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Mr & Mrs X and National Asset Management Agency (FOI Act 2014)

Case Number: 160078

Whether NAMA was justified in refusing access to additional records relating to the sale and purchase of Kilcooley Abbey Estate

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

In late 2013, the applicants made an offer to buy Kilcooley Abbey Estate in Thurles, Co. Tipperary, which at the time was held in receivership. The offer was unsuccessful and the property was sold instead to another buyer. Also in 2013, Coillte sold its leasehold interest in certain forest lands at the Estate to another buyer. In a request dated 22 June 2015, the applicants sought access to 12 categories of records relating to the sale and purchase of Kilcooley Abbey Estate. NAMA granted access to certain records relating to complaints made to NAMA by the applicants and queries made by Deputy Pearse Doherty TD in relation to the sale, but refused access to the remainder of the request on various grounds, including Schedule 1, Part 1(x)(iii) of the Act. On 22 February 2016, the applicants applied to this Office for a review of NAMA's decision.

With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by NAMA and the applicants, including the submissions that were belatedly made by the applicants on 6 September 2016. I have also examined the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

Following the acceptance of the application for review in this case, NAMA identified additional records relevant to two parts of the applicants' request. NAMA decided to grant access to 12 of the newly identified records relating to part 4 of the applicants' request, consisting of 37 pages of documents, but access to the remainder of the newly identified records was refused on the basis of Schedule 1, Part 1(x)(iii) of the FOI Act. This review is concerned solely with the question of whether NAMA was justified in refusing access to any additional records relating to the sale and purchase of Kilcooley Abbey Estate. For the sake of clarity, I note that in their most recent submissions, the applicants referred to a right to have personal information about themselves amended, but this review does not involve an application for amendment under section 10 of the FOI Act. I also note that, while the applicants have referred to a "Leaders Questions Briefing Pack" dated 15 July 2015, records which post-date the original request do not form part of this review.

Preliminary Matters

Before setting out my findings, there are some preliminary points I wish to make.

The first point to note is that section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that an applicant's motivation cannot be considered except insofar as it might be relevant to the consideration of public interest provisions.

A related point to make is that the remit of this Office does not extend to examining the manner in which a public body performs its functions generally, or to investigating complaints against a public body. This review, conducted pursuant to section 22 of the FOI Act, is confined to reviewing the decision of NAMA to refuse access to the records sought. Thus, while the applicants have argued the release of information is warranted in this case under the FOI Act and Article 10 of the Human Rights Act because of such factors as perceived irregularities in relation to the sale of Kilcooley Abbey Estate, what the applicants regard as misleading information provided by NAMA to the Minister of Finance on the matter, and the absence of relevant information in the Land Registry, the propriety or otherwise of NAMA's actions in relation to the sale or subsequent related events is not a matter that I can take into consideration in carrying out this review.

I should also point out that, while I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that the extent to which I can describe the contents of the records is limited. However, I am mindful of the burden of proof under section 22(12)(b) of the Act, which provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

In addition, I note that, during the review, the applicants were notified by this Office of NAMA's revised position in relation to certain records sought. In response, the applicants stated that they required a "summary schedule" of the records to which access had been refused in order to make a case for the release of the records concerned. I note that NAMA had provided a detailed schedule to this Office for the purposes of the review. When contacted by the applicants, however, NAMA refused to provide them with a schedule, stating that "due to the confidential nature of the information contained therein, NAMA is not in a position to list the records individually without disclosing information which it considers to be outside the scope of or exempt from release under FOI". As this Office explained to the applicants, the FOI Act does not require public bodies to provide a schedule, though it is regarded as good practice. I note, moreover, that it would not be practicable to list the records individually in any meaningful manner without violating section 25(3) of the FOI Act. However, the categories detailed in the applicants' request provided a useful reference point for addressing the relevant issues. NAMA's original decision addressed each category of the applicants' detailed request, and the applicants were able to make detailed submissions following the acceptance of their application for review and again more recently on 6 September 2016. I am satisfied that the applicants have been adequately informed of the relevant issues arising for consideration in this case.

Lastly, I should draw attention to section 18 of the FOI Act, which provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

According to the schedules and records made available to this Office for the purposes of the review, NAMA has refused access to 916 pages of documents that are relevant to the applicants' request, though I note that this includes many duplicate records. The majority of the records have been refused on the basis that Schedule 1, Part 1(x)(iii) applies. NAMA accepts that certain records relevant to parts 5 and 8 of the applicants' request (page numbers 569-575; 768-769; 770-778; 871-883; 884-910; 911; 912-938; 939; 940-953) fall within the scope of the Act, but it is NAMA's position that these records are exempt under section 41(1)(a), section 35(1)(b), and section 37 of the Act. In addition, NAMA claims that section 36(1)(b) of the Act also applies to one of the records concerned (page number 770-778), because it contains commercially sensitive information relating to a debtor.

Schedule 1, Part 1(x)(iii)
The vast majority of relevant bodes are deemed to be public bodies for the purposes of the Act by virtue of their inclusion in the categories set out in section 6 of the Act. Section 6(2) states that an entity specified in Part 1 of Schedule 1 shall, subject to the provisions of that Part 1, be a public body for the purposes of the Act. Part 1(x) sets out a number of instances where certain records are effectively placed outside of FOI. Part 1(x)(iii) of Schedule 1 states that section 6 does not include a reference to NAMA and certain other agencies, 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 any of these bodies". In other words, the Oireachtas has determined that the FOI Act does not apply to NAMA in relation to the records it holds which concern purchasers or potential purchasers of any asset or loan or of any other asset securing loans held or managed by NAMA.

Based on my examination of the records concerned, I accept that they concern the purchaser and/or other potential purchasers of Kilcooley Abbey Estate, which was an asset securing a loan held or managed by NAMA. Some 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. I am therefore satisfied that Schedule 1, Part 1(x)(iii) applies as claimed.

I note that part 4 of the applicants' request was for all information and correspondence relating to the complaints they had made to NAMA in August 2013 and all information and correspondence relating to the subsequent investigation and findings into that complaint. The applicants consider that any records relevant to part 4 of their request should be released since the information relates to them. Arguably, as the applicants were potential purchasers of Kilcooley Abbey Estate, even records relating to the applicants alone could be considered as falling within the ambit of Schedule 1, Part 1(x)(iii). NAMA did not adopt this approach to Schedule 1, Part 1(x)(iii) and instead granted access to any records relating to the applicants' complaints that did not also disclose information concerning the purchaser or other potential purchasers of the Estate. However, the records that were withheld in relation to part 4 of the applicants' request refer to the complaints in the context of discussing the wider sale process and, most notably, the reasons why the successful offer was the preferred offer. In other words, in these records, information about the applicants is intertwined with information about the purchaser and other potential purchasers and therefore Schedule 1, Part 1(x)(iii) applies.

Section 41(1)(a)
Section 41(1)(a) of the FOI Act is a mandatory exemption provision that applies where the disclosure of a record is prohibited by an enactment not specified in the Third Schedule to the FOI Act. Section 41(1)(a) is not itself subject to a public interest override. NAMA's claim for exemption under section 41(1)(a) is based on section 202 and also section 99 of the National Asset Management Agency Act 2009 ("the NAMA Act"). Section 202 of the NAMA Act states that, except as otherwise provided or authorised by the section or another enactment, a person shall not, unless authorised by NAMA, and NAMA group entity or the NTMA or authorised or obliged by law to do so, disclose confidential information as defined in subsection (1) of that provision.

Section 202(1) defines "confidential information" to mean-
"(a) information relating to the commercial or business interests of a participating institution or of a person who is or has been in a relationship with a participating institution,
(b) information that is subject at law or in equity to a duty of confidentiality,
(c) information that, if it were contained in a document, would have the result that a person could not be compelled to disclose the document in evidence,
(d) information the disclosure of which would tend to place NAMA, a NAMA group entity or the NTMA at a commercial disadvantage, or
(e) information about proposals of a commercial nature and tenders submitted to NAMA, a NAMA group entity or the NTMA."

Section 99 of the NAMA Act imposes on NAMA all of the obligations owed by the participating institution to the debtor concerned, including the duty of confidentiality. Section 99(1) provides, in pertinent part, that after acquiring a bank asset, NAMA is bound by all of the obligations of the participating institution from which the bank asset was acquired in relation to the debtor concerned and any guarantor, surety or other person concerned. Section 99(2) specifies that the obligations referred to in subsection (1) include a reference to the obligations derived from the bank asset and arising under any law or in equity or by way of contract.

The records which have been withheld under section 41(1)(a) of the Act relate to the person who had owned Kilcooley Abbey Estate. This person was the borrower whose loan on the Estate had been acquired by NAMA, i.e. a debtor of NAMA. As the Commissioner noted in Case 140153, Mr X and the Department of Finance (27 November 2015), available at www.oic.ie, a common law duty of confidence generally exists in relation to the banking information of individual borrowers (see, e.g., Walsh v. National Irish Bank Limited [2008] 2 ILRM 56). I accept that information relating to the borrower in the context of the sale of the asset securing the mortgage qualifies as confidential information within the meaning of section 202(1)(a) and (b) of the NAMA Act. I accept in particular that the borrower is owed a duty of confidence by NAMA and note that the FOI Act does not authorise the release of information where disclosure would constitute a breach of a duty of confidence provided for by law (section 35(1)(b) of the FOI Act refers). The applicants suggested in their recent submissions that NAMA has been selective in its adherence to section 202 of the NAMA Act, but the example given relates to potential purchasers of a loan portfolio, not a debtor. In any event, this Office does not have the authority under the FOI Act to require NAMA to disregard its duty of confidence to the debtor concerned in this case. As Macken J emphasised in the case of Rotunda Hospital v The Information Commissioner[2011] 1 I.R. 729, [2011] IESC 26, "there is simply no statutory 'right of access' to any records covered by Part III [now Part 4] of the Act". Even if disclosure could arguably be "authorised" for the purposes of section 202 of the NAMA Act, I accept that NAMA is bound by a duty of confidence under section 99 of the NAMA Act. Accordingly, I am satisfied that section 41(1)(a) of the FOI Act applies as claimed. In the circumstances, I do not consider it necessary to address further the additional claims for exemption made by NAMA in relation to the records concerned.

Section 15(1)(a)
In their submissions dated 27 April 2016, the applicants argued that not all relevant information and records had been released to them, particularly in relation to parts 4 and 6 of their request but also in relation to such matters as "when did NAMA become aware of the sale of the land and forestry [at Kilcooley Abbey Estate] and who advised NAMA". As explained above, however, NAMA holds a large number of records relevant to the applicants' request, including records relating to their complaints, to which access has been refused. In relation to the applicants' request for certain information, such as when NAMA became aware the land and forestry at Kilcooley Abbey Estate, I note that the FOI Act does not confer a general right of access to information; rather, where applicable, it confers a right of access to records held by an FOI body that contain the information sought.

Section 15(1)(a) provides that access to a record may be refused if the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In cases such as this one, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records.

In its submissions, NAMA described its records management practices and the steps taken to search for relevant records. The applicants have been informed of these details, which need not be repeated here. Having regard to NAMA's submissions and the contents of the records forwarded to this Office for the review, I am satisfied that NAMA has taken all reasonable steps to search for the relevant records that are within its possession.

I note, however, that a reference to records held by an FOI body includes a reference to records under the control of that body. Section 11(9) of the Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the FOI Act to be held by the FOI body. A service provider is defined at section 2 of the Act as a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services.

In or about January 2013, Kilcooley Abbey Estate was placed in the receivership of Bannon Property Consultants and Chartered Valuation Surveyors (Bannon). The applicants argued that Bannon and the selling agents in the matter, Colliers International (Colliers), were acting on behalf of NAMA in relation to the Estate and that they qualify as service providers within the meaning of section 11(9) of the Act. In their view, relevant records in the possession of these companies are effectively held by NAMA or otherwise within its control. They argued that such records would include records relating to Coillte's sale of the land and forestry.

In its submissions, NAMA explained that it acquired loans from five participating institutions under the National Asset Management Agency Act 2009 ("the NAMA Act"), but that it is not the owner or manager of the properties securing the loans. NAMA described its role as being, like a bank, that of a secured lender. NAMA stated:
"Properties securing NAMA's loans are managed by their existing owners or, in the case of enforcement, on their behalf by duly appointed insolvency practitioners, that is, a Receiver or Administrator. Insolvency practitioners are appointed as agents of the borrower not the lender and in law step into the shoes of the borrower. The ongoing management including all letting and sale of properties that secure NAMA loans is, accordingly, carried out by these parties, that is, the original owners or, in the case of enforcement, the appointed insolvency practitioner, not by NAMA. . . .
As a secured lender, NAMA, like any bank, takes a very close interest in the efficient management and sale of properties securing its loans so as to ensure maximum loan repayment. In this respect, vendors of a NAMA secured property are required to comply with NAMA Board policy on the open marketing of sales through suitably qualified selling agents. However, for the avoidance of doubt, NAMA has no role whatsoever in the management of subsequent sales processes, including engagement between the vendor/appointed selling agent with interested parties, and all transactions are ultimately a private law contract between the two parties, that is the vendor and purchaser. NAMA's involvement is limited to consenting (as lender) to an application by a borrower to sell a property on the basis of what the borrower and selling agent consider to be the highest executable bid. Any power being exercised by NAMA in such processes is a contractual power arising out of its right as a lender to consent to the sale of the property. This right arises out of the mortgage."

NAMA also said that, as a secured lender, it had no engagement with any contiguous land owners or with Coillte in relation to Coillte's leasehold over certain lands comprising part of Kilcooley Abbey. It added: "NAMA holds no records relating to Coillte's leasehold as NAMA did not own or manage Kilcooley Abbey and had no role whatsoever in relation to matters such as leaseholds held by third parties."

When notified of NAMA's position on the matter, the applicants responded by suggesting that NAMA has misrepresented its status and position in relation to Kilcooley Abbey Estate. In their recent submissions, they emphasised that NAMA is not like a bank, because "[i]ts powers are far reaching and exceed those of any bank and financial institution". They also challenged the description of Bannon as insolvency practitioners. They stated that, while Bannon may act as a 'fixed charge' receiver, "[a] fixed charge receiver is not to be confused with the receivership or administration functions carried out by insolvency practitioners". According to the applicants, "[t]he fixed charge refers to a single asset enforcement such as a mortgage over a property".

According to its website, Bannon provides insolvency and fixed charge receivership services. It is my understanding that a fixed charge receiver is one that is appointed over a fixed asset such as property, rather than a business. In their submissions, the applicants conceded that, when a mortgagor (the borrower) defaults on a loan on a property, the mortgagee (lender) can appoint a fixed charge receiver to sell the property. The applicants further conceded that, "[w]hen the mortgagee (lender) appoints a receiver they become agent for the mortgagor [(borrower)] and step into the shoes of the [borrower]". They stated:
"Once the mortgagee (lender) has exercised its power and appointed the receiver, it has no control over the subsequent actions of the receiver. In particular the mortgagee (lender) must not instruct or advise the receiver and, vice versa, the receiver is not to seek instructions or advise [sic] from the lender. To maintain this relationship between lender and receiver, the receiver must not be in a position where they appear to be subject to the control of the lender. If this should happen, the protections conferred on the lender by the receiver acting as agent of the borrower would be lost."

Nevertheless, the applicants claim that the situation relating to the sale of Kilcooley Abbey Estate is distinguishable from the above, because, according to the applicants, the owner went into liquidation in June 2012. They assert: "Once in liquidation [the owner's] title to the property (Kilcooley Abbey Estate was extinguished and the responsibility and ownership of the property then fell to Nama who held a floating charge over his dept [sic]. As Bannon were not appointed as fixed charge receiver to Kilcooley Abbey Estate until January 2013 they could not become agent for the mortgagor [(borrower)], [sic] Bannon became agent for the mortagee (lender) or in this case as NAMA acquired the loan, Bannon became agents for NAMA." According to the applicants, NAMA managed and remained in control of Bannon's decisions throughout the sale process and also managed and directed the actions of Colliers.

The applicants claims are contradictory and unpersuasive. They have presented no evidence to show that NAMA acquired ownership of Kilcooley Abbey Estate. Moreover, I do not believe that I would be revealing exempt information in violation of section 25(3) of the Act by noting that the contents of the records at issue do not support the applicants' claims of ownership and control by NAMA. I further note that section 149(1) of the NAMA Act specifies that "[a] statutory receiver shall be taken to be the agent of the chargor for all purposes".

I accept that in comparing itself to a bank, NAMA was merely drawing an analogy to explain its position in relation to the property, i.e. to explain that it was in the position of a secured lender. As a secured lender, it had certain rights in relation to the asset securing the loan and was therefore owed a duty of care by the receiver, but it was not in control of the receiver, nor was it in control of the selling agents. Moreover, I find no basis for concluding that any records that Bannon or Colliers may hold records relating to the sale and purchase of Kilcooley Abbey Estate relate to a service provided to NAMA under a "contract for services" within the meaning of the FOI Act. In the circumstances, I am satisfied that NAMA has taken all reasonable steps to search for the records it holds that are relevant to the applicants' request and that it is under no obligation to search for records that may be in the possession of Bannon or Colliers.

Decision

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

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