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34 2009

National Asset Management Agency Act 2009

PART 11

Use of Information

Definition (Part 11).

196 .— In this Part “ adviser” includes an investment adviser, an investment banker, a property valuer, a solicitor, an accountant and an auditor and any staff member or employee of, and any agent or other person acting on behalf of, an adviser.

Deemed consent to disclosure of information.

197 .— A participating institution shall be taken for all purposes to have consented to the disclosure of information in accordance with this Part.

Duty of confidentiality, etc., not contravened by provision of information or production of documents and books for inspection.

198 .— (1) Disclosure by a credit institution to NAMA or the NTMA of information or records about a bank asset, or about any person connected with a bank asset, made on or after 30 July 2009, does not contravene any duty of confidentiality to which the credit institution or any other person is subject.

(2) The production by a person to NAMA, a NAMA group entity or the NTMA of a document that a person could not have been compelled to produce to a court on the grounds of legal professional privilege does not constitute a waiver of that privilege from production in relation to the document.

Duty of confidentiality, etc., not contravened by provision of information to, or production of documents and books for inspection by, potential purchasers.

199 .— (1) The disclosure of information or a book, document or record in relation to a bank asset by NAMA or a NAMA group entity to a potential purchaser or to such a purchaser’s agent or adviser does not contravene any duty of confidentiality to which NAMA or the NAMA group entity would otherwise be subject.

(2) The production of any book, document or record under subsection (1) that NAMA or a NAMA group entity could not have been compelled to produce to any court on the grounds of legal professional privilege does not constitute a waiver of that privilege.

(3) NAMA or a NAMA group entity may disclose confidential information to a participating institution, but only if to do so is necessary for the identification of bank assets, for the purposes of NAMA’s making a decision whether or not to acquire bank assets, or for the proper management of acquired bank assets.

Obligation to provide information, etc., to NAMA, etc., extends to provision to advisers.

200 .— An obligation under this Act of a person to provide information to NAMA or a NAMA group entity, to produce a book, document or record to NAMA or a NAMA group entity, or to provide facilities for the inspection of or taking copies from a book, document or record also has effect as an obligation of the person to provide such information, produce such a book, document or record or provide such facilities to an agent or adviser acting on behalf of NAMA or the NAMA group entity.

Operation of Data Protection Acts 1988 and 2003.

201 .— To avoid doubt, an obligation on a credit institution or any other person under this Act to disclose information to NAMA, a NAMA group entity or the NTMA extends to personal information, within the meaning of the Data Protection Acts 1988 and 2003.

Disclosure of confidential information.

202 .— (1) In this Act “ confidential information ” means—

(a) information relating to the commercial or business interests of a participating institution or of a person who is or has been in a relationship with a participating institution,

(b) information that is subject at law or in equity to a duty of confidentiality,

(c) information that, if it were contained in a document, would have the result that a person could not be compelled to disclose the document in evidence,

(d) information the disclosure of which would tend to place NAMA, a NAMA group entity or the NTMA at a commercial disadvantage, or

(e) information about proposals of a commercial nature and tenders submitted to NAMA, a NAMA group entity or the NTMA.

(2) Except as otherwise provided or authorised by this section or another enactment, 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, or use, to the direct or indirect advantage of himself or herself or of another person (other than NAMA, a NAMA group entity or the NTMA), confidential information that he or she obtained—

(a) while a member of the Board,

(b) while an officer of NAMA or a staff member of the NTMA or otherwise performing duties on behalf of NAMA or the NTMA,

(c) as a result of a disclosure to him or her permitted by subsection (5) (d) or section 199 (3), or

(d) in the course of the provision (including the provision by another person) of a service to NAMA or the NTMA.

(3) A reference in subsection (2) to the disclosure or use of information includes the disclosure or use of a document containing the information.

(4) For the purposes of this section, it shall be presumed, unless the contrary is shown, that a person knew that information was confidential information, if that person reasonably ought to have known that it was confidential information.

(5) Nothing in subsection (2) prevents the disclosure of information—

(a) to NAMA or a NAMA group entity, the NTMA or the Minister,

(b) in the course of giving evidence before a court or tribunal having the power to examine witnesses on oath,

(c) in the course of giving evidence before a House of the Oireachtas or a Committee of either or both such Houses, or

(d) to an agent of NAMA, a NAMA group entity, the NTMA or the Minister.

(6) Notwithstanding subsection (2), it is not an offence for a person, acting in good faith, to disclose confidential information to—

(a) the Garda Síochána,

(b) the Revenue Commissioners,

(c) the Director of Corporate Enforcement,

(d) the Competition Authority,

(e) the Regulatory Authority,

(f) any other body (whether within the State or not) responsible for the detection or investigation of criminal offences, or

(g) any other body (whether within the State or not) responsible for the detection or investigation of contraventions of law (whether of the State or not) relating to taxation, companies, the regulation of financial services, or competition,

where that information gives rise to a reasonable suspicion that a participating institution, an employee or agent of a participating institution, a debtor in respect of a bank asset acquired by NAMA or a NAMA group entity or an employee or agent of such a debtor may have—

(i) committed a criminal offence, or

(ii) contravened a law relating to taxation, companies, the regulation of financial services, or competition.

Obligation to pass certain information to law-enforcement authorities.

203 .— Where NAMA has reason to suspect that—

(a) a participating institution may have committed a criminal offence, or

(b) a participating institution may have contravened a law relating to taxation, companies, the regulation of financial services, or competition,

then NAMA shall report the information that leads it to form that suspicion to—

(i) the Garda Síochána,

(ii) the Revenue Commissioners,

(iii) the Director of Corporate Enforcement,

(iv) the Competition Authority,

(v) the Regulatory Authority,

(vi) any other body (whether within the State or not) responsible for the detection or investigation of criminal offences, or

(vii) any other body (whether within the State or not) responsible for the detection or investigation of contraventions of law (whether of the State or not) relating to taxation, companies, the regulation of financial services, or competition,

as the case appears to it to require.

Provision of information to Revenue Commissioners.

204 .— (1) In this section—

“ relevant person ” means a debtor, associated debtor, guarantor, surety or chargor and includes a connected person (within the meaning given by section 10 of the Taxes Consolidation Act 1997 ) in relation to a debtor, associated debtor, guarantor, surety or chargor;

“ tax ” has the meaning given by section 960A of the Taxes Consolidation Act 1997 .

(2) Notwithstanding any provision of this Act or any other enactment—

(a) the Revenue Commissioners may, for the purposes of the performance of their functions under Part 42 of the Taxes Consolidation Act 1997 and any regulations made under that Part, seek from NAMA information in the possession of NAMA, or which NAMA has knowledge of, in relation to a named relevant person, and

(b) where NAMA is in possession of, or has knowledge of, the information referred to in paragraph (a), NAMA shall provide it to the Revenue Commissioners.

(3) Notwithstanding any other enactment, the Revenue Commissioners shall disclose to NAMA information in relation to a named relevant person that, in the opinion of the Revenue Commissioners or of NAMA, is required by NAMA for the purposes of the performance of its functions under this Act, and that is in the possession of the Revenue Commissioners, or of which the Revenue Commissioners have knowledge.

Disclosure by regulatory authorities.

205 .— (1) The Minister, the Governor and the Regulatory Authority may, in accordance with applicable law, disclose to each other any information that any of them receives concerning a participating institution or any of its subsidiaries. The recipient shall treat any information disclosed pursuant to this section as confidential.

(2) Disclosure under subsection (1) is subject to the requirements of—

(a) the treaties governing the European Communities, and

(b) the ESCB Statute.

(3) In subsection (1) “ information ” includes information relating to a period before the participating institution concerned was designated under section 67 as a participating institution.

(4) The Governor and the Regulatory Authority may use information disclosed to either of them under subsection (1) in the performance of their functions.