An appeal for NAMA to come within the remit of the Freedom of Information Act

Yesterday whilst presenting the annual report of the Office of the Information Commissioner, its head, Commissioner and Ombudsman, Emily O’Reilly articulated why she disagreed with the decision to exclude NAMA from the Freedom of Information legislation. She characterised bringing NAMA  within the remit of the FoI as a “no brainer” and spoke clearly about how NAMA might benefit from public trust and confidence whilst still being able to retain the confidentiality of commercial details of its operation.

Whilst researching a forthcoming blog entry comparing asset management companies and impaired asset schemes internationally, the experience of Securum (and its brother Retriva) in successfully bringing an end to the Swedish financial crisis in the early 1990s has been eye-opening.

In the early 1990s Sweden, Norway and Finland had a regional financial crisis which in Sweden’s case was caused by a property bubble and lack of regulation. Sweden sprang  into action and founded two companies, Securum and Retriva, to deal with banks’ toxic assets and to recapitalise the banks (the latter role makes the Swedish companies distinctly different to NAMA whose only remit is to acquire land and development loans and manage the loans and any consequential assets). In 5 years Securum, the main company, accomplished its remit and was closed. By 1997 €7bn-odd had been spent and about half had been received back  – by 2009 apparently the residual stock ownership of Securum would mean that it broke even. By all accounts Securum was a success.

In July 2009 one of the chief architects and operators of the Swedish rescue, Bo Lundgren, gave the Oireachtas Joint Committee for Finance and the Public Service the benefit of his experience. There are differences in scale, function and method of operation between Securum and NAMA. However this is what Mr Lundgren had to say about the transparency of Securum. (you can find the full transcript here).

“Transparency was vital. At least every six months I appeared before the parliament and had an open debate on what was happening in regard to bank support and so on. We tried to be very transparent in regard to what was happening.”

“On transparency, since we had this co-operation with the Social Democrats, we informed them, both unofficially and officially. At the beginning I spoke with a former Minister of Finance who was economic spokesman for the Social Democrats, and we were in agreement. We just made a deal. There were no written and formal agreements but when we did the first savings and loans a couple of days after I took office, for instance, we phoned each other and he stated that of course they had to help out with this one. I could go out in a press conference and state nobody has to be afraid of losing any money from what is happening in this bank. Then I had the Social Democrats and could say that as well, and that helped. [the reference to the Social Democrats is important – Sweden’s government built a consensus amongst all the main parties as to the strategy to rescue the financial sector – Ireland didn’t have that with the concept of NAMA and it remains to be seen how the implementation will be supported]

Later on, with the bank support authority, and even before that, I asked the former vice-prime minister, Odd Engström, to be the chairman of the bank support authority, and he was employed as a director general in the Ministry of Finance even before that. He became a good friend, not for political purposes, but did a hell of a good job. I am sorry about using the bad language. Therefore, that was formal in one way and informal in another. He had contacts with the leader of the Social Democratic Party at that time. It was unofficial and it was official as well. [In other words all parties were well briefed about what was going on]

Transparency, for me, also means other things. It means requiring that banks really display their problems. To my mind, at least, one of the causes of the long duration of the Japanese banking crisis — 15 years approximately, from 1990 to 2005 — was the lack of transparency. I was in Tokyo in 2002 and spoke about the Swedish handling of the banking crisis. I got the impression that the valuation of assets in banks was not really marked to market, to put it mildly. In a way it was more, well, as you choose. That made analysis of the Japanese banks’ situation go from being very disastrous to rather, if not good, not that bad. It was very difficult and nobody knew. One then had uncertainty which is what nobody likes in such times. Transparency, to me, is also marked to market, and has to be very strict anyway. I will come back to that later on.”

So in Sweden, they had by most accounts a successful resolution of their financial crisis, on a smaller scale than ours certainly, a crisis only affecting a small region which had its own currency, whose membership of the EU only came in 1995 so issues about state-aid and competition were limited. However they succeeded and brought the public and practically all political parties with them along the way and transparency was a key aspect of that.

With NAMA, we don’t have mark-to-market. We have Long Term Economic Value (LEV) which, it would be fair to say, has confused many economists and commentators in respect of the first tranche at least where the LEV of the property was estimated at €10.5bn and the consideration paid was €8.5bn. That the consideration paid is less than the LEV perhaps signals protection of the taxpayer but until the calculation is understood a suspicion will exist that the taxpayer is being exposed.

The absence of political consensus is to be regretted with respect to the concept. However with respect to implementation, it is to be hoped that all parties will try to ensure NAMA is a success. However NAMA is not off to a good start – the business plan is being cried out for and will not be published until June 2010, leaks from “sources” sow rumour and uncertainty about how NAMA is dealing with vast sums of money and whilst the reporting requirements as set out in the NAMA Act might be adequate when NAMA has been established and is operating on a normal basis, the lack of information now is frustrating and not conducive to the democratic processes in the State and although Brendan McDonagh has gotten off to a great start in a personal capacity, if revelations about the finances and method of operation are negative, the honeymoon period may come to an abrupt halt. Bringing NAMA within the remit of the Freedom of Information Act now would be a positive and confident step.

UPDATE: Alan Dukes, designate-chairman of Anglo is the latest to add his voice to calls for NAMA to be brought within the FoI remit, according to the Independent’s reporting from the Burren Law School. The National Union of Journalists make a strong appeal over the bank holiday weekend calling the exclusion “inexcusable”.

UPDATE: 11th May, 2010 – in the latest question in the Oireachtas on NAMA and FoI, Deputy Leo Varadker asked the Minister for Finance if he would amend the Freedom of Information Act to include NAMA and others and this is the answer he received “NAMA has a commercial mandate to obtain maximum value for the taxpayer and, to achieve this objective it is required to enter into complex commercial negotiations with financial institutions and developers, the nature of which requires in many instances a high degree of commercial confidentiality and therefore it is not appropriate to extend FOI to this body” – for the ll exchange click here.

UPDATE: 15th July, 2010. The Information Commissioner, Emily O’Reilly repeats her appeal for NAMA and other institutions to be brought within the application of the Freedom of Information Act. Saying that these institutions have nothing to fear from FoI which would respect commercial confidentiality, she suggested public trust would be boosted by the inclusion of NAMA within FoI.