Case Number: 160253

Whether NAMA was justified in refusing to grant access to records concerning Project Eagle

Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant made an FOI request to NAMA on 10 March 2016 for "NAMA records showing how and when each of the nine companies asked to bid on Project Eagle were invited into the process by Lazard. All correspondence between NAMA and Lazard relating to Project Eagle.".

On 8 April 2016, NAMA refused to grant access to the requested records, on the basis that they were not subject to the FOI Act further to Schedule 1, Part 1(x)(iii) of the Act. The applicant sought an internal review on 10 May 2016. NAMA's internal review decision of 30 May 2016 found some of the requested records not to be covered by Schedule 1, Part 1(x)(iii). It partially released these records, and withheld the remainder of them on the basis that they contained information that was exempt under various provisions of the FOI Act, as well as some information that was covered by Schedule 1, Part 1(x)(iii). It affirmed the refusal to grant access to the rest of the records on the basis that they were entirely covered by Schedule 1, Part 1(x)(iii) of the FOI Act.

On 11 June 2016, the applicant sought a review by this Office of NAMA's decision. During the review, NAMA argued that all of the requested records are outside the scope of the FOI Act, further to the provisions of Schedule 1, Part 1(x)(iii) of the Act.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office, NAMA and the applicant; and to copies of the records at issue, which were provided to this Office for the purposes of this review. I have had regard also to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not NAMA has justified its refusal of access to the records. NAMA has identified the records by page number (137 in total) and accordingly I will refer to those page numbers (e.g. pages 1-12 make up one record, as do pages 26-28, etc.).

Findings

While the applicant says that there is a strong public interest in information about Project Eagle being made public, and that the exemptions applied by NAMA should fall because of the historic nature of the deal, these are not matters I can take into account in deciding if the records are subject to FOI in the first place.

Records Fully Covered By Schedule 1, Part 1(x)(iii)
Section 6 of the FOI Act sets out what "shall be a public body" for the purposes of the FOI Act. Schedule 1, Part 1(x)(iii) provides that section 6 does not include a reference to NAMA "insofar as it relates to records concerning purchasers or potential purchasers of any asset or loan or of any other asset securing loans held or managed by" NAMA.

NAMA says that the phrase "relates to records concerning purchasers or potential purchasers" covers "more ... than simply records concerning purchasers or potential purchasers". It says that the Oxford English Dictionary defines the term "concerning" as "about, regarding, on the subject of, relating to, relevant to, with regard to, as regards, to do with, with reference to, referring to, with respect to, respecting, as to, touching on, in the matter of, in connection with, re, apropos of." It says that, by reference to this definition, all of the records are captured by Schedule 1, Part 1(x)(iii).

It also says that the Commissioner's decision in Case No 160078 supports its interpretation (see http://www.oic.gov.ie/en/Decisions/Decisions-List/Mr-Mrs-X-and-National-Asset-Management-Agency-FOI-Act-2014-.html). In accepting that records in that case came within Schedule 1, Part 1(x)(iii), the Commissioner said that "[s]ome of the records deal with certain details of the sale process such as the tax treatment of the sale price, but such documents are nevertheless records "concerning" the purchaser of the asset."

In my view, the expression "relates to records concerning" should be given its ordinary meaning. The word "concerning", according to the concise Oxford English Dictionary, means "about". According to the Chamber dictionary, it means "regarding, or about". It seems to me that Schedule 1, Part 1(x)(iii) is directed at records regarding, or about, third parties that are not FOI bodies or state agencies. I do not accept NAMA's position that, essentially, Schedule 1, Part 1(x)(iii) operates to place outside of the Act records concerning NAMA's management of loans and assets generally from disclosure. If the Oireachtas had intended that NAMA would not be an FOI body in relation to these types of record, it would have included such a provision in Schedule 1, Part 1. Essentially, each record has to be examined in order to decide into which category it falls.

I am satisfied that the following pages, in their entirety, are records "concerning purchasers or potential purchasers of any asset or loan or of any other asset securing loans held or managed by" NAMA. They are about the purchaser's and potential purchasers' participation in the Project Eagle sales process. While some of them also refer to aspects of that process, I consider them to be records about or "concerning" the purchaser or potential purchasers of the Project Eagle loans nonetheless. By way of example, pages 42-46, which were partially released at internal review stage, are described on the schedule issued to the applicant at that time as a "NAMA process letter". They indeed refer to the process, but nonetheless comprise a letter addressed to a specific purchaser or potential purchaser. In the circumstances, I consider them to concern that purchaser or potential purchaser.

The records concerned are:

Pages 25; 26-28; 39-40; 41; 42-46; 47-48; 49; 50-51; 52; 53; 54-56; 58; 59-62; 63-64; 65-68; 69-73; 74-78; 79-83; 84-88; 89-90; 91-95; 96; 97-98; 104-109; 110-121; 122; 123-126; 127; and 129-130.

I consider the above records to be covered by Schedule 1, Part 1(x)(iii) of the FOI Act and, therefore, I find them not to be subject to the FOI Act. I affirm NAMA's refusal to grant access to these records.

Records Not Covered By Schedule 1, Part 1(x)(iii)

I consider the remaining records, listed below, to be about the Project Eagle sales process, not to be covered by Schedule 1, Part 1(x)(iii), and therefore subject to the Act.

However, some of the records also contain brief references to the purchaser or potential purchasers of the Project Eagle loans. I accept that those specific excerpts of the records, as indicated below with an asterix (*) and as further detailed on the attached schedule, are covered by Schedule 1, Part 1(x)(iii) and are not subject to the FOI Act.

The records concerned are:

Pages 1-12*; 13; 14-15; 16-18; 19-24*; 29-38*; 57; 99-103; 128; 131-133*; 134; and 135-137.

Records Subject to FOI - Whether Exempt

The applicant has expressed concern about the length of time it has taken for this review to conclude. He says that the delay, given the Commission of Inquiry into Project Eagle, has had a material effect in frustrating any chance of obtaining the records under FOI. I apologise to the applicant for the delay that has arisen, which resulted from the careful consideration that had to be given to the application of Schedule 1, Part(x)(iii). However, delay is not a factor I can take into account when considering whether records should be released under FOI.

NAMA has consistently claimed that Page Numbers 1-12; 14-15; 16-18; 128; 131-133; and 135-137 are not subject to the FOI Act. It has not considered whether the information in these records is exempt under any of the FOI Act's exemptions. I do not think it appropriate for me to consider directing release of those records in such circumstances. The most appropriate decision is, accordingly, to annul NAMA's refusal of access to them, and remit them for fresh consideration by it in line with the requirements of the FOI Act.

On the other hand, however, NAMA considered at internal review stage the content of those parts of Page Numbers 13; 19-24; 29-38; 57; 99-103; and 134 it did not then believe was covered by Schedule 1, Part 1(x)(iii). This Office invited NAMA to make submissions regarding the various provisions of the FOI Act it had applied to the information concerned. NAMA chose not to do so. It said it understood that, where the Commissioner rejected an FOI body's refusal to grant access to records on the basis that they were not subject to the FOI Act, the matter would be remitted to the body for fresh consideration. It suggested that I should do so in this case.

I am taking NAMA's comments as a reflection of the fact that it is relatively new to FOI. However, it is important to note that any decision taken by this Office in a particular case does not necessarily create a precedent. As is evident from my decision on pages 1-12 etc., NAMA's suggestion is, generally speaking, appropriate where an FOI body has not considered the application of the FOI exemptions to records it has argued are not subject to FOI in the first place. However, where a body has considered a record under the FOI Act and decides not to make a submission to this Office when invited to do so, it fails to meet the requirements of section 22(12)(b). Section 22(12)(b) provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. It is a matter of fact that NAMA has considered the contents of certain records under the FOI Act, notwithstanding that it subsequently changed its position on whether they are subject to the Act.

I have considered whether to direct release of such records in the circumstances. However, I have decided not to do so. While some records appear mainly to concern NAMA, at least one concerns a third party (that is, other than a purchaser or potential purchaser) and it is important that the third party's rights are given due consideration.

I consider that the most appropriate decision for me to make is to annul NAMA's refusal of all records I have found not to fall within Schedule 1, Part 1(x)(iii), and remit them for fresh consideration by it in line with the requirements of the FOI Act. NAMA should have regard to this Office's published Guidance Notes when deciding on the records concerned.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary NAMA's decision.

I affirm its refusal to grant access to Page Numbers: 25; 26-28; 39-40; 41; 42-46; 47-48; 49; 50-51; 52; 53; 54-56; 58; 59-62; 63-64; 65-68; 69-73; 74-78; 79-83; 84-88; 89-90; 91-95; 96; 97-98; 104-109; 110-121; 122; 123-126; 127; and 129-130, which I find to be covered by Schedule 1, Part(x)(iii).

I annul its decision to refuse to grant access to Page Numbers 1-12*; 13; 14-15; 16-18; 19-24*; 29-38*; 57; 99-103; 128; 131-133*; 134; and 135-137. I find these records to be subject to the FOI Act except for those details in the records marked above with an asterix (*) and as specified in the attached Appendix, and in the circumstances of this case, a remittal of these records is appropriate. I direct NAMA to undertake a fresh decision making process on these records (to avoid any doubt on the matter, except for those details specified in the attached Appendix), and to inform the applicant of the outcome in accordance with section 13 of the FOI Act. Furthermore, I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by NAMA to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator

Appendix To Decision on Case Number 160253