NAMA denies status as public body

Further to my request to Anglo Irish Bank under the European Communities (Access to Information on the Environment) Regulations, I simultaneously requested information from the National Asset Management Agency (NAMA).

I specifically sought the information under SI133/2007, the transposition of the 2003 Directive into Irish Law.

In an email dated February 3, 2010, to NAMA, I sought:

1) A breakdown of all assets, loans and properties due to be
transferred to the Agency. This should include the value placed on the
asset and by whom. It should include the addresses of all assets and
properties.

2) A breakdown of all properties and property loans currently owned or
controlled by the Agency.

3) Minutes of board meetings relating to the transfer of assets and
properties to the Agency. The date range for this request is January
2009 to January 2010, inclusive.

In an email dated February 16, 2010, I received an email from NAMA stating:

Upon due consideration of your request and the AIE Regulations, we do
not propose to accede to your request as we do not consider that the
National Asset Management Agency is a “public authority” within the
definition set out in the AIE Regulations.

As is my right under the Regulations I then sought an internal review of that decision. I argued:

You state that you do not consider NAMA to be a “public authority” within the AIE regulations. However under the Regulations a public body is defined as:

(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 paragraph (a) or (b),

In addition:

(vi) a board or other body (but not including a company under the Com-
panies Acts) established by or under statute,
(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,
(III) by a board or other body within the meaning of paragraph (vi), or
(IV) by a company to which subparagraph (I) or (II) applies, having
public administrative functions and responsibilities, and pos-
sessing environmental information;

The NAMA board consists of 9 members, appointed by the Minister for Finance. The chief executives of NAMA and the NTMA (ex-officio) are appointed by the Minister. This alone would clearly indicate that NAMA is a public body. (vi) would appear to be particularly relevant.

On March 19, I received the results of the internal review. NAMA stated:

I have conferred on this issue with the Head of Legal and Tax within the National Asset Management Agency. Under her advice our response to this issue still remains the same. I trust this answers your query.

I disagreed with the decision and have now appealed the matter to the Office of the Commissioner for Environmental Information, which cost €150, kindly donated by readers. It strikes me as odd, to say the least, that the body established by the Government to handle property loans worth an estimated €54 billion, does not consider itself to be a public body for the purposes of the European directive in question. NAMA and its parent body, the NTMA, also do not fall under the FOI Act. The entire process is opaque, and the public has absolutely no recourse to information besides through this European Directive.

It is worth noting three critical points:

1) The definition of a public body within the Regulations is extremely broad. NAMA clearly is (a) government or other public administration, including public advisory bodies, at national, regional or local level. But NAMA felt they did not full under this definition.

2) The definition of environmental information under the Regulations is also extremely broad. Lands owned or controlled by NAMA (as a public body), is clearly environmental information. A cursory look at the application of the Directive in other jurisdictions would clearly show this to be the case.

3) If NAMA is deemed by the OCEI to be a public body, then any information related to the environment would fall within a request for information. NAMA may argue that such information is ‘commercially sensitive’ under the Regulations, but as this is entirely public money at issue, one must ask to whom is it commercially sensitive.

If the OCEI were to decide that NAMA is a public body alone (which was the main reason for my initial request), it would open up the body to much greater scrutiny. I await their decision with interest.