Decision
Right to Know CLG and Kilkenny Abbey Quarter Development Partnership
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0044
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0044
Published on
Whether the Partnership is a public authority within the meaning of article 3(1) of the AIE Regulations
This case concerned the status of a limited partnership. The Companies Registration Office (CRO) website (www.cro.ie) explains here that:
“A partnership is where a minimum of two persons conduct business with a view to making a profit.
It is not a separate legal entity - that is to say, a partnership has no legal personality, separate and distinct from the various partners which comprise the partnership. A partnership that adopts a name that does not consist of true names of the partners without any addition must register the name as a Business Name.
The Limited Partnership Act 1907 facilitates the creation of a partnership in which some members have limited liability for the debts of the firm. Their liability is limited to the extent of their contribution. As with a general partnership, a limited partnership is not a separate legal entity.
A limited partnership must consist of at least one general partner and one limited partner. The general partner(s) is/are liable for all the debts and obligations of the firm. The limited partners contribute a stated amount of capital and are not liable for the debts of the partnership beyond the amount contributed.
A limited partnership must be registered with the CRO and in accordance with the 1907 Act; otherwise the partnership is a general partnership.”
On 12 December 2016, Kilkenny Abbey Quarter Development Partnership (the Partnership) registered its limited partnership with the Companies Registration Office (CRO) and it was given the reference number LP1550. Its partners are:
On 20 August 2018, the appellant submitted an AIE request to the NTMA and the Council making it clear that it was “addressed to the entity known as Kilkenny Abbey Quarter Development Partnership, LP1550, Registered 12.12.16”. The request was worded as follows:
“We understand that this is a 50/50 partnership between Kilkenny County Council and the NTMA, both of which are public authorities and the purpose of the partnership is to develop a part of Kilkenny City previously owned by Diageo. Please provide the following environmental information:
When the Council acknowledged receipt of the request, the appellant asked it to confirm that the request was being handled on behalf of Kilkenny Abbey Quarter Development Partnership. The Council responded by saying that the request “has been passed to Kilkenny Abbey Quarter Development Partnership”. The NTMA also acknowledged receipt of the request. It apologised for the delay in responding, saying that the delay was “due to the need to examine and consider the structure of the Kilkenny Abbey Quarter Development Partnership”.
The GP responded to the AIE request on 19 September 2018, explaining its own position as GP and maintaining that it is not bound by the AIE Regulations. On the same day, the appellant asked the GP for an internal review, adding its belief that “both the General Partner and the Limited Partnership are public authorities for the purposes of the AIE Regulations”.
The appellant did not receive an internal review decision, and, on 14 November 2018, it appealed to my Office, saying that the Partnership “is clearly a public authority”.
On being assigned to this case, my investigator sought to establish the Partnership’s position on the request. He noted that while the GP had explained its own position and asserted that it is not bound by the AIE Regulations, it had not stated the position of the Partnership. When he engaged with the GP, its Chief Executive confirmed that he was entitled to speak for the Partnership and he confirmed that the Partnership’s position is that it is not a public authority within the meaning of the AIE Regulations. With that clarification, the scope of my review was clear.
While it is clear that both the Council and the NTMA are public authorities, I express no view as to whether or not the GP is a public authority. In a submission to my Office, the appellant stated that “the request may be considered to be made to any one of or all of the partners which are all public authorities”. That statement was not in keeping with the appellant’s expressed wish for the request to be dealt with by the Partnership itself. I regarded this review as confined to the question of whether the Partnership is a public authority within the meaning of the AIE Regulations.
In conducting my review I had regard to the submissions made by the appellant and the Partnership. I also had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance); Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based; the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’); and the relevant jurisprudence of the courts on the definition of the term ‘public authority’.
The law
Article 3(1) of the AIE 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 subparagraph (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information;
Sub-article (2) provides that: “Notwithstanding anything in sub-article (1), ‘public authority’ does not include any body when acting in a judicial or legislative capacity”. This was not relevant to the current case, as there was no question of the Partnership acting in a judicial or legislative capacity.
In National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51 (NAMA), available at www.courts.ie, O'Donnell J. considered the significance of that part of the definition which follows the words "and includes", and concluded that "it was not here intended to operate as extending the meaning of the prior paragraphs", i.e. paragraphs (a), (b) and (c). There are therefore just three categories of public authority within the meaning of the AIE Regulations.
The Partnership’s position
The Partnership’s position is that is not a public authority. It submitted that it cannot be, as it is neither a natural person nor a legal person.
The appellant’s arguments
The appellant’s position is that Kilkenny County Council and the NTMA are 50:50 equity partners in the Partnership. It submitted that:
“The Aarhus Convention must be given a broad purposive interpretation and that the definition of what is a public authority is functional in nature and does not depend on the legal form of any particular entity. The Aarhus Convention Implementation Guide contemplates that “legal person” as that term is to be understood in the Convention includes public authorities acting through agents including corporations and partnerships “legal person” refers to an administratively, legislatively or judicially established entity with the capacity to enter into contracts on its own behalf, to sue and be sued, and to make decisions through agents, such as a partnership, corporation or foundation “ (page 46 of the Aarhus Convention, an Implementation Guide, 2nd ed. 2014, with appellant’s emphasis added).
The appellant accepted that, in Ireland, partnerships are not legal entities in their own right. It argued, however, that the Partnership is a partnership between two category (a) public authorities and a GP which it understands to be a limited company that is 50:50 owned by the other partners. It submitted that:
“the project that the Partnership has been established to develop is a public project to develop publicly owned land in Kilkenny city using public funds. It clearly is the type of activity of public authorities in respect of which there should be access to environmental information and the legal form and how the project is financed does not affect this”.
The appellant said that in Irish law any partner can bind a partnership and therefore the request may be considered to be made to any one of or all of the partners which are all public authorities. It added that it also considers the limited company to be a public authority since it has been specifically incorporated by two public authorities to perform a public function, i.e. to be the general partner in a limited partnership between two public authorities tasked with developing publicly owned land. It maintained that the fact that the Partnership is not a legal person in its own right does not affect the request.
The issue was whether the Partnership, as a partnership between legal persons, is itself a public authority, despite not having ‘legal personhood’. My Office had not previously recognised such a public authority and we had no knowledge of such an entity being recognised as a public authority in another jurisdiction. Notwithstanding this, I considered the question carefully.
The appellants’ case rested on arguments founded on the Aarhus Convention and the status of partnerships in Irish law.
In relation to the Aarhus Convention, the appellant submitted that “the definition of what is a public authority is functional in nature and does not depend on the legal form of any particular entity” and it cited an extract from the Aarhus Guide. I am not bound to follow that Guide, but I had regard to it. The full text of the paragraph in questions is:
“A natural person is a human being, while ‘legal person’ refers to an administratively, legislatively or judicially established entity with the capacity to enter into contracts on its own behalf, to sue and be sued, and to make decisions through agents, such as a partnership, corporation or foundation. While a governmental unit may be a legal person, such persons would already be covered under subparagraph (a) of the definition of “public authority”. Public corporations established by legislation or legal acts of a public authority under (a) fall under this category. The kinds of bodies that might be covered 2 by this subparagraph include public utilities and quasi-governmental bodies such as water authorities.
I did not see that this supports the proposition that a partnership that is neither a natural nor a legal person can be a public authority. While it refers to “legal persons with the capacity to make decisions through agents such as a partnership”, it does not say or imply that a partnership may itself become a public authority as a result of being so used by a legal person.
There are 47 parties to the Aarhus Convention and many of those are non-EU countries. It could be that in some of the signatory countries partnerships can be legal entities. However, for my purposes, I was solely concerned with whether I should regard the Partnership, which all agree is not a legal person, as a public authority.
As for the argument that the request may be considered to be made to any one of or all of the partners, it is clear from the records associated with this case that the appellant wanted the request to be at all times dealt with by the Partnership and not by its partners acting on their own behalf.
I considered the three categories of public authority that are set out in the AIE Regulations.
I am satisfied that public authorities of categories (b) and (c) must be either natural persons or legal persons. As the Partnership is neither, I am satisfied that it is not a public authority within the meaning of categories (b) or (c).
I am willing to accept that the Partnership is an “entity” of sorts, albeit that, as I understand it, a partnership in Irish law to more of an “arrangement between entities” than a true “entity” in its own right. To be a public authority within the meaning of paragraph (a) of the AIE Regulations, an entity must be a:
“government or other public administration, including public advisory bodies, at national, regional or local level”.
The Supreme Court held in in National Asset Management Agency -v- Commissioner for Environmental Information [2015] IESC 51 (NAMA) (at paragraph 4) that:
“The concept of “government at national, regional and other level” addressed in subparagraph (a) is reasonably clear, although there may perhaps be some debate at the margins as to what is captured by that definition”.
I was satisfied that the Partnership is not ‘a government’. In relation to the words “or other public administration”, I noted that these words are not part of the relevant definition given in the Convention. The Convention defines the first category of public authority (in article 2.2) as a “Government at national, regional and other level”.
The Directive defines it (in article 2.2) as: “government or other public administration, including public advisory bodies, at national, regional or local level”.
Notwithstanding these extra words in the Directive (which are replicated in the AIE Regulations), the Supreme Court did not appear to regard those extra words as adding anything of significance to the definition: It held in NAMA (at paragraph 6), when comparing the definitions given in the Directive with the Convention, that:
“With the exception of the words “including public advisory bodies” and other purely grammatical and syntactical changes, this is functionally identical to the provisions contained in the Aarhus Convention.”
The Court went on to cite with approval the judgment of the Grand Chamber of the Court of Justice of the European Court in case C-279/12, Fish Legal & Emily Shirley v. Information Commissioner, United Utilities Water Plc, Yorkshire Water and Services Ltd and Southern Water Services Ltd (Fish Legal) (available at curia.europa.eu), which held 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”.
I understood from this that public authorities that fall within the first category of the definition in both the Directive and the AIE Regulations, as “government or other public administrations, at national, regional or local level”, are organs of the State. I have no basis for regarding the Partnership as an organ of the State and I am satisfied that this settles the matter.
I am not satisfied that the Partnership is a public authority within the meaning of the AIE Directive and Regulations. Accordingly, I find that the Partnership is not subject to the AIE Regulations.
Information Note
It is open to any person, including the appellant, to direct AIE requests to the Council and/or the NTMA seeking access to environmental information held by or on behalf of each of those public authorities. I further note that the Council is a Freedom of Information body under the Freedom of Information Action 2014 and the NTMA is “partially included agency” under that Act.
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