Commissioner to decide if Nama withheld data on O’Flynn brothers

Developers alleged commissioner failed to deal with original complaint

The Data Protection Commissioner will decide within two weeks whether the National Asset Management Agency failed to provide the developer brothers Michael and John O'Flynn with all of the personal data it held on them.

Under a settlement of proceedings by the brothers alleging that the commissioner, Helen Dixon, had failed properly to deal with their November 2014 complaint, she will decide the complaint by February 27th, the High Court was told on Tuesday. The commissioner will also pay the costs of the brothers' judicial review. Mr Justice Seamus Noonan agreed to adjourn the matter until February 28th, so the settlement can be implemented.

The brothers had claimed that the failure to finalise their complaint in a timely fashion breached their rights under the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.

After O'Flynn group loans were transferred, in early 2010, to a Nama company, National Assets Loan Management, the group engaged with Nama about restructuring its loans in order to continue in business. They gave Nama at least 2,000 pages of documents, including "highly confidential and personal" information about their business and personal affairs, they claimed. In May 2013 Nama sold the loans to Carbon Finance for a reported €1.1 billon.


Nama data

In September 2014 the brothers asked Nama’s data-protection officer for any personal data it kept about them. Under the Data Protection Act any information should have been supplied within 40 days, they said. They claimed Nama provided them with limited data but failed to meet their entitlements. They complained to the Data Protection Commissioner in November 2014.

They disputed Nama’s claims that it was entitled to exclude data on grounds of legal privilege, among others, and in order not to prejudice the agency’s interests or ability to recover money owed to the State. Michael O’Flynn wrote to the commissioner in June 2015 about the delay in finalising their complaint, saying the information would be relevant to evidence he was being asked to provide for the Oireachtas Joint Committee of Inquiry into the Banking Crisis.

The commissioner had said in correspondence that documents were being sought and any delay finalising the complaint was unsurprising given the number of documents the brothers said might contain personal data.

“Narrow interpretation”

They claimed that the commissioner had a narrow interpretation of the term “personal data”, excluding all information about them as company directors, and that she appeared to agree with Nama’s view that data could be excluded for relating primarily to their group.

In January 2016 the commissioner said an investigation would proceed without delay, and updates were provided over the coming months. But on March 6th, 2017, having received no findings or final decision, the O’Flynn’s solicitors told the commissioner that proceedings would be taken.

The brothers and their company O'Flynn Construction have alleged that Nama and National Assets Loan Management Ltd leaked confidential information about them and that this undermined the marketing strategy Nama had agreed with them. They claim the information was financial, personal and corporate and the sums involved related to assets worth hundreds of millions of euro.

Their claims were denied, including that the information was confidential. The brothers have said they need certain documents for their claim.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times