Freedom of Information opt-out sought by banks
THE country's leading banks wanted to ensure that NAMA, the toxic loans agency, was not covered under the Freedom of Information (FOI) Act when the bill was being drafted last August.
The Irish Banking Federation (IBF) suggested to the Department of Finance in a confidential submission that there should be an "explicit statement'' that NAMA would not be covered by the FOI Act. Ironically the IBF submission itself has now been released under the act.
The final National Asset Management Agency (NAMA) Act includes no reference to the FOI Act, and a range of curbs are included in the legislation to stop NAMA and banking officials from disclosing details about loans and the developers who hold them.
But last August the banks asked the Department of Finance whether something even stronger might be needed.
"Should there be an explicit statement, for the avoidance of doubt, that supply of information is not subject to Freedom of Information legislation,'' said the submission by the banks.
Banks are given protection in the legislation to provide information to NAMA itself and also to help any law enforcement agencies, but beyond these situations the curbs in the act are very severe.
For example, the legislation includes the following provision: "A person shall not, unless authorised by NAMA, a NAMA group entity or the NTMA or authorised or obliged by law to do so, disclose information that he or she knows is confidential information."
Regulatory agencies are entitled to be given information from NAMA on loans and debtors, but there is no provision in the legislation specifically covering the FOI Act, although the opposition did seek such a measure during amendment stage.
Another element of the IBF's submission queried the use throughout the bill of the phrase "utmost good faith". Throughout the legislation parties were asked to act with "utmost good faith'', but the IBF queried the need and use of this phrase
"While this is a standard of conduct known and familiar to the insurance industry, it is not typically used in the context of financing,'' said the federation.
"There is no statutory definition to provide guidance about the level of conduct expected to meet the requirement.
"Clarification in this respect should be provided,'' said the federation. The banks also expressed concern about incidences when NAMA buys some loans owned by a developer, but not others. The banks said this could leave them holding loans with less security than the loans owned by NAMA itself.
"If facilities are crossed secured and NAMA acquires some but not others, will the facilities left in the hands of the participating institutions continue to benefit from the security?'' the federation asked.