Case: 170316

Whether NAMA was justified in refusing access to information relating to debtors' interest rates and overheads on the ground that the records do not exist, under section 15(1)(a) of the FOI Act

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

On 13 April 2017, the applicant made an FOI request to NAMA in the form of a series of fourteen categories of information in relation to developers/debtors. The information requested included specific breakdowns of financial and other data as well as criteria applied in certain circumstances. On 12 May 2017, NAMA issued a decision, in which it granted access to some information and refused access to the remaining eight categories of information, under section 15(1)(a) of the FOI Act. On 18 May 2017, the applicant applied for an internal review in respect of the withheld information. Following discussion with NAMA, he subsequently agreed to submit a fresh FOI request in respect of five categories of information. NAMA then issued an internal review decision to the applicant by letter dated 12 June 2017, in which it affirmed its original decision on the remaining three categories of information, under section 15(1)(a). On 20 June 2017, the applicant applied to this Office for a review of the Department's decision.
In reviewing this case I have had regard to NAMA's decision on the matter; NAMA's communications with this Office; the applicant's communications with this Office; communications between the applicant and NAMA on the matter and the provisions of the FOI Act.

Scope of the Review

During this review, the applicant confirmed to the Investigator that his application for review to this Office relates to two categories of information: (5a) and (7). This review is therefore concerned with whether NAMA was justified in refusing access to this information under section 15(1)(a) of the FOI Act.
Preliminary Matters
Before considering the exemptions claimed, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on NAMA to satisfy me that its decision is justified.

Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds

The applicant seeks access to the following information:

(5a) "in percentage terms the interest charged on credit provided to NAMA developers/debtors in the years 2009 - 2017 i.e. the interest rates ranged from x% to y%, with loan periods in years ranging from x years to y years"; and

(7) " [a] breakdown [of] the overheads referenced in question six into categories deemed valid by NAMA i.e. what does the term overheads cover: electricity, rent etc?".

In relation to (5a), NAMA's internal review decision pointed the applicant to information on its website about the methodology used to compute interest income on loans and receivables for accounting purposes and gave general information about how interest on new credit advances is typically charged. However, it refused access to the specific information sought under section 15(1)(a), on the basis that it does not hold such records.

In relation to (7), NAMA's original decision stated that overheads typically fall into two categories, which it explained. However it refused access to the specific information sought under section 15(1)(a), on the basis that it does not hold such records.

FOI Act

NAMA is a partially included agency under Schedule 1 to the FOI Act. In this case, it does not appear to be NAMA's position that the records sought fall within paragraph (x) of Part 1 of Schedule 1, which puts records concerning certain investors, companies, purchasers of assets of loans, market counterparties, sellers of assets and other entities outside of FOI.

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.

The FOI Act does not require FOI bodies to create records if none exist. The only exception to this is a requirement to extract records or existing information held on electronic devices in certain circumstances. Section 17(4) of the FOI Act provides that where an FOI request relates to data contained in more than one record held on an electronic device, the FOI body shall take reasonable steps to search for and extract the records, using any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course. Therefore in these circumstances the FOI body would be expected to extract and create a 'new' record.

There is no corresponding requirement on an FOI body to extract relevant information from hard copy files in order to compile the information sought. This suggests to me that the Oireachtas did not intend that FOI bodies should be required to do so. Such an exercise would involve creating a new record, which, as noted above, is not required under the FOI Act.

Parties' submissions

Regarding (5a), the applicant submits that if NAMA is able to provide information about the total credit extended to debtors, it should be able to provide the interest rates and at the very least the median interest rate charged to debtors/receivers in each year. He says that NAMA could obtain a representative sample from the memoranda of understanding between NAMA and the debtors, or from the credit reports on each debtor which NAMA prepares for its board.

Regarding (7), the applicant submits that if NAMA is able to say what amount of credit related to current expenditure, which included funds advanced for working capital and overheads, it must be possible to provide a list, even if it is a sample list, of the types of overhead included in that expenditure. Once more, he says that NAMA could reference memoranda of understanding and credit reports.

During this review, the Investigator put the applicant's submissions to NAMA and drew its attention to the requirements of section 17(4) of the FOI Act.

In relation to (5a), NAMA says that information on interest rates applying to its portfolio of approximately 24,000 loans is held in a database and in a range of documents, including legacy loan documentation and facility letters. It says that given its staffing resources, it is not feasible to go through the process of extracting the data and operating on it so as to derive median rates. It says that the information sought is not currently readily available because NAMA does not require it for business purposes. NAMA says that contrary to the applicant's submission, only a minority of debtors have memoranda of understanding. Moreover, it says that to the limited extent that debtor credit reviews are submitted to the board, they do not typically include information on legacy credit terms.

In relation to (7), NAMA says that this type of information is structured primarily by reference to some 800 debtor connections (over 5,000 borrowing entities) and is embedded across multiple text documents rather than in a database. It says that creating a record containing this information would require the review, segregation and extraction of information and compilation into a new record.

Finding

Section 11 of the FOI Act provides for a right of access to records held by FOI bodies. Requests for information or for answers to questions posed are not valid requests, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. It is important to note that under section 12 of the FOI Act, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. Therefore the applicant's request must be taken as a request for access to records that would provide him with the information that he seeks.

I consider that to address the applicant's request would require the processing of information to create records that did not previously exist. I accept NAMA's position that it does not hold discrete records containing the information sought. I consider that even if it were feasible to collate data from a sample, as suggested by the applicant, this would involve the creation of a new record. To the extent that NAMA holds certain data electronically, it seems to me that retrieving the information which the applicant seeks would require NAMA to go beyond the taking of "reasonable steps". I therefore do not believe that section 17(4) applies in the circumstances.

I find that NAMA is justified in refusing access to the information sought on the basis that the records do not exist, under section 15(1)(a).

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm NAMA's decision, under section 15(1)(a) 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