Decision
Right to Know CLG and Allied Irish Banks, p.l.c. (AIB)
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0025
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0025
Published on
In a request made to AIB dated 26 June 2018, the appellant sought access under the AIE Regulations to copies of all correspondence from 1 July 2017 between AIB and any of the following bodies regarding AIB plans to set up a €100 million social housing development fund: The Department of Finance, the Department of Housing, Planning and Local Government, and the National Asset Management Agency (NAMA). On 28 June 2018, AIB replied to the appellant by stating that it was not a "public body" for the purposes of the Regulations. The appellant immediately requested an internal review of the matter. On 29 June 2018, the person at AIB who responded to the appellant's original request refused the request for internal review, again on the basis that it was not a "public body" and the AIE Regulations therefore did not apply. On 10 August 2018, the matter was appealed to this Office on the basis of AIB's deemed refusal of the appellant's internal review request. As AIB's response to the appellant's internal review request did not comply with article 11(2) of the AIE Regulations, the appeal was deemed to have been made in a timely manner and was therefore accepted.
I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by AIB and the appellant. I have also had regard to: the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations; Directive 2003/4/EC, upon which the AIE Regulations are based; The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide] relating to the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which is more commonly known as the Aarhus Convention; and also the text of the Aarhus Convention itself.
Article 12(3) of the Regulations provides for a right of appeal to my Office where a decision by a public authority has been affirmed under article 11, i.e. on internal review. Article 11(5)(a) of the Regulations clarifies that a decision to refuse a request, which may in turn be appealed to my Office, includes a request that "has been refused on the ground that the body or person concerned contends that the body or person is not a public authority within the meaning of these Regulations". Accordingly, this review is limited to the question of whether AIB is a public authority within the meaning of the Regulations.
Definition of "public authority"
Article 3(1) of the Regulations provides that
"'public authority' means, subject to sub-article (2)-
(a) government or other public administration, including public advisory bodies, at national, regional or local level,
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment, and
(c) 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 (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 of 2001),
(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),
(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 are 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 public administrative functions and responsibilities, and possessing environmental information".
In National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51 (NAMA), available at www.court.ie, O’Donnell J. interpreted the structure of the definition of "public authority" as "reproducing the international and European law terms, and thereafter attempting to clarify the scope of application of those terms within the Irish legal system, rather than somehow extending them.” Accordingly, sub-articles (i) to (vii) do not extend the primary elements of the definition contained at (a) to (c), which correspond to the definition of "public authority" as set out in Articles 2(2)(a) to (c) of the Directive.
Guidance on the meaning of the term "public authority" under Article 2(2) of the Directive, and thus article 3(1) of the Regulations, is provided by the judgment of the Court of Justice of the European Union (CJEU) in C-279/12 Fish Legal and Emily Shirley v Information Commissioner and Others (Fish Legal EU), available at Fish Legal EU. At paragraph 67 of Fish Legal EU, the CJEU summarised the definition as follows:
“Thus, in defining three categories of public authorities, Article 2(2) of Directive 2003/4 is intended to cover a set of entities, whatever their legal form, that must be regarded as constituting public authority, be it the State itself, an entity empowered by the State to act on its behalf or an entity controlled by the State.”
Regarding the meaning of “public authority” as defined in Article 2(2)(a) of the AIE Directive (the equivalent provision of article 3(1)(a) of the AIE Regulations), the CJEU stated at paragraph 51 that:
“Entities which, organically, are administrative authorities, namely those which form part of the public administration or the executive of the State at whatever level, are public authorities for the purposes of Article 2(2)(a) of Directive 2003/4. This first category includes all legal persons governed by public law which have been set up by the State and which it alone can decide to dissolve.”
The CJEU considered in detail the meaning of Article 2(2)(b) of the AIE Directive (the equivalent provision to article 3(1)(b) of the AIE Regulations). The CJEU stated at paragraph 48 that:
“It follows that only entities which, by virtue of a legal basis specifically defined in the national legislation which is applicable to them, are empowered to perform public administrative functions are capable of falling within the category of public authorities that is referred to in Article 2(2)(b) of Directive 2003/4. On the other hand, the question whether the functions vested in such entities under national law constitute ‘public administrative functions’ within the meaning of that provision must be examined in the light of EU law and of the relevant interpretative criteria provided for by the Aarhus Convention for establishing an autonomous and uniform definition of that concept.”
Thus, it clarified that the terms “public administrative functions” must be examined in the light of EU law and that a body, in order for it to be a public authority under Article 2(1)(b), must be empowered to perform those functions by national law.
The CJEU went on to adopt a functional approach to assessing whether a body is performing public administrative functions. It stated at paragraph 52 that:
“The second category of public authorities, defined in Article 2(2)(b) of Directive 2003/4, concerns administrative authorities defined in functional terms, namely entities, be they legal persons governed by public law or by private law, which are entrusted, under the legal regime which is applicable to them, with the performance of services of public interest, inter alia in the environmental field, 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.”
The CJEU went on to explain at paragraph 56 that:
“… in order to determine whether entities ... can be classified as legal persons which perform 'public administrative functions' under national law ... it should be examined whether those entities are vested, under the national law which is applicable to them, with special powers beyond those which result from the normal rules applicable in relations between private persons governed by private law.”
Therefore, in assessing whether the functions being performed by a body are public administrative functions, one should examine whether the body is tasked by national law with the performance of services of public interest, and is, for that purpose, vested by national law with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law.
In addressing the issue of whether a body is “under the control of” a public authority within the meaning of Article 2(2)(c) of the AIE Directive (the equivalent provision to article 3(1)(c) of the AIE Regulations), the CJEU stated at paragraph 73 that:
"undertakings, such as the water companies concerned, which provide public services relating to the environment are under the control of a body or person falling within Article 2(2)(a) or (b) of Directive 2003/4, and should therefore be classified as ‘public authorities’ by virtue of Article 2(2)(c) of that directive, if they do not determine in a genuinely autonomous manner the way in which they provide those services since a public authority covered by Article 2(2)(a) or (b) of the directive is in a position to exert decisive influence on their action in the environmental field."
The appellant's position
In its requests to AIB, the appellant suggested that AIB is a public authority under article 3(1)(c) of the definition because it is controlled by the Irish State via its shareholding and has public responsibilities or functions and/or provides public services in relation to the environment. The public responsibilities/functions or public services identified were its funding of social housing.
In a submission dated 22 August 2018, the appellant contends the State's 71.2% stake in AIB means that AIB is effectively controlled by the State. The appellant refers to the bank's relationship framework agreement with the Minister for Finance in support of the contention that it is answerable to the State. The appellant notes in particular that:
"- The bank is obliged by the Minister for Finance to operate in a 'prudent and sustainable manner'.
- The bank must consult with the Minister for Finance before appointing, reappointing or removing its chairperson or chief executive.
- The Minister for Finance must give direct sanction on several key matters relating to day-to-day bank operation, for example – payment of bank dividends, issues relating to executive remuneration, bonus payments, and share incentive schemes.
- The Minister also has indirect powers over the setting of interest rates and has used influence to cause AIB to cut rates on several occasions."
The appellant also refers to the bank's recent launch of a €100 million social housing fund providing funds to developers and suggests, in reference to the framework agreement, that it is likely that this initiative required the approval of the Minister for Finance. In addition, the appellant states that AIB has worked closely with housing agencies and in line with "Rebuilding Ireland's vacant home initiative". The appellant's submission includes links to documents on AIB's website describing its commitment to the social housing sector.
AIB's position
In response to the appellant's requests, AIB suggested that it was not under the control of the State because not all shares are held by or for the Minister. It also indicated that it does not have a role in public administration. AIB indicated that it therefore did not regard itself as being a public authority and thus subject to the AIE Regulations. In a submission received on 9 January 2019 and marked "CONFIDENTIAL AND COMMERCIALLY SENSITIVE INFORMATION" - "HIGHLY CONFIDENTIAL STRICTLY ADDRESSEE ONLY", AIB maintains its position that it is not a public authority within the meaning of the Regulations. In light of the suggestion that it falls within the scope of paragraph (c) of the definition, AIB emphasises that it was established by private law and has not been conferred with any public responsibilities or functions relating to the environment, nor has it been entrusted under any legal regime with the performance of public services of public interest relating to the environment. Moreover, it indicates that its provision of funding for social housing is a commercial matter rather than a public service required by the State.
Articles 3(1)(a) & (b)
The appellant does not appear to argue that AIB is a public authority within the meaning of article 3(1)(a) or (b) of the Regulations. Nevertheless, having regard to Fish Legal EU and NAMA, I find that article 3(1)(a) does not apply to AIB, which is a public limited company governed by the Companies Act 2014. I also find no basis for concluding that AIB has been vested with "special powers" under Irish law such that it may be regarded as performing public administrative functions within the meaning of article 3(1)(b).
Article 3(1)(c)
The appellant's position seems to be that AIB is a public authority within the meaning of paragraph (c) of the definition, i.e. that it is a "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 (a) or (b)". As noted in previous decisions, there are three elements to consider when determining whether a body is a public authority within the meaning of article 3(1)(c). They are:
1. Does the body have public responsibilities or functions or provide public services?
2. Do those public responsibilities, functions or services relate to the environment?
3. Is the body under the control of a public authority falling under paragraph (a) or (b) of the definition, e.g., government or other public administration body or any natural or legal person performing public administrative functions under national law?
All three elements must be met for a body to be a public authority under article 3(1)(c).
As I stated recently, in Case CEI/18/0039 (Right to Know CLG & Raheenleagh DAC), available at www.ocei.ie, I am not aware of any case law directly on the issue of when a body has public responsibilities or functions or provides public services within the meaning of article 3(1)(c). However, it is relevant to note that the water companies whose status was under consideration by the CJEU in Fish Legal EU"must comply with a number of statutory duties relating to maintenance and improvement of infrastructure and to water supply and/or sewage treatment in their respective areas" (paragraph 14). In contrast, as the framework agreement confirms, AIB is a commercial entity that is required to operate as an independent competitor in the financial market. I do not accept that the funding by a commercial bank of social housing qualifies as a public responsibility or function, or a public service for the purposes of article 3(1)(c) where such funding is provided on a voluntary or commercial basis rather than mandated by the relevant public authority falling under paragraph (a) or (b) of the definition.
The appellant argues that AIB is effectively controlled by the State but I see nothing to suggest that AIB is required by the State to provide funding for social housing or any other public needs. Rather, the documents available on AIB's website, to which the appellant's own submission provides links, indicate that AIB analysed the housing market and decided, of its own initiative, to make a substantial commitment to the social housing sector by setting up a Social Housing Development Fund. While it is not clear, the appellant appears to suggest that the provision of any service that may be regarded as being of benefit to the public, such as funding for social housing, is sufficient to bring a company within the scope of the public authority definition where that company is owned in full or in part by the State. I disagree and note that such a finding could act as a disincentive to the provision of such services by commercial entities. As I have said previously, being a part of a system which is of significant public interest does not mean that every actor which plays a part in that system provides a public service.
In this case, I am not satisfied that AIB has any public responsibilities or functions or provides public services. I therefore conclude that article 3(1)(c) does not apply. In the circumstances, I consider it unnecessary to determine whether any of its responsibilities, functions or services relate to the environment or whether it is under the control of the Minister for Finance, a public authority under paragraph (b) of the definition.
Having carried out a review under article 12(5) of the AIE Regulations, I find that AIB is not a public authority within the meaning of the definition in article 3(1) of the AIE Regulations. Accordingly, it was not obliged to process the appellant's request for access to information under the AIE Regulations, and I have no further jurisdiction in relation to this matter.
A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Peter Tyndall
Commissioner for Environmental Information