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Case Number: 150247

Whether NAMA was justified in its decision to refuse access to information sought relating to details of communications and negotiations in connection with the development of and the acquisition or proposed acquisition of lands adjacent to, the Square Shopping Centre, Tallaght, Co. Dublin

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner

Background

In an FOI request of 27 April 2015, the applicant sought access to information relating to the development of The Square, Tallaght and related matters. In its decision of 9 June 2015, NAMA granted access to part or all of some records and refused access to all or part of other records on the basis that various exemptions applied. The applicant made an internal review request on 2 July 2015. In its internal review decision of 24 July 2015, NAMA provided a schedule of additional records which had been identified, some of which were released. The original decision was affirmed in relation to the other records. The applicant sought a review of NAMA's decision on 18 August 2015.

The request was for "records and documentation relating to:

1. All meetings, consultations, exchanges and other forms of communication between National Asset Management Agency (NAMA) and/or National Treasury Management Agency (NTMA) and South Dublin County Council at which proposals regarding the development at The Square, Tallaght were discussed, involving [named staff members ]or others acting on behalf of NAMA and/or NTMA.

2. All meeting, consultations, exchanges and other forms of communication between NAMA and/or the NTMA and South Dublin County Council relating specifically to the Planning Application File Reference SD13A-0192, Extension to The Square, Tallaght, to include but not limited to meetings held from 26 June 2013 to date involving [named staff members ] or others acting on behalf of NAMA and/or NTMA.

3. All meetings, consultations, exchanges and other forms of communications between NAMA and/or NTMA and [a named company], and or its servants and agents, including [named agent] relating to Planning Application File Reference SD13A - 0192, Extension to the Square Tallaght, to include, but not limited to meetings held from 26 June 2013 to date involving [named staff members] or others acting on behalf of NAMA and/or NTMA.

4. Any approach, proposal or offer or negotiations in connection with, and any agreement or heads of agreement reached between South Dublin County Council and NAMA and/or NTMA in relation to NAMA's/NTMA's acquisition or proposed acquisition of lands adjacent to The Square Shopping Centre from South Dublin County Council (the terms of which were notified to the Council of South Dublin County Council by [SDCC staff member], at the Council meeting held on 14 October 2013, minutes of which are attached for ease of reference)."

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of NAMA, to the content of the records, to legal advice received and to the provisions of the FOI Acts. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

The review relates to whether the decision of NAMA to refuse access to the withheld information in the records was justified. Following an initial examination of the withheld information, the Investigator established that parts of some records were withheld on the basis that section 37(1) applied only, and that the withheld information was mobile or direct dial phone numbers. She contacted the applicant and advised them of this. The applicant agreed that redactions based on section 37(1) which were clearly identifiable as direct dial/mobile phone numbers could be excluded from the scope of the review. During the course of the review, NAMA reviewed its position and decided to grant access to some additional records. For the avoidance of doubt, any records or parts of records which have been released prior to, or during the course of the review, are not in the scope of this review.

Therefore, the records, or parts thereof, remaining in scope of the review are:

Part 1: Records 2-3, 9-10
Part 2: Records 81-83
Part 3: Documents 1-390 and Emails 1-1996
Part 4: Records 1-39, 41-51, 63-65
Internal Review: Records 47-67, 72-81, 86-87, 107-109, 131-133, 140-141, 289, 301-302, 317-319, 330-331, 352-354, 359-360, 374-377, 380-386 (all linked to parts 1, 2 and 4 of the request)

Preliminary Matters

The FOI Act provides for a right of access to records held by an FOI body, subject to certain exemptions. The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Section 18
I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "a copy or part of any thing that falls within paragraph (a), (b), (c) or (d)" of the definition of a record. Section 18 of the FOI Act 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.

Section 22
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the body satisfies me that its decision was justified.

Section 25(3)
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the records or disclose in any detail particulars of the third parties interests is limited.

In this context, it should be noted that NAMA did not provide a schedule of the Part 3 records to the applicant, as in its view the information in the schedule would have revealed information which it claimed was exempt. However, I wish to confirm that NAMA did provide my Office with a schedule and copies of the relevant records.

Analysis and Findings

NAMA refused access to records or parts of records (as set out above) on the basis that various exemptions provided for in the FOI Act applied, including sections 15(1)(d), 29(1)(a), 30(1)(a), (b) and (c), 35(1)(b), 36(1)(b), 36(1)(c), 37(1), 40(1)(d), 41(1)(a) and (b), together with sections 99 and 202 of the NAMA Act, 2009. The volume of records to be considered, together with the number of exemptions claimed, presented challenges for the processing of this review. Therefore, consideration was given to invoking administrative options available to me, to discontinue the review. However, following receipt of legal advice and consideration of these options, it was decided that the most appropriate course of action in this case was to proceed with the review.

I consider it appropriate to deal with NAMA's claim that section 41 applies first as this is a mandatory exemption, for which there is no public interest test.

Section 41(1)(a) - Disclosure prohibited by an enactment
Section 41(1)(a) of the FOI Act is a mandatory 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 99 of the National Asset Management Agency Act 2009 ("the NAMA Act").

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 (i)the bank asset, (ii) 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.

Having considered the matter, including the consideration of legal advice received, I accept that the provisions of section 99 of the NAMA Act are such as to engage section 41(1)(a) of the FOI Act. The next question is the applicability of section 99 to the records for which it has been claimed. It seems to me that section 99 of the NAMA Act provides for NAMA to exercise the rights, powers and obligations of the participating institution from which the bank asset was acquired in relation to those entities set out in section 99(1)(a)(i)-(iv).

Part 3
In Part 3 of the request, the applicant sought access to:

"records relating to:- All meetings, consultations, exchanges and other forms of communications between NAMA and/or NTMA and [named company] (emphasis added), and or its servants and agents, including [named agent] to Planning Application File Reference SD13A - 0192, Extension to the Square Tallaght, to include, but not limited to meetings held from 26 June 2013 to date involving [named staff members] or others acting on behalf of NAMA and/or NTMA."

NAMA refused access to these records in its decisions, stating that the records sought "relate to debtors whose assets and loans are secured by NAMA". When the schedule of Part 3 records was provided to my Office, it showed that NAMA had identified approximately 2,400 pages of records as relevant to Part 3 of the request and claimed that a number of exemptions under the FOI Act applied to each of these records, including section 41(1)(a). Given the volume of records to be examined and the number of exemptions claimed, this Office considered how best to progress this part of the request. The Part 3 records were subsequently provided to my Office by NAMA. It was not until a submission on aspects of the review in July 2016 that NAMA referred to [named company] as a debtor of NAMA, but did not do so specifically in the context of justifying its claim that section 41(1)(a) applied. However, given the mandatory nature of section 41(1)(a) and the provisions of section 99 of the NAMA Act, the Investigator sought further submissions from NAMA as to the status of [named company]. In a submission received from NAMA in November 2016, it set out information on the status of [named company], on the basis of which the Investigator took the view that the company is a debtor of NAMA, such that section 99 of the NAMA Act and section 41(1)(a) apply. She informed the applicant of this view. I agree with it and I am satisfied that NAMA has shown that [named company] is a debtor of NAMA such that section 99 of the NAMA Act applies to it, and that section 41(1)(a) of the FOI Act applies. As [named company] is named specifically in Part 3 of the request, it follows that any records identified as relevant to this part of the request will be records to which section 99 and section 41(1)(a) apply. I find accordingly.

Prior to the identification of [named company] as a debtor of NAMA, the Investigator put it to NAMA that some records related to the planning process. NAMA reviewed its position and acknowledged that copies of the "planning" records would be on publicly available planning files. NAMA claimed that section 15(1)(d) of the FOI Act applied to allow it to refuse access to these records on the basis that the information is already in the public domain. In order to assist with progress of the review, NAMA agreed to provide a schedule of those records which it considered to be in the public domain; this was then provided to the applicant. All such records are attachments to communications between NAMA and the debtor. I must take account of the circumstances of the communications to which these records were attached i.e. as part of communications between NAMA and the debtor who was the applicant for planning permission. I must also take account of the mandatory nature of section 41(1)(a). I am satisfied that such communications, including the attachments to them, are prohibited from release by section 99 of the NAMA Act. I find, therefore, that section 41(1)(a) of the FOI Act applies.

Part 1 and 2 and relevant IR records.
NAMA has refused access to small amounts of information in Part 1- records 2-3 and 9-10, Part 2 - Records 81-83 and IR records 317-319, 330-331, 359-360, 380-386 on the basis that sections 41(1)(a), 35(1)(b), 36(1)(b) and 37(1) apply. NAMA's position was that the withheld information would, if released, reveal the identity of debtors of NAMA. In many instances it was not possible to determine from the information itself who exactly the parties to a particular communication were. During the review NAMA was asked to provide additional information on its debtors, their servants and agents, and to identify the names of individuals associated with each of these. Having received this information, I am satisfied that the withheld information is debtor information such that section 99 of the NAMA Act, and therefore section 41(1)(a) of the FOI Act applies and I find accordingly.

Part 4 Records
NAMA refused access to Part 4 records 1-39, 41-51, 63-65 and related IR records 47-67, 72-81, 86-87, 107-109, 131-133, 140-141, 289, 301-302, 352-354, 374-377.

Part 4 of the request sought access to records relating to:

"Any approach, proposal or offer or negotiations in connection with any agreement or heads of agreement reached between South Dublin County Council (SDCC) and NAMA and/or NTMA in relation to NAMA's acquisition or proposed acquisition of lands adjacent to The Square Shopping Centre from SDCC (the terms of which were notified to the Council of SDCC at the Council meeting of 14 October 2013)"

In a general way, the records can be described as correspondence and communications between NAMA and SDCC in relation to the sale of land by SDCC to NAMA, and related records. There is no indication in the records, and I have no reason to believe that SDCC is a "client" of NAMA such as to fall within section 99(1)(a)(i)-(iv). Neither have I been able to find any indication, in the records or elsewhere, that there is any loan or other financial arrangement, for which the land the subject of the sale is security, which has been taken over by NAMA. The amount of information in the records which I can identify as relating to entities whose loans have been taken over by NAMA is very limited. The Investigator put it to NAMA that it would be necessary for it to demonstrate how section 99 applies to the records in question in order to find that the claim for section 41(1)(a) to apply is justified. NAMA has not addressed this point in its submissions to date; it was also informed that there was no change in the Investigator's view on the matter. While it may be the case that small parts of these records do contain information to which section 41(1)(a) might apply, I am satisfied that NAMA has not provided justification for the application of section 41(1)(a) to the records identified as relevant to Part 4 (and related IR records) and I find accordingly.

This leads me to consider the other exemptions claimed by NAMA for these records.

Section 36(1)(b) and 36(1)(c) - Commercially Sensitive Information
NAMA also claimed that section 36(1)(b) and (c) applied to Part 4 records 1-39, 41-51 and 63-65 and IR records 47-67.

Section 36(1)(b) protects information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in the first part of this section is not the nature of the information but the nature of the harm which might be occasioned by its release. In order for the exemption to apply, it is necessary for the harm and the reasonableness of the expectation that the harm could arise from the release of the information under FOI to be identified. The standard of proof required in the second part of the sub-section is relatively low in the sense that the test is not whether prejudice is certain to materialise but whether it could do so.

Section 36(1)(c) protects information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it could do so. Having said that, I would expect that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and to explain how exactly the disclosure could prejudice the conduct or outcome of such negotiations.

In its submission, NAMA states that the records at issue contain financial and commercial information of NAMA debtors and debtor companies. It further states that it operates in a commercial setting and is statutorily obliged to fulfil certain commercial objectives, including achieving the best financial return for the State through the management and realisation of assets it acquired from various participating institutions. As regards negotiations, NAMA's position is that negotiation is an integral part of it achieving its objective and that it negotiates on a daily basis with debtors and third parties in this regard. It sets out the importance of protecting the negotiation process and the potential harm both to NAMA, debtors and other third parties if the information in these records were to be released.

Having considered the submissions of NAMA and examined the information at issue, I am satisfied that the release of the information could give rise to the harms identified and I find that section 36(1)(b) and/or 36(1)(c) apply to the withheld information.

Section 36(2) provides for the release of information to which section 36(1)(b)/36(1)(c) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.

Having found that section 36(1)(b) and/or 36(1)(c) apply to the information, section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request.

In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

Having considered the matter and examined the withheld information, I am satisfied that the public interest in openness and accountability and in the public knowing how NAMA carries out its functions is served to some extent by information already publicly available. I am also mindful of the particular position of NAMA, and its obligations under the NAMA Act 2009 and the fact that the records at issue contain information relating to parties other than NAMA and SDCC which are not FOI bodies. In the circumstances of this case, I find that, on balance, the public interest would not be better served by the release of the information, to which I have found section 36(1)(b) and/or 36(1)(c) applies.

Section 37 - Personal Information
NAMA refused access to Part 4 records 26-39 and some information in related IR records 72-81, 86-87, 107-109, 131-133, 140-141, 289, 301-302, 352-354, 374-377 on the basis that section 37 applied. Records 26 -39 have been found to be exempt above and so are not dealt with here.

Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. The definition also contains a list of 14 specific types of information including (ii) information relating to the financial affairs of the individual. Having examined the withheld information, which mainly comprises the names of individuals in the context of their involvement in the matters the subject of the records, and the submissions of NAMA, I agree that the information is personal information. I find that section 37(1) applies.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the withheld information.

I turn now to section 37(5) which also provides for exceptions to the section 37(1) exemption. I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.

Section 37(5)(a) - Public Interest
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the issue of the public interest, I have also had regard to the comments of the Supreme Court in the Rotunda case, cited above.

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act, although this alone would not be sufficient, in my view, to warrant the breach of an individual's right to privacy. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "the right to privacy"). It is also worth noting that the right to privacy has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. I find that, in the circumstances of this case, the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.

In summary, I find that section 37(1) applies and that none of the exceptions under section 37 apply to the information.

As I have found all of the withheld information relating to Part 4 to be exempt under section 36(1)(b), section 36(1)(c) or section 37, it is not necessary for me to deal with the application of the other exemptions claimed by NAMA.

Section 15(1)(a)
While this exemption was not claimed by NAMA, it is relevant as the applicant has raised concerns as to whether all relevant information has been identified. The applicant raised certain specific items in its internal review request which were responded to by NAMA in its internal review decision. On the matter of records relating to specified meetings between NAMA and SDCC, NAMA stated that these meetings were not minuted by NAMA and that NAMA does not hold any minutes created by SDCC, if such minutes were created. In a submission to this Office, the applicant raised concerns about aspects of NAMA's response in this regard and indicated that it was not satisfied that records relating to these meetings would not have been produced. It also referred to the extent of further documentation identified, some of which was released, at internal review.

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. My role in such cases is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable. My Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner [2002 No. 18 M.C.A.]( available on www.oic.ie)

NAMA provided information on its records management policy and the practices it says are in place. It also provided details of the searches it says were undertaken to identify information relevant to the request, including the criteria for such searches. The applicant has not provided me with details of any further records which it believes exist and fall within the scope of the request and which have not been identified by NAMA. Consequently, I have seen no evidence of further records which exist as opposed to those which the applicant believes ought to exist. It seems to me that reasonable steps have been taken by NAMA to search for the records. I am satisfied, on the basis of the information available to me, that further records do not exist or cannot be found after all reasonable steps have been taken to search for them. I find that refusal of the request is justified under section 15(1)(a) in relation to any further records which in the applicant's view should exist.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm NAMA's refusal of access to the withheld records but vary the basis for such refusal. I find that section 41(1)(a) applies to the withheld Part 3 records and the withheld information in Part 1 and Part 2 records and related Internal Review Records. I further find that section 36(1)(b) and/or 36(1)(c) applies to some withheld Part 4 records and related Internal Review records, and that section 37 applies to the remaining withheld Part 4 records. I find that section 15(1)(a) applies to any further records which the applicant believes ought to exist.

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.

Peter Tyndall
Information Commissioner