Would you consider NAMA a public authority? How well can you argue?!

edanto

A freelance journalist working with www.thestory.ie has been trying to use the European Environmental Information Regulations to prise open NAMA - his case is basically that NAMA should be considered a public authority.

The adjudicating body, the Office of the Commissioner for Environmental Information, seems to have decided that NAMA is not a public authority. They need help from you in drafting a reply.

The first article about this was on the website in April (http://thestory.ie/2010/04/22/nama-submission/).

If you want to read more, here's the latest post -
http://thestory.ie/2010/07/05/nama-status-2/

There was an earlier post - http://thestory.ie/2010/06/30/nama-status/ -
which includes a scanned copy of the letter that came back from OCEI, giving the reasons for their decision.

Perhaps, like me, you weren't at all surprised to hear the news story the other day that NAMA is likely to cost us 'several hundred million euro' instead of turning the profit of several billion that was expected. Perhaps, like me, you are anticipating the next news story that tells us that in actual fact, due to unforseeable circumstances, NAMA will actually cost us a few billion euro, and so on and so on.

At the same time, NAMA could work, so I wouldn't be dead-set against the concept. I think that as citizens, we should do our bit to keep the people running the show honest, and to that end the more help that Gavin Sheridan (the journalist on thestory.ie) can get with this project, the better.

Are you legally skilled, interested in keeping the feckers honest, with a bit of time on your hands?

They would love to hear from you, phone number is on the website.

They'll see this thread when their blog picks up the link, so if you can help their research by debating here whether or not NAMA is a public authority in this case, let's have at it!

Victor

I've not read it, but the state only owns 49% of NAMA.

As to whether NAMA is a state authority, I'm not sure. Sure it has certain powers based on the act, but so does eircom (different act).

markpb

Victor wrote: »

I've not read it, but the state only owns 49% of NAMA.

Who owns the rest - presumably the banks?

Edit: I decided to stop being lazy and ask Wikipedia. It says

the Master SPV would be a separate legal entity and would be jointly owned by private investors, who would own 51% of its equity and therefore have the majority vote, and by NAMA, which would hold the remaining 49%. Although the SPV would have its own Board, NAMA will retain a veto over all decisions of the Board that could affect the interests of NAMA or of the Irish government. The Master SPV would be run with the objective of making a profit on the purchase and management of the assets it purchases.
The private investors in the Master SPV would be entitled to the following economic return: the equity investors will receive an annual dividend linked to the performance of the Master SPV; On winding up of the Master SPV, the equity investors would only be repaid their capital if the Master SPV has the resources; they would receive a further equity bonus of 10% of the capital if the Master SPV makes a profit; All other profits and gains of the Master SPV would accrue to NAMA.

charlemont

N.A.M.A is a terrorist organisation

monkeypants

If the state only owns 49% of it, does that mean that the crazy amount of money that we're hearing for the cost of NAMA is only half of it?

Arsenal1986

markpb wrote: »

Who owns the rest - presumably the banks?

Edit: I decided to stop being lazy and ask Wikipedia. It says

On this, The SPV is something else isn't it? Private Investors will not own 51% of NAMA. Their is a SPV that Private Investors will own most of but that is on much smaller scale I think.

Arsenal1986

monkeypants wrote: »

If the state only owns 49% of it, does that mean that the crazy amount of money that we're hearing for the cost of NAMA is only half of it?

No , this is somehting else, the State is certainly not a minority partner in NAMA!

markpb

Arsenal1986 wrote: »

On this, The SPV is something else isn't it? Private Investors will not own 51% of NAMA. Their is a SPV that Private Investors will own most of but that is on much smaller scale I think.

I missed a line

NAMA will arrange and supervise the identification and valuation of property-backed loans on the books of qualifying financial institutions in Ireland, but the purchase and management of these loans will be the responsibility of the SPV

BornToKill

The structure of NAMA is up on the website on page 5 of the quarterly report.

OP - The Office of the Information Commissioner appears to have addressed the issue comprehensively in a detailed response and adjudicated that NAMA is not a public authority. What fault do you find with the reply or is it simply that you are not pleased with the decision?

markpb

BornToKill wrote: »

OP - The Office of the Information Commissioner appears to have addressed the issue comprehensively in a detailed response and adjudicated that NAMA is not a public authority. What fault do you find with the reply or is it simply that you are not pleased with the decision?

Thanks for the link. I can't speak for the OP but what bugs me is that a body which controls billions of euro of loans (and later, billions of euro of property) isn't publically accountable. I'm not suggesting that it was structured deliberatly to avoid transparency, I just find it abhorrant that the government would try to deny it's citizens information about how it's spending such a huge amount of money.

edanto

markpb, I agree with you completely and it's for that reason that I want the people at thestory.ie to peel the lid off NAMA.

The OCEI has not 'addressed the issue comprehensively', in my view. In this realm of citizens seeking information from government bodies, it is common for an initial request to be denied, only for it later to be granted on appeal.

A neat example of this would be when they requested copies from the Department of Arts, Sport and Tourism of their expenses database. It was refused. They appealed internally, it was refused again. They appealed to the Information Commissioner and a settlement was reached, and the data provided.

In this case, they believe that NAMA should be considered a public authority, and are appealing an initial refusal. I agree with them.

The post on their website that convinced me of this was this one from April:

---

http://thestory.ie/2010/04/21/nama-denies-status-as-public-body/
....
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.

---

The letter that the OCEI sent back to them relied on a definition of public administrative function and parallels with regulatory authorities.
http://www.scribd.com/doc/33732309 This seems, to me, too narrow.

The guys at thestory.ie have started to work on their response to the OCEI, which you can read here - https://docs.google.com/document/edit?id=1TzrEG8cu_ensQ40ObSU-zSzHJfcxA6Qfc3G41M5SGh0&pli=1#
- one point that they are making is that RTE is considered a public authority yet does not conform to the definition that the OCEI refusal letter is seeking to apply.

Again, if you're interested in this subject, and particularly if you're knowledgeable enough to do useful research, feel free to get in contact with them and offer your help! Or if you can bring this thread to the attention of someone else that can help, that might be all the help they need...

edanto

Hope my long reply didn't put people off reading about the story!

in any case, they have found the help they needed and have a response ready to go in. Details are here http://thestory.ie/2010/07/27/is-nama-a-public-authority/

Thanks to anyone that publiciised this through email or twitter!

edanto

A VICTORY today! NAMA was found to be a public authority under the legislation, meaning that is must respond to requests for information (using a mechanism similar to FOI). Under the ruling, Anglo would also be included.

You can be sure that NAMA will be appealing this to the high court, I hope they don't succeed. Tranparency is needed to keep NAMA safe from corruption.

Full details from the people that did the hard work.....

http://thestory.ie/2011/09/14/nama-a-public-authority/

loremolis

edanto wrote: »

A VICTORY today! NAMA was found to be a public authority under the legislation, meaning that is must respond to requests for information (using a mechanism similar to FOI). Under the ruling, Anglo would also be included.

You can be sure that NAMA will be appealing this to the high court, I hope they don't succeed. Tranparency is needed to keep NAMA safe from corruption.

Full details from the people that did the hard work.....

http://thestory.ie/2011/09/14/nama-a-public-authority/

Thanks to the OP for the update.

I'm glad to see a sensible decision on this.

Is it too early to tell if this ruling covers other state owned organisations who aren't currently under the auspices of the FOI Acts?