Anglo – requesting information

[posted to thestory.ie]

Readers will be aware that Anglo Irish Bank was nationalised in January 2009. This came after the bank guarantee scheme of September/October 2009. Anglo became a prescribed body under the Ethics in Public Office Act last summer, which was expanded through a statutory instrument in February 2010 to cover many subsidiaries of the bank.

However, Anglo has not become a prescribed body under the Freedom of Information Act 1997/2003. This would require the signature of Finance Minister, Brian Lenihan. Given the sheer volumes of public money already given to the bank, and the volumes of public money due to be given, it is outrageous that the public has no recourse to information as to how this money is being spent. We cannot quantify expenditure by the bank, nor has the Government made any effort to inform the public about how much public money has been given to the banks, and how it is exactly spent.

I gave a great deal of thought to this problem over the last number of months, and decided on a course of action that will be unknown to many. I have decided to publicise this process in the hope that others will follow. We have a right to know what is going on. As a result I started a process that I believe is the most significant and important request for information we have sent to date.

On February 8, 2010, I sent the following email to the Anglo Board through then secretary to the Board, Natasha Mercer.

Request for access to environmental information under European Communities (Access to Information on the Environment) Regulations 2007

Dear Sirs,

In accordance with the above mentioned regulations, I wish to request the following records which I believe to be held by Anglo Irish Bank Corporation Limited (“the Bank”):

1) All minutes of board meetings from January 2009 to January 2010, inclusive, insofar as such meetings relate to property or property related loans.

2) A breakdown of all properties owned or controlled by the Bank, or its agents or subsidiaries, (including any charges held over any properties, by it or its subsidiaries companies), to include the following data: for how much they were purchased, the date of the purchase, any amount owed, the address and/or land coordinates of the properties, the current estimated value of the properties, all environmental impact assessments, risk reports, other assessments and economic analyses carried out in relation to all properties and lands and their related loans. The date range for this request is January 2009 to January 2010, inclusive.

3) A breakdown of all security, collateral or charges held by the bank in relation to property.

In order to clarify the legal position, and to identify the legal arguments at an early stage to save costs, I put forward the legal arguments on possible defences here.

Anglo Irish Bank is a public body according to Section 3 (1) (vii) of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No 133/2007). In addition, according to S.I. 320/2009, Anglo Irish Bank is a public body for the purposes of the Ethics in Public Office (Prescribed public bodies, designated directorships of public bodies and designated positions in public bodies)(Amendment) Regulations 2009.

Regulation 2 of the EIR provides the interpretation of terms in the EIR and in regulation 2(1) it states: “environmental information” has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on –

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

(d) reports on the implementation of environmental legislation;

(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and

(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);

The information sought relates directly to properties and lands and therefore are “measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b)”.

This may be in the form of affecting “landscape” and “natural sites including wetlands, coastal and marine areas”, or biological diversity and its components”. It may also affect “factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a)”.

The information clearly falls under (e): “cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c)”.

Including economic and financial information in the definition in the Aarhus Convention stems from the recognition that it is important to integrate environmental and economic considerations in decision-making. This section is qualified by referring back to paragraph (c) measures and activities; so they are the economic and financial aspects taken into account when framing and operating these measures and activities. It ensures that the definition of environmental information extends not only to environmental measures and activities, but also to any of their economic aspects.

In the case of (f), lands and properties referred to in the reports would also be relevant, in terms of “the state of cultural sites and built structures”.

In addition Recital 10 in the introduction to the Directive includes:

“The definition of environmental information should be clarified so as to encompass information in any form on the state of the environment, on factors, measures or activities affecting or likely to affect the environment or designed to protect it, on cost-benefit and economic analyses used within the framework of such measures or activities and also information on the state of human health and safety, including the contamination of the food chain, conditions of human life, cultural sites and built structures in as much as they are, or may be, affected by any of those matters.”

Article 2(1) aims to provide that clarification. With that in mind, there is little to be gained from considering the subtle differences between, for example, “air and atmosphere” or “discharges and releases”. The examples are there to help identify what is environmental information, not to confuse.

Also, as they are only examples, there will also be other elements of the environment not mentioned in regulation 2(1)(a) and other factors not mentioned in regulation 2(1)(b). The examples are not intended in any way to limit the general definitions of environmental information.

Please note that according to Article 3 (2) (a) of the Directive, you are obliged to provide the information requested “as soon as possible, or at the latest, within one month” (20 working days) of being requested. I look forward to a response within the time period prescribed.

I wish to obtain all information in electronic format via email. I understand that much if not all of the sought information is held digitally, I therefore seek it in this format to save time and costs.

Please contact me by email to discuss any problems which may occur with this request.

Sincerely

Gavin Sheridan

The Bank, via Anglo Head of Legal Lizanne White, replied within the 20 day time period prescribed under the Regulations. This is the reply, my emphasis:

Having considered the European Communities (Access to Information on the Environment) Regulations 2007 (the “Regulations”) we have concluded that the Bank is not a public authority within the meaning of the Regulations. It is clear from the wording of the Regulations, read in light of the Guidance Notes on the Regulations, Directive 2003/4/EC on Public Access to Environmental Information, and the UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, that the range of public authorities subject to the Regulations is primarily defined by paragraphs (a) – (c) of the definition in regulation 3(1). Paragraphs (i) – (vii) simply clarify the range of bodies which may fall within paragraphs (a) – (c). A body of a type mentioned in paragraphs (i) – (vii) will not be a public authority unless, in addition, it falls within one of the categories in paragraphs (a) – (c). We do not believe that any other interpretation of the Regulations would be compatible with the constitutional status of regulations under the European Communities Act 1972. As the Bank clearly does not fall within any of these categories, it is not a public authority for these purposes. As such, the Bank is not subject to the Regulations.

The letter continued:

However, without prejudice to our conclusions on the definition of public authority and the scope of the Regulations, we have reviewed the categories of information requested in your letters in light of the Regulations. Even adopting a very wide interpretation of the scope of environmental information as defined in regulation 3(1), we do not believe that the vast majority of the information which you have requested would constitute environmental information. The mere fact that an activity, transaction or document is in some way connected with one of the elements mentioned in the definition of environmental information, or might potentially have a tangential impact on one of those elements, is not enough to make all information connected with that activity, transaction or document environmental information. In our view, some reasonable proximity is required between the activity, transaction or document and the relevant element; any other conclusion would make this definition so wide as to be meaningless. The majority of the information requested in your letter of 8 February is purely commercial in nature, and does not include any environmental information. The only information which arguably might constitute environmental information is certain environmental impact assessments, risk reports and other assessments which the Bank holds in respect of properties which it occupies and also in respect of properties for which it has loaned money and/or taken security.

Ms White continued:

The majority of the information in your letter of 12 February also is not environmental information but rather commercial and administrative information about transactions and activities which are at most tangentially connected to elements in the definition of environmental information.

In respect of the environmental impact assessments, risk reports and other assessments mentioned above, even if the Bank were subject to the Regulations, it would not be appropriate to release these documents. This is on the basis that they contain information whose disclosure would adversely affect (i) the confidentiality of personal information relating to natural persons who have not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law (Reg. 8(a)(i)); (ii) the interests of persons who voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied information to the Bank (Reg. 8(a)(ii)); and (iii) commercial or industrial confidentiality which is provided for under the equitable law of confidence and laws on banking secrecy to protect the legitimate economic interests of the Bank and its customers (Reg.9(1 )(c)).

Further, in so far as the information requested relates to all properties over which the Bank or its subsidiaries have taken any charge, it refers to a very large class of information. We believe that a request in these terms would be subject to refusal on the basis of regulation 9(2)(i) as being manifestly unreasonable having regard to the volume or range of information sought. Further, having regard to the foregoing exemptions and to the importance of confidentiality in banking relationships, we do not believe that the public interest served by the disclosure of this information would be greater than the public interest served by its non-disclosure. On the basis that, as noted above, the Bank does not hold any environmental information relating to carbon emissions, Regulation 10(1)(c) would not be relevant.

However, our views on these latter points are without prejudice to our conclusion above that the Bank is not a public authority and as such is not subject to the Regulations.

As is my right under the Regulations I then sought an internal review. I wrote in relation to the specific request outlined above:

Dear Ms White,

“We have concluded that the Bank is not a public authority within the meaning of the Regulations.”

Respectfully, I submit that this is not the case. I therefore seek an internal review to a more senior member of staff to review your decision in relation to both of my requests.

I again wish to re-iterate the legislation in this regard.

Anglo Irish Bank is a public body according to Section 3 (1) of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No 133/2007). In addition, according to S.I. 320/2009, Anglo Irish Bank is a public body for the purposes of the Ethics in Public Office (Prescribed public bodies, designated directorships of public bodies and designated positions in public bodies)(Amendment) Regulations 2009. I submit that the Bank cannot claim to be a public body for the purposes of one Act related to ethics, and not a public body for the purposes of these Regulations.

Let me further clarify both the Statutory Instrument and the Directive to more clearly demonstrate the position.

SI No 133/2007 states (my exerpts):

“public authority” means, subject to sub-article (2)—

a) government or other public administration, including public advisory
bodies, at national, regional or local level,

and includes—

(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,

Without reference to other sections of the SI, it is clear from the above section that Anglo Irish Bank is a public authority. Anglo Irish Bank was nationalised in January 2009. This nationalisation took place through the Anglo Irish Bank Corporation Act 2009. Section 5 (1) of the Act states:

On the commencement of this Act, all the shares in Anglo Irish Bank are transferred to the Minister.

There can be absolutely no doubt that Anglo Irish Bank is a public body for the purposes of the Statutory Instrument. The Minister for Finance is the sole shareholder of the bank. As outlined above this means that the Bank is a public authority for the purposes of the Directive. The Bank is therefore obliged to follow through on my request and make a decision on that request.

SI No 133/2007 aside, the European Regulations (Article 2 (2)) state that ‘Public authority’ shall mean:

(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 (a) or (b).

The Bank clearly falls under the above categories. In addition, the SI further clarifies this position by specifically referring to shares held by a Minister of the Government.

I also refer here to the UK Information Commissioner guide in relation to property requests:

“Overall, we consider that the majority of the information contained in property records held by local authorities is likely to be environmental as defined in the EIR.”

I would be of the opinion that all environmental impact statements, risk reports and other assessments which the Bank holds in respect of properties which it occupies and also in respect of properties for which it has loaned money and/or taken security, would be environmental information.

In addition, any claim under Regulation 9(2)(i) (that my request would be manifestly unreasonable given volume), I believe to be without merit. The Bank uses databases on which all of the requested information is held. The writing of a query or the dumping of such data would be a simple and effective process for release. The Bank, like many public authorities, uses databases and documentation management systems – this allows for the easy release of information.

I look forward to hearing from the Bank in the time period prescribed for internal reviews.

Kind regards

Gavin Sheridan

The Bank replied to my internal review, again saying that they agreed with the original decision. Original letter here.

I disagree with the internal review, and as a result, I have submitted an appeal to the Office of the Commissioner for Environmental Information.

I now await their decision. I will post about the other request I sent to Anglo in a future post.