Readers will be aware that Anglo Irish Bank was nationalised in January 2009. This came after the bank guarantee scheme of September/October 2009. Anglo became a prescribed body under the Ethics in Public Office Act last summer, which was expanded through a statutory instrument in February 2010 to cover many subsidiaries of the bank.

However, Anglo has not become a prescribed body under the Freedom of Information Act 1997/2003. This would require the signature of Finance Minister, Brian Lenihan. Given the sheer volumes of public money already given to the bank, and the volumes of public money due to be given, it is outrageous that the public has no recourse to information as to how this money is being spent. We cannot quantify expenditure by the bank, nor has the Government made any effort to inform the public about how much public money has been given to the banks, and how it is exactly spent.

I gave a great deal of thought to this problem over the last number of months, and decided on a course of action that will be unknown to many. I have decided to publicise this process in the hope that others will follow. We have a right to know what is going on. As a result I started a process that I believe is the most significant and important request for information we have sent to date.

On February 8, 2010, I sent the following email to the Anglo Board through then secretary to the Board, Natasha Mercer.

Request for access to environmental information under European Communities (Access to Information on the Environment) Regulations 2007

Dear Sirs,

In accordance with the above mentioned regulations, I wish to request the following records which I believe to be held by Anglo Irish Bank Corporation Limited (“the Bank”):

1) All minutes of board meetings from January 2009 to January 2010, inclusive, insofar as such meetings relate to property or property related loans.

2) A breakdown of all properties owned or controlled by the Bank, or its agents or subsidiaries, (including any charges held over any properties, by it or its subsidiaries companies), to include the following data: for how much they were purchased, the date of the purchase, any amount owed, the address and/or land coordinates of the properties, the current estimated value of the properties, all environmental impact assessments, risk reports, other assessments and economic analyses carried out in relation to all properties and lands and their related loans. The date range for this request is January 2009 to January 2010, inclusive.

3) A breakdown of all security, collateral or charges held by the bank in relation to property.

In order to clarify the legal position, and to identify the legal arguments at an early stage to save costs, I put forward the legal arguments on possible defences here.

Anglo Irish Bank is a public body according to Section 3 (1) (vii) of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No 133/2007). In addition, according to S.I. 320/2009, Anglo Irish Bank is a public body for the purposes of the Ethics in Public Office (Prescribed public bodies, designated directorships of public bodies and designated positions in public bodies)(Amendment) Regulations 2009.

Regulation 2 of the EIR provides the interpretation of terms in the EIR and in regulation 2(1) it states: “environmental information” has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on –

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

(d) reports on the implementation of environmental legislation;

(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and

(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);

The information sought relates directly to properties and lands and therefore are “measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b)”.

This may be in the form of affecting “landscape” and “natural sites including wetlands, coastal and marine areas”, or biological diversity and its components”. It may also affect “factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a)”.

The information clearly falls under (e): “cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c)”.

Including economic and financial information in the definition in the Aarhus Convention stems from the recognition that it is important to integrate environmental and economic considerations in decision-making. This section is qualified by referring back to paragraph (c) measures and activities; so they are the economic and financial aspects taken into account when framing and operating these measures and activities. It ensures that the definition of environmental information extends not only to environmental measures and activities, but also to any of their economic aspects.

In the case of (f), lands and properties referred to in the reports would also be relevant, in terms of “the state of cultural sites and built structures”.

In addition Recital 10 in the introduction to the Directive includes:

“The definition of environmental information should be clarified so as to encompass information in any form on the state of the environment, on factors, measures or activities affecting or likely to affect the environment or designed to protect it, on cost-benefit and economic analyses used within the framework of such measures or activities and also information on the state of human health and safety, including the contamination of the food chain, conditions of human life, cultural sites and built structures in as much as they are, or may be, affected by any of those matters.”

Article 2(1) aims to provide that clarification. With that in mind, there is little to be gained from considering the subtle differences between, for example, “air and atmosphere” or “discharges and releases”. The examples are there to help identify what is environmental information, not to confuse.

Also, as they are only examples, there will also be other elements of the environment not mentioned in regulation 2(1)(a) and other factors not mentioned in regulation 2(1)(b). The examples are not intended in any way to limit the general definitions of environmental information.

Please note that according to Article 3 (2) (a) of the Directive, you are obliged to provide the information requested “as soon as possible, or at the latest, within one month” (20 working days) of being requested. I look forward to a response within the time period prescribed.

I wish to obtain all information in electronic format via email. I understand that much if not all of the sought information is held digitally, I therefore seek it in this format to save time and costs.

Please contact me by email to discuss any problems which may occur with this request.

Sincerely

Gavin Sheridan

The Bank, via Anglo Head of Legal Lizanne White, replied within the 20 day time period prescribed under the Regulations. This is the reply, my emphasis:

Having considered the European Communities (Access to Information on the Environment) Regulations 2007 (the “Regulations”) we have concluded that the Bank is not a public authority within the meaning of the Regulations. It is clear from the wording of the Regulations, read in light of the Guidance Notes on the Regulations, Directive 2003/4/EC on Public Access to Environmental Information, and the UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, that the range of public authorities subject to the Regulations is primarily defined by paragraphs (a) – (c) of the definition in regulation 3(1). Paragraphs (i) – (vii) simply clarify the range of bodies which may fall within paragraphs (a) – (c). A body of a type mentioned in paragraphs (i) – (vii) will not be a public authority unless, in addition, it falls within one of the categories in paragraphs (a) – (c). We do not believe that any other interpretation of the Regulations would be compatible with the constitutional status of regulations under the European Communities Act 1972. As the Bank clearly does not fall within any of these categories, it is not a public authority for these purposes. As such, the Bank is not subject to the Regulations.

The letter continued:

However, without prejudice to our conclusions on the definition of public authority and the scope of the Regulations, we have reviewed the categories of information requested in your letters in light of the Regulations. Even adopting a very wide interpretation of the scope of environmental information as defined in regulation 3(1), we do not believe that the vast majority of the information which you have requested would constitute environmental information. The mere fact that an activity, transaction or document is in some way connected with one of the elements mentioned in the definition of environmental information, or might potentially have a tangential impact on one of those elements, is not enough to make all information connected with that activity, transaction or document environmental information. In our view, some reasonable proximity is required between the activity, transaction or document and the relevant element; any other conclusion would make this definition so wide as to be meaningless. The majority of the information requested in your letter of 8 February is purely commercial in nature, and does not include any environmental information. The only information which arguably might constitute environmental information is certain environmental impact assessments, risk reports and other assessments which the Bank holds in respect of properties which it occupies and also in respect of properties for which it has loaned money and/or taken security.

Ms White continued:

The majority of the information in your letter of 12 February also is not environmental information but rather commercial and administrative information about transactions and activities which are at most tangentially connected to elements in the definition of environmental information.

In respect of the environmental impact assessments, risk reports and other assessments mentioned above, even if the Bank were subject to the Regulations, it would not be appropriate to release these documents. This is on the basis that they contain information whose disclosure would adversely affect (i) the confidentiality of personal information relating to natural persons who have not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law (Reg. 8(a)(i)); (ii) the interests of persons who voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied information to the Bank (Reg. 8(a)(ii)); and (iii) commercial or industrial confidentiality which is provided for under the equitable law of confidence and laws on banking secrecy to protect the legitimate economic interests of the Bank and its customers (Reg.9(1 )(c)).

Further, in so far as the information requested relates to all properties over which the Bank or its subsidiaries have taken any charge, it refers to a very large class of information. We believe that a request in these terms would be subject to refusal on the basis of regulation 9(2)(i) as being manifestly unreasonable having regard to the volume or range of information sought. Further, having regard to the foregoing exemptions and to the importance of confidentiality in banking relationships, we do not believe that the public interest served by the disclosure of this information would be greater than the public interest served by its non-disclosure. On the basis that, as noted above, the Bank does not hold any environmental information relating to carbon emissions, Regulation 10(1)(c) would not be relevant.

However, our views on these latter points are without prejudice to our conclusion above that the Bank is not a public authority and as such is not subject to the Regulations.

As is my right under the Regulations I then sought an internal review. I wrote in relation to the specific request outlined above:

Dear Ms White,

“We have concluded that the Bank is not a public authority within the meaning of the Regulations.”

Respectfully, I submit that this is not the case. I therefore seek an internal review to a more senior member of staff to review your decision in relation to both of my requests.

I again wish to re-iterate the legislation in this regard.

Anglo Irish Bank is a public body according to Section 3 (1) of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No 133/2007). In addition, according to S.I. 320/2009, Anglo Irish Bank is a public body for the purposes of the Ethics in Public Office (Prescribed public bodies, designated directorships of public bodies and designated positions in public bodies)(Amendment) Regulations 2009. I submit that the Bank cannot claim to be a public body for the purposes of one Act related to ethics, and not a public body for the purposes of these Regulations.

Let me further clarify both the Statutory Instrument and the Directive to more clearly demonstrate the position.

SI No 133/2007 states (my exerpts):

“public authority” means, subject to sub-article (2)—

a) government or other public administration, including public advisory
bodies, at national, regional or local level,

and includes—

(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,

Without reference to other sections of the SI, it is clear from the above section that Anglo Irish Bank is a public authority. Anglo Irish Bank was nationalised in January 2009. This nationalisation took place through the Anglo Irish Bank Corporation Act 2009. Section 5 (1) of the Act states:

On the commencement of this Act, all the shares in Anglo Irish Bank are transferred to the Minister.

There can be absolutely no doubt that Anglo Irish Bank is a public body for the purposes of the Statutory Instrument. The Minister for Finance is the sole shareholder of the bank. As outlined above this means that the Bank is a public authority for the purposes of the Directive. The Bank is therefore obliged to follow through on my request and make a decision on that request.

SI No 133/2007 aside, the European Regulations (Article 2 (2)) state that ‘Public authority’ shall mean:

(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 (a) or (b).

The Bank clearly falls under the above categories. In addition, the SI further clarifies this position by specifically referring to shares held by a Minister of the Government.

I also refer here to the UK Information Commissioner guide in relation to property requests:

“Overall, we consider that the majority of the information contained in property records held by local authorities is likely to be environmental as defined in the EIR.”

I would be of the opinion that all environmental impact statements, risk reports and other assessments which the Bank holds in respect of properties which it occupies and also in respect of properties for which it has loaned money and/or taken security, would be environmental information.

In addition, any claim under Regulation 9(2)(i) (that my request would be manifestly unreasonable given volume), I believe to be without merit. The Bank uses databases on which all of the requested information is held. The writing of a query or the dumping of such data would be a simple and effective process for release. The Bank, like many public authorities, uses databases and documentation management systems – this allows for the easy release of information.

I look forward to hearing from the Bank in the time period prescribed for internal reviews.

Kind regards

Gavin Sheridan

The Bank replied to my internal review, again saying that they agreed with the original decision. Original letter here.

I disagree with the internal review, and as a result, I have submitted an appeal to the Office of the Commissioner for Environmental Information.

I now await their decision. I will post about the other request I sent to Anglo in a future post.

Readers may recall a blog post I wrote back in December detailing my dealings with the Department of Arts, Sport and Tourism (DAST). After gleaning information from the footers of Ken Foxe’s FOIs concerning John O’Donoghue, I established that the Department was using Oracle iExpense software to store expenses information.

I wrote an FOI request in October asking for a ‘datadump’, of the entire database since inception (in other words, a copy of the database). The Department refused both the original request and the appeal for internal review (conducted by a more senior official in the Department).

In January I appealed the decision to the Office of the Information Commissioner. The request, internal review and appeal have cost a combined €240 (kindly made available by you, the public).

The Appeal letter to the Information Commissioner

Today I am pleased to say that I have reached a settlement with the Department, brokered by the Office of the Information Commissioner. The Department have agreed to release almost the entire database, with some elements removed. This is not a formal decision of the Commissioner, but is instead a settling of the issue. This just means that a formal OIC Decision was not required as the two parties reached an agreement.

The settlement is this: the entire expenses database of the Department, to include the follow expenses data headings:

Description, Grade, Full Name, Claim, Date, Purpose, Status, Total Claimed, Distribution Line Number, Start Date, Expense Type, Euro Line Amount, Currency Code, Currency Rate, Amount Quantity Unit, Rate Net Total, (EUR) Payment Date, Withholding Amount Invoice, Amount, Amount Paid.

Cost Centre numbers, employee cost centre numbers, named approvers and justification fields have been removed. There are also some removals from other fields which is either considered personal information or information obtained in confidence. These removals do not mean the information is redacted per se, it just means that in order to get the data, I agreed to remove certain columns in order to expedite the process. It does not preclude me from seeking the justification field, for example, in the future.

The data contains €774,882.29 of expense claims by named civil servants over a five year period (2005 to 2009 inclusive). The amount involved might appear relatively small, but it is the quality of the data that is more significant.

I cannot overstate the importance of the release of this data, and there are a number of reasons why this is the case.

Firstly, it sets an important precedent in terms of what information can be obtained from public bodies. In their refusals to release this data, the Department cited three sections of the Act which they felt exempted them from releasing it. The OIC felt differently. While not a formal decision of the OIC, a settlement was justified in this case as the Department were amenable to releasing the majority of the data sought. Decisions can take far longer to get (up to two years), so I felt that on balance the offered information in the settlement was acceptable.

Second, are the broader implications.

Following this settlement with DAST, I have started the process of requesting similar expenses data from the Department of Agriculture and Food, the Department of Communications, Energy and Natural Resources, the Department of Community Rural & Gaeltacht Affairs, the Department of Defence, the Department of Education and Science, the Department of the Taoiseach, the Houses of the Oireachtas Commission, the Department of Justice Equality and Law Reform, the Courts Service, the Industrial Development Authority, the Department of Enterprise, Trade and Employment, the Department of the Environment Heritage and Local Government, the Department of Finance, the Department of Foreign Affairs, the Department of Health and Children, the Department of Social and Family Affairs, the Department of Transport, the Health Service Executive, the Revenue Commissioners, FÁS and Enterprise Ireland.

I believe the combined expenses data for these (and other) bodies will run to tens, if not hundreds of millions of euro.

But perhaps most critical is this: I sought the data not as a journalist looking for a scoop, not as a member of the public with an axe to grind, but as a transparency advocate only interested in the public interest. By publishing this, and coming data, I believe the public is served by a more open and accountable State – where data related to how some public monies are spent is no longer hidden, but is in full view. Transparency keeps the system honest.

I should also make clear that publishing this data is not an attempt to embarrass any one person, nor does it form the basis of any claim that somehow there was something unjustified about any expense claimed by civil servants. It is simply an exercise in transparency, and no more.

And I will leave readers with one question.

If I am getting this data and intend publishing it in its entirety online for the public to see, what is stopping the Government from doing the same, proactively, without question, and as a matter of course?

In the end, sunlight benefits us all.

The dataset, presented as is (and containing some macros):

Department of Arts, Sport & Tourism expenses database

Donie Cassidy (Fianna Fail): Senators Fitzgerald, Coghlan, Quinn and Norris congratulated the Jekyll and Hyde foundation for the wonderful work it is doing. Senator Fitzgerald outlined the huge difference between the cost of the services being provided by the foundation and those provided by the HSE. It is something we must examine—–

Frances Fitzgerald (Fine Gael): It is the Jack and Jill Children’s Foundation.

Dominic Hannigan (Labour): Jekyll and Hyde is something different.

Donie Cassidy (Fianna Fail): My apologies. It is the Jack and Jill Children’s Foundation….

Your tax euros hard at work there.

I made the point earlier to Senator Dan Boyle (who is said to have offered his resignation over the inquiry). I tweeted to him: “…forgive my cynicism then. Will I see TV pictures of our leaders for the past 12 years being held to account for their decisions?”

To which he replied:

Brian Cowen, at least, is a start. But Bertie Ahern, being the Taoiseach who oversaw the entire period would be another must see. And Messrs McCreevy (Finance), Cullen, Dempsey, Roche and Gormley (Environment) would be others. As I said to Mr Boyle, accountability behind closed doors is not accountability. Accountability must be seen to be done, a bit like justice. Getting a report at the end of a process is not enough.

But then accountability seems to be a rather novel concept to most of our politicians.

[cross posted to thestory.ie]

For now I have not ‘cleaned’ the data, ie I have not removed spaces and extra sentences that are not needed for the purposes of better presentation. The document is ‘as
is’ and is based on PDFs which have been imported into Google spreadsheets.

Enterprise Ireland grants 2005 – 2008

You can view each year of data by clicking the respective year at the bottom of the spreadsheet.

[cross posted to thestory.ie]

Last month I put an FOI request in with the Department of the Taoiseach for the following:

(1) All transcripts of public sittings of the Moriarty Tribunal from its inception to the date on which this request is received.
(2) The contract for transcription services and a breakdown of fees charged for transcription services.
(3) The breakdown of fees for the maintenance and building of the Moriarty Tribunal website, and the contract for this.

Today I received the reply. I had to read it twice to let it sink in.

Moriarty reply

I can, in some way, live with the fact that the taxpayer spent the bones of €1 million on transcription fees since the inception of the Tribunal in 1998. But I cannot fathom how a) the transcripts are not available online and b) that I have to pay (again) to see the transcripts of the Tribunal and c) that Doyle Court Reports retains copyright on transcripts of public sittings of a Tribunal of Inquiry setup by the Department and paid for by the Irish people.

I called Doyle Court Reporters this morning and they were very courteous and helpful. I asked for a quote as to how much I would have to pay for digital (.doc) copies of all 370 days of public sittings of the Moriarty Tribunal. They called me back a short time later, stating that for all days the cost would be €16,600 @ €45 per day. But if I was bulk buying they would be prepared to offer a discount of 25%.

I did suggest to DCR that since the public had already paid nearly €1 million for the transcripts, it seems a little odd that I would, as a citizen, have to fork out another €16,600 to get copies of the transcripts. DCR were again courteous and helpful, and suggested I speak with the Moriarty Tribunal.

I then called the Moriarty Tribunal, where I spoke with the registrar, Siobhan Hayes. First I asked if the Tribunal had copies of all transcripts, to which the answer was yes. Are these subject to FOI I then asked… to which she eventually replied no, and that copyright was with DCR. I then asked why other Tribunals, such as Mahon and Morris, had published transcripts on their websites, and Moriarty ones were unavailable. I was told that the original agreement was that copyright would stay with DCR, and that was the way it was. I then asked for a copy of the contract or agreement between the Tribunal and DCR in relation to stenography services. Siobhan said she would get back to me on this issue.

Of course a couple of questions arise. First is whether the Department of the Taoiseach does hold the transcripts, but simply pointed me in the direction of Doyle Court Reporters for copies of them. Second is how, exactly, copyright on transcripts of a public sitting of a Tribunal applies.

Third, and most importantly, is why the transcripts are unavailable for public consumption as a matter of public record. These are historically important transcripts containing the sworn evidence of former Taoisigh including Charles Haughey and Bertie Ahern, as well as other former senior ministers, civil servants and businessmen, all in relation to extremely serious issues of public concern. Indeed when a Tribunal is established it is invariably included in the Terms of Reference that it concerns “definite matters of urgent public importance”.

Yet in relation to a matter of urgent public importance, for a Tribunal that is shortly to issue its second and final report, I can’t see who said what in relation to anything on any given day, whatsoever.

Mad, isn’t it?

Related post:
Morris transcript FOI

I will emphasise his conclusion:

Despite having pushed the Irish state close to, and quite possibly beyond, the limits ofits fiscal capacity with the NAMA scheme, the Irish banks remain as zombies whose only priority is to reduce their debt, and who face complete destruction from mortgage losses. The issue therefore is not whether the Irish bank bailout will restore the Irish banks sothat they can function as independent commercial entities: it cannot. Rather it is whether the Irish government’s commitments to bank bond holders when added to its existing spend-ing commitments, will overwhelm the fiscal capacity of the Irish state, forcing outside entities such as the IMF and EU to intervene and impose a resolution on the Irish banking system.

The Irish Credit Bubble (UCD)

[cross posted to thestory.ie]

August 22, 2005 Toothless IFSRA
August 25, 2005 Allied Irish Banks investigates itself
September 28, 2005 Banana Republic
October 10, 2005 Irish/Italian accountability
November 15, 2005 The sheriff is not for the good guys
December 13, 2005 Irish (Banks) Mafia
December 23, 2005 Legal actions, dodgy dealings and resignations
January 9, 2006 The (Irish financial) Wild West Show
March 24, 2006 Still waiting for law enforcement
March 26, 2006 Former AIB executives settle with Revenue for €323,313
June 7, 2006 Ireland – The Wild West of European finance

August 1, 2006 Irish Financial Regulator – Bizarre and toothless
August 2, 2006 Rampant corruption – rampant profits
September 28, 2006 A corrupt state
October 13, 2006 Bank robbers and bank robbers
December 12, 2006 Failing to make connections
December 14, 2006 Maintaining the illusion
January 23, 2007 State contempt for consumers
March 20, 2007 Irish Financial Regulator – Betraying the consumer
April 4, 2007 The Financial Regulator, banks and credit unions
April 25, 2007 Insider watchdog
May 3, 2007 It’s all in the mind
June 17, 2007 AIB: Still ripping off customers with impunity
June 13, 2007 Man of steel turns to straw
August 23, 2007 A corrupt and secretive financial market
August 21, 2007 Dublin – A conduit for dodgy deals?
August 27, 2007 Dublin operation – A sloppily-run pig sty

And that’s just the first two years of blog posts. Never let anyone tell you that no one could have seen what was coming.

First up, Simon Carswell, via FoI:

THE INTERNATIONAL Monetary Fund (IMF) told the Government that the definition of “long-term economic value” on bank loans in the draft Nama Bill was “masterful” as it was “sufficiently specific” and “sufficiently vague” to allow “appropriate flexibility”.

Steven Seelig, an adviser at the IMF, made the comments in an e-mailed response to a request by the Department of Finance for his opinion on the draft National Asset Management Agency Bill published last August.

“It is both sufficiently specific and sufficiently vague to allow appropriate flexibility. I hope you can retain this language,” said Mr Seelig, an expert on “bad banks”, in a private e-mail to department officials sent on August 25th.

The e-mail was among records released to The Irish Times under the Freedom of Information Act relating to representations made to the department on Nama.

And Laura Slattery, also via FoI:

THE NATIONAL Asset Management Agency (Nama) should be required to register with the Land Registry or the Registry of Deeds, Minister for Finance Brian Lenihan has been advised.

In correspondence released to The Irish Times under the Freedom of Information Act, the Law Society of Ireland and the Property Registration Authority both expressed concern about the exemption for Nama assets to register in the Land Registry or the Registry of Deeds.

The society wrote to Mr Lenihan in September to say “normal conveyancing practice” should not be disrupted by Nama and that the agency should be required to register its interest in a land bank or property title.

The Property Registration Authority said the exemption for Nama assets to register “would appear to run counter to public policy and the necessity of transparency and reliability in land registers”.

Registration on a State register “provides clarity and certainty”, John Coleman, chairman of the Property Registration Authority, wrote to the Department of Finance. Other letters written to Mr Lenihan expressing concerns about the workings of Nama included a note from Bernard Allen TD, chairman of the Committee of Public Accounts.

I will be seeking copies of these FoI in my own future FoIs.

I will post the document first and tell the story below, it’s worth a look. The information contained in this FOI, is I believe, valuable.

Cost-benefit analyses, impact reports or preparatory reports for NAMA

Why is this information valuable? It contains a timeline of what companies were involved in consulting the Government on the formation of NAMA, and gives us insight into the process. It also contains previously unknown titles, such as HSBC’s “Project Neo”. This is likely relates to the rumoured formation of a “New Anglo Irish Bank” in 2010. And it gives us an idea as to the level of involvement of Merrill, Arthur Cox, Rotschilds, PwC and HSBC.

The background:

A little bit of a saga ended today, finally. It is worth noting the dates involved in this request.

On August 17 I sought the following information from the Department of Finance:

1) A list of all cost-benefit analyses, impact reports or preparatory reports that have been carried out by the Department in relation to the proposed National Asset Management Agency (NAMA). Please can you list the title of the document, its date, and by whom it was written.

2) A list of all cost-benefit analyses, impact reports, or preparatory reports that have been carried out by people or companies working on behalf of, or at the request of the Department, in relation to the proposed National Asset Management Agency (NAMA). Please can you list the title of the document, its date, and by whom it was written.

I received my acknowledgment as standard, which was followed up with an email. The email said it was unlikely my request would be successful but if I wanted, I could be given information outside of my request. I went along with this and it resulted in this blog post on September 30. That’s in and around the 20 day limit under the Act.

But I didn’t feel the information provided was sufficient, and I always wanted information should my request be refused. So I said I still wanted to proceed with my original request. The Department then took the date of my re-request as the initial date, thus giving them another 20 working days. This brought the result of the request into early November, despite an initial request in August.

Numerous emails were sent, and replied to. The civil servants involved were “busy” with NAMA and it was taking longer than normal to reply to my request. Last week I had enough, and wrote an email seeking an internal review as my request was now a deemed refusal since the 20 day limit had expired. Today, December 8, nearly four months later, I got the reply.

I was interested in some FOI work that Deputy Joan Burton had been doing lately on Anglo Irish Bank, so I contacted her and asked for any documents or refusals she had received. She was kind enough to copy everything and post them down to me. I have now scanned and OCRd the documentation.

First up is Ireland’s notification to the European Commission surrounding the injection of €1.5bn of capital into the bank. It runs to over 50 pages and contains some curious stuff. Many of the handwritten notes are I believe by Deputy Burton herself, or her staff. But there are other curious oddities, some of which are highlighted.

Firstly the document appears to have been poorly redacted. There are strikethroughs throughout the document with notes afterwards such as “[Confidential - commercially sensitive][Department to confirm]“. What appears to have happened is that a draft of the document was released, rather than a redacted version. The draft contains the internal notes around what should or should not be redacted. One gem (and this is dated January 2008) is “Anglo Irish Bank is considered a fundamentally sound institution”. With a note beside saying it might be “commercially sensitive” to say so.

Not alone that, but further down it says (with a line through it)

The assessment by Merrill Lynch supports the position that Anglo Irish Bank is fundamentally sound.[Confidential - commercially sensitive][Department to confirm]

Another gem which was marked for redaction, marking points arguing in favour of capital injection:

The assessment that there was a low likelihood that Anglo Irish Bank would be successful in raising additional equity from existing shareholders and new private investors Confidential – commercially sensitive][Department to confirm]

Also this very interesting paragraph around future planning:

As noted above, on account of Anglo Irish Bank’s specific business model, which is specialised in commercial property lending and property development finance, not all of the elements of the agreed credit package will directly impact on Anglo Irish Bank, at least initially. However, given the envisaged future changes in the Bank’s business model and strategic direction under its restructuring plan, it is anticipated that in time further elements of the credit package will become applicable to Anglo Irish Bank accordingly [Confidential —commercially sensitive for Anglo Irish Bank] [Department to confirm]

Finally, there is this further reference to Anglo’s future:

On account of Anglo Irish Bank’s specific business model, which is specialised in commercial property lending and property development finance, not all of the elements of the agreed credit package will directly impact on Anglo Irish Bank, at least initially. However, given the requirement to prepare a restructuring plan within a six month period as part of the recapitalisation initiative, future changes in the business model and strategic direction of Anglo Irish Bank are likely to bring about a closer alignment between the lending activities of the Bank and the credit needs of the real economy. As a result it is anticipated that in-time further elements of the credit package will become applicable to Anglo Irish Bank accordingly. [Confidential - business secret] [Department to confirm].

Of course questions need to be asked. This document is dated January 8. The Government already had the PwC reports into Anglo and must have had some idea of the scale of the problems at the bank. Yet Merrill was still claiming Anglo was fundamentally sound just a week before the bank was nationalised. Not alone that, all references to the bank being fundamentally sound were marked for redaction.

There is one final section that sums up the entire sorry mess:

Anglo Irish Bank is a focused business bank with a private banking arm. The Bank provides business banking, treasury and wealth/management services. It is not a universal bank and its stated strategy is niche rather than broad market. Each of its customers deals directly with a dedicated relationship manager and a product specialist.

Yet in the same breath we are told the Anglo is of systemic importance. So which is it?

Ireland’s note to the Commission [PDF]

For the record and as part of an ongoing FOI request, here are all expenses and salaries of all TDs and Senators, 2005 – 2008. I received them today via email from the Houses of the Oireachtas Commission. We hope to digitise this data shortly. I also received the following note:

In relation to the break down of allowances I wish to clarify the following:

1. Telephone Allowance is paid as an annual allowance on a quarterly basis to all Members. The allocation of this allowance to specific telephone bills is a matter for each individual Member, consequently the allowance is not quantified into land line calls and mobile phone calls. Any expenses incurred by members over and above this allowance have to be met by the individual Member.

2. Each member is also entitled to 1,750 “Post Office Preferred, pre-paid DL (one third A4) sized envelopes each month. Any postal charges that are over and above the pre-paid amount must be paid by the Member at the time of posting.

3. Daily Allowances appear within the Travel and Subsistence amounts on the records of any Member who is claiming Daily Allowance, this allowance is a flat rate allowance and there is no mileage element. Members who live within 15 miles of Leinster House can only claim this Daily Allowance.

4. The Travel and Subsistence Allowance for Members is paid as a combined figure through our financial management system and appears in the record as one monetary amount, consequently the record as released will give an overall figure for Travel and Subsistence in each subsequent year.

5. The Allowance to attend in the Houses for the purpose of conducting parliamentary business with other Members and the allowance to use the House facilities are again paid through our Financial Management System. These allowances are processed with the travel and overnight element of the claim, consequently they again appear within the Travel and Subsistence record as a monetary amount in the overall record. There are 25 nights allowed for using the House facilities and 5 nights for conducting parliamentary business.

6. Payments made in a given year can relate to a claim period for the same or a previous year.

7. Office and position holders have higher allowances due to the higher expenses they are deemed to have incurred.

Please note that former Members of the Oireachtas, Mr Tony Gregory T.D., Mr Joe Sherlock and Mr. Seamus Brennan T.D. (former Minister) and Senators Tony Kett, Kate Walsh, Peter Callanan details of whose expenses are included, have since died.

I would like to draw your attention to an administrative error which occurred in the payment of the Constituency Office Maintenance Allowance (COMA) which was beyond the control of Members. This allowance was overpaid by €931.83 in 2008 to re-elected Members due to a calculation error. As the COMA is paid in arrears, this overpayment took place in January 2008 and it therefore appears in the 2008 records. Accordingly the COMA for 2008 is overstated by €931.83. All Members affected were notified and all monies have been fully recouped. You should also note that some Coma payments made in 2008 related to expenses incurred in previous years which were not claimed until 2008.

You should also be aware that while some Members have monies showing in two positions, e.g. whip to a party and a committee position this signifies that they held these positions at different times in the year. The Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Officers Amendment Act 1998, states under Section 6(2) that “If a member is eligible during any period to receive more than one of the allowances provided for in sections 3, 4 and 5 of this Act, only the higher or highest of those allowances shall be paid or payable to the member during that period”.

I would also like to clarify that the amounts which appear for Members in receipt of Committee Allowances for 2008 in most cases are not an annual figure as various Members were allocated positions in 2007 and payment for these positions were not paid until 2008. The figures which appear are not reflective of annual amounts. I have included a schedule of specified position amounts which were in effect during 2008 for your assistance.

You should also be aware that following a Boundary Commission Report in 2007, several constituency boundaries were revised and re-categorised. All Members in constituencies which were re-categorised were reverted to the lowest rate and were subsequently repaid the correct allowance in January 2008, which in some cases included arrears. The figures which appear in 2008 again for some Members are not reflective of an annual amount.

Explanatory document

Deputies salary and allowances 2005
Deputies salary and allowances 2006
Deputies salary and allowances 2007
Deputies salary and allowances 2008

Senator salary and allowances 2005
Senator salary and allowances 2006
Senator salary and allowances 2007
Senator salary and allowances 2008

For my own part, I started posting Ken’s FOI work online on August 18. I hope this helped in some way to get Ken’s work more exposure, and help force this resignation. For even half of the trips at the Department of Tourism, John O’Donoghue should have resigned. It took another set of expenses to tip it over the edge.

Mr O’Donoghue is a national disgrace. He has disgraced his party, disgraced the office he holds, disgraced our parliament, and disgraced our country.

But the FOI work continues.

Update: Taoiseach’s statment:

“In indicating his intention to step down from the office of Ceann Comhairle, John O’Donoghue TD, acted in the best interests of Dáil Éireann,
and the office of Ceann Comhairle. He has been a most effective and fair Ceann Comhairle who has acted with commitment and integrity to ensure that the members of Dáil Éireann could debate freely and fairly the issues of the day.”

“The Ceann Comhairle has indicated that he wishes to make a statement to the House next week, I respect his right to do that. I thank him for his contribution to this Dáil as Ceann Comhairle and I wish him well for the future.”

Incurred as Minister for Arts Sport and Tourism:

JOD Part 1 (India)
JOD Part 2 (Birmingham)
JOD Part 3 (Berlin)
JOD Part 4 (London)
JOD Part 5 (London)
JOD Part 6 (Venice)
JOD Part 7 (Manchester)
JOD Part 8 (New York)
JOD Part 9 (Turin)
JOD Part 10 (Stuttgart)
JOD Part 11 (Paris) (yet to be scanned by myself!)

Incurred as Ceann Comhairle, 2007 – 2009:

Explanatory document on CC expenses

Schedule 1 – Allowances and Expenses
Schedule 2 – Domestic flights
Schedule 3 – Details of foreign travel
Schedule 4 – Official entertainment

DOC

Domestic Travel 1
Domestic Travel 2
Domestic Travel 3
Domestic Travel 4
Domestic Travel 5

1 Stop Shop Constituency Expenses

What it brought to light, in a small way, was how little in-house expertise the Government has. Reports were written for the Government by Merrill Lynch, PriceWaterhouseCoopers, Arthur Cox, Peter Bacon, Rothschild, and HSBC. If you are wondering who drafted the NAMA legislation, the answer lies somewhere between all of these companies and people, the Department of Finance and the Minister. It would also be fair to say that the Irish banks must have had input into the process, since they are the ones who are being saved from bankruptcy.

Many of these companies though were engaged not by the Department of Finance, but by the National Treasury Management Agency. They are the guys who issue sovereign bonds and manage the national debt, or as their website says:

The 1990 Act empowers the NTMA “to borrow moneys for the Exchequer and to manage the National Debt on behalf of and subject to the control and general superintendence of the Minister for Finance and to perform certain related functions and to provide for connected matters”.

Now my interest is piqued because the salary of NTMA chief executive Michael Somers is secret. The same is true, it appears, of all other staff at the NTMA.

Thanks to some helpful readers, from what I can gather, NTMA pay bands are as follows:

91 members of staff are paid below €80,000 a year.
22 staff are paid between €80,000 and €100,000 a year.
27 staff are paid between €100,000 and €200,000 a year.
9 staff are paid over €200,000 a year.

The average bonus paid in 2008, for work during 2007, was €21,447.

I make that 149 members of staff. I also make that a bonus fund mean of €3.1 million for 2007. If we take the lower tier staff, and take the upper range of figures, we could surmise that at the maximum budget allowed (if people are all paid at the top of the range, which is unlikely) is:

€7.28m
€2.2m
€5.4m

Which would make €14.8m at the maximum allowable wage for each person. Add that to bonuses of another €3.1m. This excludes the 9 staff, since there is no ceiling there. We are hitting €20m in staff costs alone, minus directors. It is rumoured that Mr Somers earns anywhere between €200,000 and €1,000,000 a year.

The question is this: As a taxpayer am I entitled to know the salary of Mr Somers, and other highly paid staff at the NTMA? Is the public interest better served by this information being available, or is it better served by it being secret? The Government would argue that such high wages are needed to get the skills necessary from the private sector, and if these people were not working in the public sector, they could be earning more in the private sector – therefore we need high wages.

I don’t buy it. Where is the spirit of public service, like we see in the US? I am certain that many of the people working in the finance arms of the Obama administration want to work in service of the State because it is a part of a citizen’s duty. The salaries of many high ranking officials are freely available too. Treasury Secretary Timothy Geithner earns $191,300 a year, minus expenses. Fed chairman Ben Bernanke earns the same amount minus expenses (Although Geithner’s predecessor had an estimated net worth of $500m thanks to his years at Goldman Sachs).

The salaries of people who are being paid by the taxpayer, such as people at the NTMA, should be published on their website. We have to ask ourselves how the public interest is served by keeping this information secret, and if any arguments in favour of secrecy have merit. The interest in their salaries is not prurient, it is simply how accountable systems work. Publish the information, then we know.

No big deal, right?

So the next question is this: Under what section and subsection of the FOI act would a request for salaries be refused?