Developers sue Data Protection Commissioner over Nama data

Developer brothers Michael and John O’Flynn are suing the Data Protection Commissioner over alleged delay in finalising their complaint alleging the National Assets Management Agency has failed to provided them with all their personal data held by it.

The brothers claim commissioner Helen Dixon has failed to properly deal with and finalise their complaint, made in November 2014.

Their counsel Michael Cush SC secured leave this week to bring judicial review proceedings against the commissioner. The leave application was made ex parte (one side only represented) before Ms Justice Mary Faherty who returned the matter to May.

In their action, the brothers want orders compelling the commissioner discharge her statutory duty in relation to their complaint. They claim the alleged failure to finalise their complaint in a timely fashion breaches their rights under the European Convention on Human Rights and Charter of Fundamental Rights of the EU.

After the O’Flynn group loans were transferred in early 2010 to a Nama company, National Assets Loan Management Ltd (NALM), the brothers say the group engaged with Nama about restructuring their loans with the intention of continuing in business.

To that end, they gave Nama documents comprising at least 2,000 pages, including “highly confidential and personal” information about their business and personal affairs, they claim.

Nama later sold their loans in May 2013 to Carbon Finance Ltd for a reported €1.1 billon.

In September 2014, they asked Nama’s Data Protection Officer for any personal data kept by it concerning them which, under the Data Protection Act, should have been supplied to them and within a maximum 40 days, they claim.

Nama provided them with certain limited personal data, they claim.

It is alleged the Nama response failed to meet their entitlements under the Act and they made a complaint to that effect to the Commissioner in November 2014. They dispute Nama’s claims it was entitled to exclude data on grounds including legal privilege and so as not to prejudice the agency’s interests or ability to recover monies owed to the State.

Michael O’Flynn wrote to the Commissioner in June 2015 about the delay, 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.

In correspondence, the commissioner had stated documents were being sought and any delay finalising the complaint was not surprising given the very substantial documents identified by the brothers as potentially containing their personal data.

They claim the commissioner had identified a “narrow interpretation” of the term personal data as excluding all data relating to them in their capacity as company directors and also appeared to agree with Nama’s view data could be excluded on the basis it related “primarily” to their group.

In January 2016, the commissioner said an investigation would proceed without delay and various updates were provided over the coming months.

On March 6th last, having received no findings or final decision, their solicitors told the Commissioner proceedings would be taken.

In separate proceedings yet to be heard, the brothers and their company O’Flynn Construction allege NAMA and NALM leaked “confidential” information concerning them and that undermined the marketing strategy NAMA had agreed with them.

They claim the information was financial, personal and corporate and the sums involved were very large, relating to assets worth “hundreds of millions” of Euro. Their claims are denied, including that the information was “confidential”.

They say they cannot quantify their claim pending further investigations and need certain documents.

That case is also against Enda Farrell, a former employee of NAMA, with an address in Belgium. He pleaded guilty before Dublin Circuit Court last year to eight counts of unlawfully disclosing information and got a two year suspended sentence.