Case number: CEI/10/0007
"Note: This decision was appealed to the High Court. "
In accordance with article 12(5) of the Regulations, the Commissioner reviewed the decision of the Bank and found that it was not justified in refusing the request on the ground that it is not a public authority within the meaning of the Regulations. She annulled the decision of the Bank and found that it is a public authority within the meaning of the Regulations.
In a request made to Anglo Irish Bank, dated 8 February 2010, the appellant sought access under the Regulations to the following records:
In a second request dated 12 February 2010, the appellant sought access to additional records as follows:
In both requests, and in anticipation of the Bank taking the opposite view, the appellant asserted that the Bank is a "public body" (sic) authority under Article 3(1)(vii) of the Regulations. (In fact, the Regulations refer to "public authority" rather than to "public body".) In support of his assertion, the appellant pointed out that, by virtue of S.I. No. 320 of 2009, the Bank is a prescribed public body for the purposes of the Ethics in Public Offices Act 1995.
The Bank refused the requests primarily on the basis that it was not a public authority within the meaning of the Regulations. On 1 April 2010, the appellant appealed to my Office against the Bank's decision.
Article 12 of the Regulations provides for an independent appeals mechanism and establishes the Office of Commissioner for Environmental Information to operate that appeals mechanism. Article 12(3) of the Regulations provides for the right of appeal to the Commissioner by a person whose request for environmental information has been refused. Article 11(5)(a) of the Regulations clarifies that a decision to refuse a request for environmental information, which may be appealed to the Commissioner, includes a request that "has been refused on the grounds that the body or person concerned contends that the body or person is not a public authority within the meaning of these Regulations".
In this present appeal, the decision under review by me is the decision of the Bank that it is not a public authority within the meaning of the Regulations. This appeal is not concerned with whether the information sought by the appellant, in his requests as set out above, constitutes "environmental information" as defined in the Regulations; nor is this appeal concerned with whether, in the event that the information sought is "environmental information", it falls to be made available to the appellant in accordance with the Regulations.
In the course of the conduct of this appeal my Office has had extensive contacts both with the Bank and with the appellant. Both parties to the appeal have made substantial submissions in support of their respective positions. While it is not necessary to set out the content of these submissions in detail in this decision, I can confirm that I have had full regard to these submissions in the course of making my appeal decision. In the course of the appeal also, the relevant Investigator in my Office set out, for the benefit of the parties, her preliminary views on the matters at issue in the appeal. The detailed submissions made by the appellant and by the Bank include responses to the preliminary views set out by my Investigator.
In the course of the appeal, the appellant decided to narrow the scope of the information covered by his requests. He did so at the suggestion of my Investigator who, at the time, was hopeful that the Bank might reconsider its position that it is not a public authority (for the purposes of the Regulations). Had this happened, the issues then would have been the substantive issues of whether the information sought constitutes environmental information and, if so, whether it should be made available. My Investigator took the view that narrowing the request, to what self-evidently constituted environmental information, would be likely to simplify the adjudication process. These efforts were made 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. In the event, these efforts did not succeed.
The issue for decision in this appeal is whether or not the Bank constitutes a "public authority" for the purposes of the Regulations.
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".
Article 3(2) provides:
"Notwithstanding anything in sub-article (I), 'public authority' does not include any body when acting in a judicial or legislative capacity."
It is clear that the Bank does not act either in a judicial or legislative capacity and, accordingly, that Article 3(2) has no relevance to this case.
While the appellant has made various arguments as to why the Bank should be regarded as a public authority, his fundamental argument is that the Bank is a body captured at item (vii)(I) above in the list of entities which the definition of public authority "includes". For its part, the Bank has made wide-ranging arguments in support of its case that it is not a public authority and, in particular, argues that it is not captured at item (vii)(I) above in the list of entities which the definition of public authority "includes".
The appellant maintains that the Bank is a public authority for the purposes of the Regulations by virtue of Article 3(1)(vii)(I), because it is a company under the Companies Act in which all the shares are held by the Minister for Finance. In his submission dated 8 December 2010, the appellant explains his view of the matter as follows:
"The definition in [A]rticle 3 of the Regulations is constructed as follows:
'public authority' means X and includes Y where X represents the three types of public authority 3(1)(a) to (c) and Y is a list of bodies and categories of bodies i.e. 3(1)(i) to (vii) that are included in the definition. Anglo clearly falls within the definition of 3(1)(vii)(I) since it is a company under the Company Act where all the shares are held by the Minister for Finance or his nominee."
The central premise of the Bank's position is that the Regulations must necessarily be interpreted in a manner that is consistent with the EU Directive [2003/4/EC] that they transpose into Irish law. The Directive was adopted by the European Union (EU) in order to give effect to one part of the 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". Article 3(1) of the Regulations follows the Directive, and in turn the Convention, with respect to subparagraphs (a) to (c) of the public authority definition, but neither the Directive nor the Convention includes a list of specified entities which corresponds to items (i) to (vii). The Bank argues that the list may not be given an expansive effect in the circumstances.
The Bank considers that the appellant's interpretation renders the words "and includes" to read effectively as "and also includes". In the Bank's view, the proper interpretation requires the word to be read instead as "and may include". According to the Bank:
"A body will only constitute a public body for the purposes of the Regulations if it falls within paragraphs (a) - (c) of the definition of a public body. The effect of paragraphs (i) - (vii) is to clarify the types of body which may be included within paragraphs (a) - (c). However, the fact that a body (such as the Bank) falls within one of the paragraphs (i) - (vii) will not render that body a public body unless it also falls within one or more of paragraphs (a) - (c)."
In other words, the Bank considers that subparagraphs (a) to (c) must be treated as qualifying conditions for meeting the public authority definition notwithstanding the use of the term "and includes" in the Regulations. According to the Bank, the meaning of the word "includes" is sufficiently flexible to be given a restrictive interpretation in the context of such a definition.
The Bank also suggests that there may have been a drafting error with respect to the structure of the Regulations. It argues that the Bank is not a public authority because, among other reasons, the final words of subparagraph (vii), "having public administrative functions and responsibilities, and possessing environmental information", are meant to qualify each of the subparagraphs at (I) to (IV). The Bank says: "In other words, in respect of paragraph (vii)(I) . . . , the category should be read as including a company under the Companies Act, in which all shares are held by or on behalf of a Minister of the Government and which has public administrative functions and responsibilities, and possesses environmental information." It asserts that any other interpretation would be "absurd".
It is undisputed that the Bank is a company under the Companies Acts. It is also undisputed that the Bank was nationalised on 21 January 2009 under the Anglo Irish Bank Corporation Act 2009 and, consequently, all of its shares are now held by or on behalf of the Minister for Finance. On the face of it, therefore, the Bank is a body captured at item (vii)(I) in the list of entities which the definition of public authority "includes" and, accordingly, would appear to be a public authority for the purposes of the Regulations. The position advocated by the Bank requires one to set aside the ordinary and plain meaning of the word "includes" in favour of an understanding which connotes a limiting rather than an inclusive or extensive meaning.
Essentially, this decision therefore depends on the application of the rules of statutory interpretation. David Dodd in Statutory Interpretation in Ireland (Tottel Publishing, 2008) summarises the basic approach in this type of situation:
"Starting from the point that the text of the enactment is the pre-eminent indicator of the legislature's intention, two principal rules follow: the ordinary (or literal) meaning rule and the plain meaning rule. The former rule provides that words and phrases should be given their ordinary and natural meaning. The latter rule provides that where that meaning results in a provision being entirely plain and unambiguous, then the interpreter's job is at an end, and effect must be given to that plain meaning."
Dodd states also:
"Subject to some exceptions and additional rules, the same general principles of interpretation that apply to primary legislation apply to secondary legislation."
Furthermore, he explains that the literal or textualist approach to interpretation is also employed with respect to European legislation and notes that
"[i]n many cases, the literal and teleological approach will coincide".
The Courts in Ireland have dealt with the meaning of "includes" in several judgments. Murdoch's Dictionary of Irish Law states:
"The word include has been held to be a word of extension when used in a statutory definition: Attorney General (McGrath) v Healy  IR 393. A word in a statute will have its ordinary meaning in addition to that included by the extension where the extension include is given in its definition. The word include has the function of enlarging the meaning of the words or phrase with which it is associated: Dilworth v Stamp Commissioner  AC 99."
In Attorney General (McGrath) v. Healy  IR 393, Justice Pringle quoted from the judgment in Bolger v. Doherty  I.R. 233 in relation to the effect of the term "includes" when used in a statutory definition:
"No doubt there are cases where the word 'includes', as used in a definition section, has been held to be equivalent to 'means and includes'; but that is not its ordinary meaning. When a definition section in a statute provides that a word shall 'include' something, it implies usually that 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."
This passage makes it very clear to me that the word "includes", when used in a statutory definition, is ordinarily a word of expansion under Irish law. Further support for this view is found in The People (Director of Public Prosecution) v. Cawley  4 I.R. 321 which notes that in Attorney General (McGrath) v. Healy, it was held that "includes" is a word of expansion when used in a statutory definition. Relevant also is Flynn v. Denieffe  I.R. 772 which refers to the fact that
"In Bolger v. Doherty ... the then President of the High Court held that the definition of lottery aforesaid and in particular the word 'includes' was designed to extend the definition to activities which would not fall within the ordinary meaning of that word but that this extended meaning did not exclude from the definition those lotteries which would fall within the ordinary sense of the word."
Thus although, as the Bank points out, "includes" can also be considered as "means and includes", this is not its ordinary meaning. Moreover, "includes" is usually used in statutory definitions in order to extend the definition to something that would not ordinarily fall within the meaning of the term being defined. Thus, I find that I must necessarily interpret the term "public authority" as defined in the Regulations as extending to all of the types of entities included in the list at items (i) to (vii) regardless of whether such entities would ordinarily be considered to be public authorities or not. In this regard, however, I note that the definition of "public authority" provided at section 3(1) of the Environmental Protection Act 1992 Act is broadly equivalent to subparagraphs (i) to (vii) in the definition of "public authority" as provided at Article 3(1) of the Regulations.
There is also an example of a similar interpretation clause in the Freedom of Information (FOI) Act 1997 which has been the subject of judgment recently in both the High Court and the Supreme Court. The definition of "personal information" in section 2 of the FOI Act has a similar structure to the definition of "public authority" in the Regulations:
"personal information" means information about an identifiable individual that-
(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential,and, without prejudice to the generality of the foregoing, includes-
(i) information relating to ...
(ii) information relating to ...
(iii) information relating to ...
(iv) information relating to...
(v) information relating to ...
(vi) information relating to ...
(vii) a number, letter, symbol, word, mark or other thing assigned ...
(viii) information relating to the entitlements of ...
(ix) information required for the purpose of ...
(x) the name of the individual where it appears with ...
(xi) information relating to ... and
(xii) the views or opinions of another person about the individual ..."
In The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women and the Information Commissioner  IEHC 315 McCarthy J. dealt specifically with the question of whether, in order to qualify as "personal information", it was necessary that information captured at any one of the twelve items listed at (i) - (xii) should firstly satisfy the requirement of falling into either category (a) or (b). The position previously adopted by the Information Commissioner had been that it was not sufficient that information be captured at any one of the twelve items listed at (i) - (xii) but that it must first of all be information captured by the wider categories at (a) or (b) which she regarded as being an "overarching" requirement. In this respect, the position previously taken by the Information Commissioner to this kind of interpretation clause is very similar to the position being advocated by the Bank in this present case. McCarthy J. found that the Information Commissioner was incorrect in taking this approach; in a finding, which was upheld recently (19 July 2011) in the Supreme Court, he noted at paragraph 42:
"I think that I might safely, and briefly, at this stage dispose of the proposition that if given information was to fall within the category of 'personal information', it would be necessary not merely that it should be one of the listed classes in the definition (at (i) to (x)) (sic) but also that it would 'satisfy' what the Commissioner has described as 'the overarching prior requirements', namely, those at subparas. (a) and (b) above. It seems to me that this is a fundamental misconception in terms of an interpretation of the Act. This is because what is described as the list is 'without prejudice to the generality of the foregoing'; the point is, accordingly, that personal information may well extend beyond the listed items but that, whatever else, such listed items are personal information. This type of provision is a commonplace in legal usage, if not on a more widespread basis."
While McCarthy J. placed some emphasis on the phrase "without prejudice to the generality of the foregoing", I nevertheless believe that his finding is consistent with the approach in the cases cited above and that it applies to the definition of "public authority" in this present decision. On this basis, it is sufficient in order to qualify as a "public authority" that a body or person be captured by any one of the items listed at (i) - (vii) and this is the case whether or not the body or person is captured also by the categories at sub-paragraphs (a), (b) or (c).
Returning to the rules cited above from Dodd's Statutory Interpretation in Ireland, I am satisfied that the ordinary (or literal) meaning of "includes" has an extensive or expansive connotation requiring that what is governed by "includes" is to be added in or included. Furthermore, I am satisfied that giving this meaning to "includes" results in the provision (the definition of "public authority") being entirely plain and unambiguous. On this basis, I am satisfied that in applying the Regulations effect should be given to the plain meaning of "includes".
The Bank maintains that allowing the word "includes" its ordinary meaning would have the consequence, in the present context, of extending the definition of public authority beyond what is envisaged in the EU Directive. What the Bank 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 inclusion. It is not at all clear that, as Commissioner for Environmental Information, I may 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, 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 definition of "public authority" in the Regulations, gives 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 to take an expansive approach to what constitutes a "public authority". Recital (11) of the Directive refers expressly to an expansive intent in relation to the definition; and Recital (24) expressly permits Member States "to maintain or introduce measures providing for broader access to information than required by this Directive." Therefore, I do not accept that subparagraphs (a) to (c) of the definition of "public authority" in the Regulations should be interpreted as restrictive criteria where a Member State has apparently chosen to take an expansive approach to the definition.
I disagree with the Bank's contention, as set out in its submission dated 10 March 2011, that the rule known as ejusdem generis applies. In Statutory Interpretation in Ireland, Dodd describes the ejusdem generis rule as follows:
"Where a list or string of genus-describing terms are followed by wider residuary or sweeping-up words, the ordinary or wide meaning of the residuary words is presumed to be limited to things of that class or genus."
Dodd explains, however, that the "ejusdem generis canon is not a binding rule and will not be applied where there is some contrary indication."
He refers to the Supreme Court judgment in Royal Dublin Society, Applicant v. The Revenue Commissioners  I.R. 270 in which Keane J. took the view that all words should be given their "common meaning". Dodd also advises:
"Where general words are followed by particular instances, the generality is not normally cut down by the particular instances - ejusdem generis does not apply."
In this case, the plain and ordinary meaning of "includes" is expansive when used in a statutory definition. As used in the definition of "public authority" at Article 3(1) of the Regulations, it provides that, "whatever else", the listed entities are public authorities. For this reason alone, ejusdem generis does not apply. Moreover, in my view, subparagraphs (a) to (c) in the definition of "public authority" do not describe a particular class or genus. On the contrary, the terms used are general and subject to varying interpretations, whereas the list of entities provided at (i) to (vii), though wide ranging, is more specific in its terms.
Lastly, I do not accept that the conditions included at subparagraph (vii)(IV) should be read as being applicable also to items (I) to (III) of subparagraph (vii). This simply is not what subparagraph (vii) provides for. The word "or" is used following the comma in subparagraph (vii)(III), which reflects that subparagraph (IV) describes an entirely separate category from the three preceding categories. The conditions, in turn, are contained entirely within subparagraph (vii)(IV). Moreover, it does not strike me as the least bit "absurd" that a company in the direct ownership of a Minister would be defined as a public authority without any further conditions applying, whereas a subsidiary company indirectly owned by the Minister would only be a public authority if it had public administrative functions and responsibilities. Rather, I consider that it may simply reflect a difference in terms of expectations of openness and accountability between companies in direct as opposed to indirect state ownership.
In accordance with Article 12(5) of the Regulations, I have reviewed the decision of the Bank in this case. I find, for the reasons set out above, that the Bank was not justified in refusing the appellant's request on the ground that it is not a public authority within the meaning of the Regulations. I find that the Bank is in fact a public authority on the basis that it fits the criterion at item (vii)(I) in the list of entities numbered (i) to (vii) which the definition of public authority "includes".
Having found that it is sufficient, for the purposes of meeting the definition of "public authority", that a body is captured by any one of the provisions set out at items (i) - (vii) within the definition, there is no necessity in this present case to consider whether the Bank is captured also by any of the categories (a), (b) or (c) as contained in the definition.
I hereby annul the decision of the Bank and find that it is a public authority under Article 3(1)(vii) of the Regulations. In the light of this decision, the Bank must now deal with the appellant's requests as originally made by him on 8 February 2010 and 12 February 2010, respectively. It is open to the appellant, should he so chose, to narrow the range of information which he seeks.
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.
Commissioner for Environmental Information
27 September 2011