To summarise events since Monday: a statement was produced by Tipperary businessman John Fraher in the High Court in Dublin on Monday in a case where NAMA successfully obtained a €5.9m judgment.
On Monday evening, John Fraher’s statement was obtained on here. The statement included an annex which apparently listed confidential loans information disclosed by NAMA. NAMA was asked to comment on the affidavit and a blogpost was published here on Monday night which attached part of the statement, “the affidavit” but didn’t attach the annex with the confidential loan information – it was stated on here that the annex was being withheld for the time being whilst privacy considerations were examined.
On Tuesday evening, NAMA’s solicitors wrote to NWL threatening to seek an injunction unless an undertaking was given not to publish the annex. That undertaking was given.
What is the brouhaha about?
This summary might help:
What: 103 lines of information showing the names of individuals, companies, businesses, the par value of their loans, the NAMA acquisition price for those loans
When: it is not 100% clear but likely to have been provided in 2011 or 2012
Who: it is alleged that NAMA employee, Padraig Reidy sent the list to John Fraher and his financial advisers.
Why is it important: two reasons (1) because it lists loans owed by John Fraher to NAMA with both the par value of the loan and also the price apparently paid by NAMA for the loan and the NAMA price is supposed to be confidential and not disclosed outside NAMA to anyone including the borrower because it gives potential buyers of the loan or underlying property an advantage to know what NAMA paid, as NAMA has said that in general it seeks to obtain what it paid for the loan, and
(2) it lists loans owed by people unconnected to John Fraher. To illustrate this with a completely hypothetical example. (a) John borrowed in his own name €10m to buy an office block. (b) Separately, he jointly borrowed €30m with Sean to buy a plot of land to develop housing (c) Completely unconnected to John, Sean jointly borrowed €50m with Mary to buy a shopping centre. While John would be entitled to see his own loan information (a) and the loans for which he was jointly liable (b), he has no right to see loans completely unconnected to him (c).
The complaint below has been submitted to the Data Protection Commissioner today together with a copy of the affidavit which you have all seen and is here, and with a copy of the annex which contains the confidential information which will not be published on here because in general it won’t usefully add to your knowledge, because it contains personal financial information and because a commitment has been given to NAMA not to publish it.
“Mr Billy Hawkes
Data Protection Commissioner
(by email to email@example.com)
Dear Mr Hawkes,
I am involved in the operation of the NAMA wine lake blog which reports on the activities of NAMA and related subjects.
I am writing to draw your attention to appears to be a breach of the Data Protection Act 1988 by NAMA, to ask that you investigate this specific incidence and to ask that you generally investigate if this incidence has been replicated or is systemic.
On Monday last, 29th April 2013, the blog was made aware of an affidavit in a High Court case – reference 2013/213 S, National Asset Loan Management Limited, represented by Hayes solicitors versus Mr John Fraher. The affidavit was produced by the respondent, Mr John Fraher and it included in a separate document annexed to the affidavit, copies of correspondence and in addition, what I will refer to as the “Subject Information”, namely the names of NAMA borrowers, the amounts owed and the valuation placed on those loans by NAMA. The affidavit had been read into the court record on Monday at the High Court where NAMA succeeded in obtaining a circa €6m judgment against Mr Fraher. On Monday evening, I sought comment from NAMA on the affidavit and the Subject Information. There was no response and a blogpost was published on Monday evening and is available here.
The blogpost attached the affidavit but the Subject Information was withheld as it seemed to touch on issues of privacy.
The alleged breach
Mr Fraher alleges in his affidavit that a NAMA employee, Mr Padraig Reidy, provided Mr Fraher’s financial advisers with the Subject Information. Mr Fraher alleges that NAMA subsequently sought to have this information destroyed. The Subject Information provided to Mr Fraher and his financial advisers apparently showed on 103 lines, the names of borrowers, the amount of the loan and the amount paid by NAMA for the loan. Mr Fraher claims that some of the borrowers have no connection to him, and that some loans also have no connection to him. NAMA has a duty to its borrowers to protect the confidentiality of their affairs, and on the face of it, NAMA has provided in this instance, financial details of people, companies and businesses to a third party.
That NAMA, contrary to the Data Protection Act (as amended) apparently disclosed to third parties confidential financial information relating to its borrowers in the specific incidence when Mr Padraig Reidy of NAMA provided Mr John Fraher’s financial advisers with a listing of 103 loans with the names of borrowers and the value of the loans, with some of the borrowers unconnected to Mr Fraher.
NAMA appears to systematically regard an individual as part of what it calls a “connection” and in this instance, NAMA apparently disclosed confidential personal information to a third party – Mr Fraher – because the third party was connected with some, though not all, of the borrowers listed.
The general complaint is that NAMA may have systematically provided connection information to other borrowers in previous incidences, but I do not have information on that at this point.
I am attaching two documents (1) the affidavit and (2) the annexed document which contains the Subject Information.
I should say that solicitors acting on behalf of NAMA have contacted me seeking an undertaking that the Subject Information not be published on the NAMA wine lake blog. This undertaking was promptly provided and further, an undertaking was volunteered not to disseminate the Subject Information in any manner whatsoever, save in its inclusion in this complaint to you.
I look forward to hearing from you with an acknowledgement of this correspondence and an outline of how you will deal with it,
With many thanks for your time,