meaning of words or phrases occurring in the body of theistatute; and when it is so used these words or phrases must be construed comprehending, not only such things as they signify to natural import, but also those things which the interpretation:clause declares that they shall include. But the word ?include? is construction, which may become imperative if the context-"oi: the Act is-isuf?cient to shew that it was not merely employed for the ofi-iadding t0 the natural signi?cance of the words or may be equivalent to ?mean and include,? and in that-case'it may-afford an exhaustive explanation of the meaning which, of the Act, must invariably be attached to these words or 106) 33. is to shut in, embrace, comprise or contain and comes from the Latin For my own have thought that the ordinary meaning of ?include? root clandegfe or shut. It is thus a statement that the things included are Where the term or de?nition is very clear, it may be natural the word ?include? as somehow extending that. meaning, since otherwise it: would be super?uous. But there are many circumstances in ordinary language where the word ?include? is used for clarity, to resolve any doubt, or for emphasis. For my part I see merit in the approach of Mazza J. in the Canadian case of Allen v. Greater (1997) 145 D.L.R. (4th) 286: ??include? as de?ned in the Black?s Law Dictionary is a ?term which may, according to context, express an enlargement and have the meaning of and or in addition, or merely specify a particular thing already included within general words theretofore used? I do not however seek to make any observation of general application. It is clear to me that in the context in 21 which it is used, the word ?include? here was not used to extend the meaning of subparagraphs and but rather to illustrate the type of thing included within the core de?nition. 34. There are a number of indicators within the section which support this interpretation. First, the section does not say ?shall include? which might suggest that the provisions are only included by virtue of the statute, i.e. by enlargement. Instead the language is ?and includes? which might suggest description rather than prescription. Second, for the reasons already discussed, it does not make sense to approach the statutory instrument on the basis that it was intended to invade-?airmarea of constitutional law-making reserved for the Oireachtas. Third, had the law maker been to exercise the power referred to in Recital it liaveibeen more natural to have listed the various provisions in sequenceii?fand without the word ?include?. But perhaps the most important thing is precisely that they are intended to implement Directive is stated in the Recital to the Regulations. This is also clear from the fact (i??llitlon of ?public authority? reproduced at subparagraphs use-s1: precise language of the Directive. The Regulations must be approached: light. However, the concepts described at to are derived, Eurbpean law from concepts adopted at the level of international law. dotriestic legislation therefore, they were not chosen with a View to within the Irish legal system, or by reference to concepts here. It is in my view the most natural '{deiinitioii section therefore to see it as reproducing the international law terms, and thereafter attempting to clarify the scope of applic? within the Irish legal system, rather than somehow 35. This conclusion perhaps can be tested by comparing some of the more speci?c provisions of subparagraphs to (vii) with the provisions of subparagraphs to (0). Thus, it seems clear for example that a ?Minister of the Government? within subparagraph comes without much argument within subparagraph as being government at national level. Similarly, the Health Service Executive established under the Health Act 2004 (subparagraph would be one of the clearest examples of a legal person performing public administrative functions under national law 22 (subparagraph since it succeeded to the functions which had previously been carried out. by the Department of Health. Certainly, in neither case could it be said that the provisions of subparagraph in the case of a minister of the government and subparagraph in the case of the Health Service Executive, are terms of extension. It seems to me that similarly, subparagraphs (vii) - (IV) relating to a company performing administrative functions and responsibilities and possessing environmental information, and whose shares are held by or on behalf of the minister of the government of directors appointed by the minister of the government, is intended to ?t closely with subparagraph which includes any natural (lira-legal person having public responsibilities or functions or providing public relating to the environment under the control of a body or person falling or 36. One further point is contained within the text of and the implementing Regulations. The Directive refers legal persons performing public administrative functions under speci?c duties, activities or services in relation to the environment. It. said that the word ?include? here is being used as 3 term 0f extension. Instea-diitlis illustrative of a specific category falling within the general; Finally, it is perhaps noteworthy that in Dihvorth, a distinction is ?includes? and ?means and includes?. Here forliiulation is the latter since the statutory instrument provides subparagraphs to and ?mobiles? (Vii); Accordingly, in my view it is clear that whatever the df?inc?lifde? may mean in other statutory definitions, it was not here intended to: the meaning of the prior paragraphs. Accordingly, the the Commissioner in this regard is ?awed, and cannot be supported. 37. Given the frailties which the decision of the Commissioner exhibited, it is not surprising that NAMA sought to invoke the provisions of the regulations permitting the decision to be appealed on a point of law to the High Court. There, the case took a further turn. There, both parties agreed that the Court was not concerned with the issue of whether the appellant fell within subparagraphs to This followed, it was agreed, from the fact that the Commissioner had not ruled whether the appellant was within subparagraphs to The learned High Court Judge sought 23 supplemental submissions from the parties as to whether the High Court Judge had power to quash the decision and remit it to the Commissioner for further consideration, in particular, if the High Court Judge concluded that the Commissioner came to the right decision but for the wrong reasons. Both parties agreed that the Court had no jurisdiction to decide that NAMA was a public authority for reasons which were not canvassed before or considered by the Commissioner. They referred to Vavasom' and The Employment Equality Agency v. Northside Centrefor the Unemployed Ltd, and OPS [1995] 1 LR. 450 (?Vavasom??) where Costello J. (as he then was) observed: ?The final ground of appeal raises a point which was not argued the equality of?cer or the Labour Court and which did not forngany iofgthie grounds of appeal in the appellants? special summons. 31 it is one which can properly now be relied on. The appellaiits to the Labour Court was that discrimination contrary the Act of 1977 had occurred and it was this complaint by the equality officer and then by the court ow appellants seek to argue that even if the discrimination under occur, discrimination prohibited by s. 2(b) (which occurs when because of marital status a person.Eisitiieated favourably than another person of the same sex) took .Eclaim was never advanced at any time prior to the hearing befgre_g_njie pariof the Labour Court?s deliberations, and no part of its i the statute only permits appeals to this court on a from a determination of the Labour Court and as the Lab no determination in relation to the point now advanced, jurisdiction to entertain it.? 485) 38. It appears, that the case before the High Court proceeded on the basis therefore, that the only question was whether NAMA came within subparagraph (vi) since the Commissioner had considered that she did not have to determine whether it came within subparagraphs to (0). But in the High Court, the Commissioner?s argument was signi?cantly different to that which was the basis of the decision appealed against (although not far removed perhaps from the second determination of the investigating of?cer). This was that subparagraph to (vii) must be understood 24 as deeming provisions, i.e. that the Minister was deeming those matters and anything within these subparagraphs to be within subparagraphs to 39. The learned High Court Judge delivered a careful and comprehensive judgment on the 27'til of February 2013 ([2013] IEHC 86). infer, perhaps wrongly, that the trial judge found the restrictions imposed by the agreement by the parties as to the scope of argument, somewhat restrictive. If he did, then in my view, for reasons which I will address, he was right to do so. In the end however, he sought to deploy that argument with its consequent limitations, to arrive at the conclusion,E ithiat the decision of the Commissioner should be upheld. That reasoning, as lit, was that the proper approach to a measure implementing a directive Community (or Union) was outlined by Cooke it: for Justice, Equality and Law Reform [2009] IEHC 529, namelyilittlieiiCorlrfiinust presume, in the absence of explicit wording to the that the legislative purpose is to give full and accurate effect to the of measure and no more? (para. 27), and as the trial judge 21533?. However, he concluded that the presumption was not 1'ebiittieghe1'ei because it had not been argued that NAMA did not come within the?sde?nition authority in the Directive. Accordingly on a presumption ,faiili'ful__transposition (which had not been rebutted), it must follow, the trial judgg the bodies listed at subparagraph (vi) were public authorities within of the Directive. 40. The let; :the judge was set out in extracts from paragraphs 81?83 of his jud expanded the European definition of 'public authority' by I it would have offended section 3 of the European Communities; Act 1972 and Article 29 of the Constitution. Had it limited the de?nition, it would have breached EU Treaty obligations to transpose and give full effect to the parent directive. 82. The Minister could not lawfully deem a body or person to be a public authority unless such a body or person conformed to the de?nition of public authority in the directive. Thus the bodies or persons listed at are public authorities within the meaning of the directive, and I must so presume, 25 unless I am persuaded that such a person or body is not embraced by the de?nition of public authority in the directive. 83. This presumption of faithful transposition, as described by Cooke J. in S. T, is rebuttable. If the appellant established that NAMA did not come within the definition of public authority in the Directive that would rebut the presumption of faithful transposition. No such argument was addressed to me. Nor was that case made to the respondent at ?rst instance. For the sake of completeness I should add that at an early stage of the investigation of this matter it was suggested by an of?cer of the respondent that a public authority because of the operation of Article 3(1) a body performing public administrative functions. to the respondent contesting this proposition and this washm pursued by the respondent who con?ned her decision to timieiappliicability of Article 3(1)(vi) and thus the question of whether in any of the activities described in Article 2(2) the Directive or the Irish replication of these provisions (at 3 was not before the respondent and was not before this 41. This was an ingenious approach which sought to resolve this case within the constraints created first by of the..Commissioner which had sought to resolve the matter by expansive de?nition could be given to the provisions of andiihel'eafter by the limitations imposed upon the argument in the agreement as to the scope of the appeal. But it was in and ultimately unhelpful, shortcut leading to a complicated and result. 42. It is undesirable to resolve a case such as this on the basis of a presumption of faithful transposition which has not been rebutted. At a minimum that leaves unresolved the fundamental legal issue as to whether NAMA is in truth captured by the provisions of the Regulations as properly construed. It also renders the decision of virtually no effect as a precedent for the Commissioner and for any member of the public or institution dealing with that body. NAMA would be able to argue on a subsequent occasion that it wished to seek to rebut the presumption and address 26 argument in that regard. In any event, it also lays undue weight upon the approach taken by Cooke ., which in my view did no more than identify an appropriate starting point for analysis. Furthermore, I think counsel for NAMA, the appellant, is correct to say that it was wrong to conclude that no attempt had been made to rebut any presumption of faithful transposition. Indeed the entire thrust of the appellant?s arguments was to the effect that a narrower meaning was to be given to subparagraphs to and consequently to subparagraph It is clear that the appellant did argue before the Commissioner that NAMA did not fall within categories of subparagraphs to of Article 3(1) and the de?nition of public authority in the Regulations (and therefore the Directive), and perhaps more importantly thrust of the appellant?s arguments depended on an assertion that so. Indeed, if the Commissioner had not accepted that this argument was at i( and therefore made) it would not have been necessary to seek to on the basis that member states were entitled to adopt broader permitting greater access to environmental information than was provided in the Directive. 43. In my view, this case at all of its stagesmani'fesitsitlie dif?culty of seeking to resolve dif?cult issues by reference tg?rules: and proposed shortcuts, whether of permitted expansive implementingIip'rovisidns, a supposed meaning of the word ?include?, or a presumption transposition. Fundamentally, for the reasons addressed at the outset I consider that the Regulations themselves cannot be truly interpri?teg, I particular, meaning cannot be assigned to snbparagraph the scope and meaning of the de?nition section in prior to that in the Aarhus Convention), and which since the has the effect of defining the scope of the provisions contained in to 44. NAMA has strongly argued however, that it is not open to the Court to adopt this approach. Instead it is said that the Court may only determine whether the Commissioner was correct to adopt a meaning of ?public authority? on the assumption, or possibility, that Ireland as a member state had adopted a broader implementing measure than was strictly necessitated by the terms of the Directive. If, as NAMA contended, this was incorrect, then the case should be remitted to the Commissioner to consider the true interpretation of the scope of the Directive (and 27 therefore subparagraphs to albeit that that in itself is an issue of law which would almost inevitably give rise to a further appeal. Furthermore, the possibility of a reference to the European Court of Justice would be very likely. While not suggesting that this is by any means a desirable course, the appellant nevertheless maintained that it was required by law. 45. I do not accept that this Court, or indeed the High Court, should be, or is, constrained in this way. There is a fundamental distinction between a case such as this and Vavasour. This case would be akin to Vavasour if the C0111111iSSioii_e1' sought to argue either in this Court or in the High Court, and the Court had purpbritg'd to determine, that NAMA did not fall within the meaning of subparagraph fall within the meaning of one of the other subparagraphs, to this was not argued before the Commissioner. Here however,Ethel-appeal bro-tight by the appellant, by originating notice of motion on the 21St 2011, sought to appeal the decision of the Commissioner ?on the respondent erred in law in finding that the Appellant was a the meaning of the AIE Unlike the notice of appeal is expressed in suf?ciently broad terms to encompassethe argumgiitithat NAMA is within the meaning of subparagraph (vi) in light of subparagraph or even that NAMA is within Even if the point of law is narrowed to Whether NAMA is that it is a board or other body established by or point of law cannot be resolved (and certainly cannot be the appellant) without determining the proper scope of Article 2.2 of Directive and accordingly the meaning of tho eself same words in the Regulations. 46. The dif?culties posed for the appellant in this Court by the trial judge?s decision based on non-rebuttal of a presumption of faithful transposition ?ow in large measure from the narrow scope sought to be imposed upon the argument in that Court. But if it had been argued before the Commissioner that NAMA did not come within the provisions of the Directive, sufficient to rebut the presumption of faithful transposition, it is hard to understand how it carmot have been argued sufficiently to allow the High Court and this Court on appeal to properly determine that matter. For 28 reasons addressed at the outset of thisjudgment, I do not consider that it is possible to arrive at a lawful interpretation of the provisions of the Regulations without considering the scope of the de?nition section contained in the Directive. This issue was clearly within the notice of appeal and was part and parcel of the argument before the Commissioner. I am satis?ed that it is properly within the scope of this appeal: indeed the appellant cannot advance its appeal, and argue that there is any ambiguity in, or different interpretation to be given to, the provisions of subparagraph (vi) without invoking the terms and meaning of the Directive. In any event, it is well settled that an agreement between counsel as to the scope of argument canth constrain this Court in the interpretation it may give to a legislation of general I application. Here it cannot, and does not, prevent the Court from interpretirigthe provisions of the Regulations which at least. in principle, apply the State. 47. A further complication arose in this case b_ecaiisieiarftei' the decision of the High Court, and the ?ling of submissions in this court, brought to the Court?s attention a recent decision of the European Grand Chamber, and the opinion of Advocate General Cruz Villalon in: 1 2, ish Legal Emin Shirley v. Information Commissiigigier, United Utilities Water PIC, Yorkshire Water and Services and [2014] 2 C.M.L.R. 36 (?Fish Legal l9th opinion Advocate General Villalon delivered on the 5th of the concept of ?public administrative functions? D'irectiveiand considered at paragraph 75 that the concept ?does not or executive institutions in the true sense but rathergzisn t0 the full panoply of State powers?. He drew this conclusion because-igifeztheiefiemption in the Directive of judicial or legislative functions. These could not properly be considered to be administrative in any sense, and it was only by giving therefore a broad interpretation to public administrative functions, and making it akin to public functions, thatjudicial or legislative functions could be said to be within the initial de?nition and require exemption from it. Accordingly at paragraph 83 he stated that: believe that, for the purposes of the present proceedings, it can be concluded that, in the context of Directive 2003/4 ?public administrative functions? as an equivalent of public authority and save for possible legislative 29 and judicial exceptions which are not relevant in the present case are functions by virtue of which individuals have imposed on them a will the immediate effectiveness of which albeit subject to review, does not require their consent.? 48. The Court did not go so far in its determination. At paragraph 38 the Court noted that implementation guide to the Aarhus Convention may be regarded as an explanatory document to be taken in to account for the purposes of interpreting the Convention but that the observations had no binding force and do not have-the normative effect of the provisions of the Convention. It stated at paragraph that in referring to public authorities the authors of the Convention ?intended to administrative authorities, since within States it is those authoriti?swhich are usually required to hold environmental information in the functions?, citing Iachgias Torgcm v. Federal Re?iiblicgioxGermany [2012] 2 C.M.L.R. 17, paragraph 40. At paragraphs 51 Court observed: ?51 Entities which, organically, are i'fadmini?trative authorities, namely those which form part of the public or the executive of the State at whatever level, are public authorities purposes of Article of Directive 2003/4. This all legal persons governed by public law which bythe State and which it alone can decide to dissolve. i 52 The secoriid public authorities, defined in Article of Directive administrative authorities de?ned in functional be they legal persons governed by public law or by are entrusted, under the legal regime which is applicable to the performance of services of public interest, inter alia in the environmental ?eld, and which are, for this purpose, vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.? It was for the national tribunal or court to determine whether the rights and powers accorded to the particular bodies or companies, could be classi?ed as special powers. 30 49. NAMA argues that while a broad interpretation may be given to the term ?public authority? and in particular ?public administrative functions? there must in principle be some limit, otherwise it would not be necessary to use the adjective ?administrative? at all. In an appendix to its submissions, NAMA sets out a non- exhaustive list of bodies which would be captured by a literal reading of subparagraph some at least of which it argued could not be said to be carrying out public administrative functions, such as the Citizens Information Board, the Company Law Review Group, the Combat Poverty Agency, the HSE Crisis Pregnancy Programme, the Human Rights Commission, the Irish National Stud Company Irish Blood Transfusion Service, the Irish Museum of Modern Art, the Institute, the Science Foundation Ireland, the National Museum of__lrela1id,__tlte Laboratory, and Victims Support 50. If the law stood as it was at the time of the High"'Co'urtiiecision I would have considered it necessary to refer a question to the a body such as NAMA was a public body for the purpose of the exercised public administrative functions. The de?nition is unclear, and it is also necessary to consider the Aarhus the decision in Fish Legal provides an authoritative the Directive, and moreover does so in the context of a common Applying that test it is clear that NAMA is indeed a public authority.eggercising public administrative functions. Although like the water companies in obliged to act commercially, it is undoubtedly vested with beyond those which result from the normal rules applicablelriin persons governed by private law. If anything, the case is companies in Fish Legal were companies established in NAMA is established pursuant to a statute which confers upon it substantial powers of compulsory acquisition, of enforcement, to apply to the High Court to appoint a receiver and to set aside dispositions. The Act also restricts or excludes certain remedies against NAMA. The establishment and operation of NAMA is a signi?cant part of the executive and legislative response to an unprecedented financial crisis. The scope and scale of the body created is exceptional. Indeed if it were not so it would not be in a position to carry out the important public functions assigned to it in the aftermath of the ?nancial crisis. Accordingly, for the reasons set out above, I would dismiss the appeal. 31