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Transparency switch still off

By Gavin Sheridan

Two weeks ago the Supreme Court ruled in the case of the National Asset Management Agency (NAMA) vs Commissioner for Environmental Information. The court ruled that NAMA was a public authority for the purposes of the Access to Information on the Environment (AIE) Regulations 2007/2011.
It found that while the High Court had erred in its ruling on the definition of “and includes” in the Regulations, that NAMA was a public authority regardless of this by virtue of having “public administrative functions” as defined by the European Directive that the AIE Regulations had transposed – and was made more clear following the interpretation of this Directive in a significant 2013 Court of Justice of the European Union ruling called Fish Legal and Emily Shirley vs Information Commissioner and Others.
The NAMA case traced back to early 2010, when I sent a request to NAMA and Anglo Irish Bank seeking certain information. At the time there was no recourse for the public to obtain information from either body, as then Finance Minister Brian Lenihan had decided that NAMA would not be subject to the Freedom of Information (FOI) Act 1997/2003 – the question of Anglo coming under FOI was never really broached.
During the passage of the NAMA Bill through the Dail in 2009, Lenihan said: “If the bulk of the information is commercially sensitive, being obliged to prove that in individual cases will, of course, constitute an administrative burden. Virtually all of the information at the disposal of the agency will, in any event, be exempt”.
NAMA was then duly established without the scrutiny that FOI provides. So AIE was the only course of action available.
Of course I felt that Lenihan’s arguments held no water. The FOI Act provided for commercially sensitive information through one of its many exemptions – and Lenihan’s argument around administrative burden made no sense, given that NAMA was in the process of hiring hundreds of staff, who would be using modern IT systems. The appointment of one or two FOI officers (who were later hired anyway in 2014), utilising those IT systems would arguably impose some but not significant burdens on the agency.
Notwithstanding those FOI issues, I believed it was entirely arguable at the time that NAMA and Anglo held significant amounts of environmental information as it is defined in the Directive and Regulations – it is an expansive definition based on the Aarhus Convention (which Ireland subsequently ratified in 2012). Of course my preference would have been that both would have been covered by both FOI and AIE.
But AIE was worth pursuing. NAMA after all, is an asset management agency, where most of its assets are properties and land and it itself engages in property development. Anglo admitted in its refusals to answer requests that it also conceivably held large amounts of environmental information.
Submitting requests under AIE was the the only path to take – and thus began a five-year battle to find out if they were subject to the AIE Regulations at all – since they denied they were public authorities covered by that law.
Over the years, NAMA held firm on its position that it should not be subject to FOI, or to the AIE Regulations, expending not insignificant resources fighting with the Commissioner for Environmental Information in the High Court and Supreme Court.
At Oireachtas Committee appearances during those years, NAMA chairman Frank Daly and chief executive Brendan McDonagh articulated their views on why NAMA was a special case, and should not be subject essentially to either regime.
In 2012, Daly argued to the Finance Committee that “as chairman, I am a believer in transparency and freedom of information, but the real difficulty in NAMA is associated with its commercial objective. We are akin to a commercial State body, bank or asset management company… we cannot really afford to be hamstrung vis-à-vis our competitors. This is not to say we do not believe in transparency”.
It always sounds good when the leaders of rather secretive State agencies say they “believe in transparency”. The problems usually start when they fail to act on those beliefs.
There were political promises too, Taoiseach Enda Kenny made commitments to the Dail to bring NAMA under FOI by the end of 2012. This of course never happened – it would be 2015 before NAMA was brought under FOI, and then only partially.
Now, more than five years have passed. Much of NAMA’s loan-book is earmarked for sale, and Anglo itself is in liquidation. In 2010 the plan for both NAMA and Anglo was that they would be with us until at least 2020. This is no longer the case. By all accounts NAMA will wind down far sooner, and IBRC sooner still.
And five years in, we have now the appearance of significant question marks over the sale of certain assets, the prices paid, the people involved and the lobbying that may have taken place.
All of the decision-making happened in an opaque manner – and reasonable questions are now being asked about whether the secrecy surrounding both organisations has served the public well.
We have a Commission of Investigation looking into the sale of certain significant IBRC loans/assets in the years between its nationalisation in 2009 and the appointment of a special liquidator in 2013.
Moreover, just this week questions have been raised about NAMA’s largest sale to date, the Project Eagle sale in Northern Ireland, and this will be subject to important questions both north and south of the border. Inevitably though, these questions arise too long after the deals are done and the cheques have been signed.
Three questions arise: How many more bodies are buried in the corpse of IBRC? How many more scandals will surface from NAMA in the coming years, and could it have been any different?
In the original request I sent to NAMA in 2010 (I subsequently narrowed it hoping to expedite the process of deciding if they were subject to requests at all), I sought details of NAMA’s entire loan portfolio.
This is the starting point of trying to understand the agency as a whole, with one basic question: what does NAMA own or control, and where are those assets (or the assets connected to the loans) located? This is quite a simple question and one might wonder how it would pose difficulties for a body such as NAMA – after all it was established with extraordinary powers with the objective of returning maximum monies to the Irish State. Similar questions could be applied to Anglo/IBRC.
Other questions stem from this information. What proposals has the Agency put forward for the development of land or assets in Ireland and further afield? What assets have been disposed of, in total, and at what prices?
What is the nature of joint ventures between NAMA and specified property development companies? What is the nature of the relationship between NAMA developers and others? What do the minutes of meetings look like when NAMA meets developers?
And in what sense would it be damaging to the agency to reveal certain information such as which assets were sold and at what price (and at what gain or loss to the State relative to the value of the loan acquired) – particularly in the immediate aftermath of a sale process?
It is, after all, our money.
NAMA will often respond to these questions by simply saying: read our quarterly reports. But it’s not simply a question of the overall picture, but of the detail.
Had it been subject to FOI, we might have at least been able to ask, and had recourse via the Information Commissioner to some sort of independent review mechanism.
Ultimately, there is a clear connection between good governance and transparency. Better decision making happens in the open.
But all too often, Ireland repeats the mistakes of the past.
We start with secrecy, then often by chance some scandal emerges – this then turns into a political inconvenience which leads to the promise of an investigation.
The investigation itself is almost always under resourced or hamstrung from the beginning, and then it goes about its business until it issues a report.
By the time of the report, the reasons for the investigation being set up are often forgotten, or sometimes even the Government has since changed.
The report is published, the media parse the report by reading the executive summary, some news stories appear the next day and by the weekend all is forgotten and we all get on with our lives until the next scandal appears, and we rinse and repeat.
One of the keys to changing this pattern of behaviour, which is hugely damaging to public trust and to the general governance of the State itself, is to actually learn lessons; not to talk about learning them.
One of the methods of doing this is to strengthen the rules on scrutiny of decision making while the cards are still on the table.
Post hoc regret about poor decision-making is all too easy. We rarely move further than regret, until we repeat the mistake. FOI is one tool in this kit of accountability, but by no means the only one.
With NAMA and IBRC, the secrecy built into the organisations from the start will ultimately damage public faith in both, and lead to recriminations well into the future.
No doubt further scandals will emerge – and we can be safe in the knowledge that, as always, things could have been done better – but the default switch for transparency has yet to be turned on in Ireland. •