The Irish Commissioner for Environmental Information, Emily O’Reilly, on 30 September 2011 ruled that Anglo Irish Bank is subject to requests from the public relating to the environment, on the basis that for environmental information purposes the Bank, which was nationalised in January 2009, is a public authority. The Bank had, under the European Communities (Access to Information on the Environment) Regulations 2007, refused requests relating to matters such as travel expenses and properties on the basis that it is a company, as indeed it is. The Bank argued that it is not a public body, even though all its shares are held by the Minister of Finance. The Commissioner, Case CEI/10/0007, disagreed. The Bank can appeal to the High Court.
A company in which all the shares are directly held by a Minister of the Government is not amongst the entities specifically listed in EU Directive 2003/4/EC or the Aarhus Convention, but is specifically listed in the Irish Regulations, on their plain and ordinary reading. The Commissioner ruled that the meaning of the Irish Regulations is clear and unambiguous, without any further conditions applying as to public administrative functions and responsibilities. Nor did she regard this as being at odds with the Directive. On the contrary she said that “it is very arguable that the Directive, in particular Recitals (11) and (24), encourages and enables Member States to take an expansive approach” to what constitutes a “public authority”. (The same can be said of the Aarhus Convention, in particular Article 2.2.) She did not accept that the definition of “public authority” in the Irish Regulations should be interpreted restrictively where a Member State has apparently chosen to take an expansive approach to the definition.
In the UK under FoIA and the Environmental Information Regulations 2004, and their Scottish equivalents, a company which has no members other than a Minister of the Crown (including a Northern Ireland Minister) is a public authority. No doubt a UK Court would agree that this is not at odds with the Directive, either as being in accordance with it or as being a legitimate expansion of it (and, in the case of the Environmental Information Regulations, made under the European Communities Act 1972, intra vires).