Criminal Prosecutions

Dáil Éireann Debate, Wednesday - 16 May 2018

Wednesday, 16 May 2018

Questions (7)

Mick Wallace

Question:

7. Deputy Mick Wallace asked the Minister for Finance if he has had discussions with the NAMA chairman or CEO regarding a court case involving a former NAMA official charged with leaking information that the DPP decided not to prosecute; if so, the details of the discussions; if no other instances of leaking have occurred within NAMA, his further views on whether the Data Protection Commissioner should investigate the details regarding the case mentioned; and if he will make a statement on the matter. [21665/18]

Oral answers (15 contributions)

Deputy Mick Wallace

My question relates to the recent decision of the Director of Public Prosecutions, DPP, not to prosecute former National Asset Management Agency, NAMA, official Mr. Paul Pugh for the leaking of confidential information. Can the Minister shed some light on the case? Has he spoken to the NAMA chairman or CEO about it? Is the Minister concerned that leaking is going unpunished?

Deputy Paschal Donohoe

I wish to advise the Deputy that the DPP is entirely independent in carrying out her functions and neither I nor the Department of Finance are privy to her decisions. It would not be appropriate for me to question or query any action taken by the DPP in relation to these proceedings, and I did not discuss this matter with the chairman or CEO of NAMA. However, I am aware from recent newspaper reports of the decision by the DPP not to pursue this matter. Such a decision is solely within the purview of the office of the DPP. 

I wish to inform the Deputy that employees assigned by the National Treasury Management Agency, NTMA to NAMA are bound by a number of statutory obligations in respect of the confidentiality of information to which they have access by virtue of their employment by NAMA. These include obligations imposed under section 14(1) of the National Treasury Management Agency Act 1990 and under section 202 of the National Asset Management Act 2009. In addition to this, I can advise the Deputy that staff who are assigned to NAMA by the NTMA are also subject to the provisions of the Official Secrets Act 1963. Contravention of these statutory obligations constitutes a criminal offence. Under section 7 of the NAMA Act, a person who commits such offences may be liable to a substantial fine, a term of imprisonment or both.

Under section 19 of the Criminal Justice Act 2011, any party with evidence of criminal wrongdoing is legally obliged to bring such evidence to the attention of An Garda Síochána. I am advised that at all times where NAMA has had reason to suspect that confidential information has been unlawfully released, NAMA has informed An Garda Síochána and fully assisted in Garda investigations.

Deputy Mick Wallace

The Minister says that he cannot hold the DPP to account, but he should be able to so hold NAMA. The decision of the DPP raises a lot more questions than answers. We have to wonder what caused the body to feel that it could not prosecute. When did NAMA first find out that Mr. Pugh had been leaking information, and when did they report it to An Garda? These are answers the Minister should get from NAMA. NAMA would like us to believe that Mr. Enda Farrell was the only bad apple in the barrel in nine years, but we know that this is not true. Mr. Pugh was accused of intentionally disclosing confidential information about McCabe Builders (UK) Ltd. to a London-based investment company, Connaught and Whitehall Capital UK Ltd., by email on 6 June 2012. Section 202 of the National Asset Management Agency Act 2009, to which the Minister referred, states that confidential information means "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".

The section goes on to state:

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.

The information I have is that the senior executives of NAMA are able to pick and choose which information they deem confidential whenever it suits them. The case did not suit them. Can the Minister find out-----

An Leas-Cheann Comhairle

Deputy Wallace, the Minister must be allowed to respond.

Deputy Mick Wallace

-----did the CEO or chairman intervene in this case at the last minute?

Deputy Paschal Donohoe

A Leas-Chathaoirligh, we have just heard a number of allegations there-----

Deputy Mick Wallace

There were not allegations.

Deputy Paschal Donohoe

-----levelled against individuals who are not present to defend themselves.

An Leas-Cheann Comhairle

I remind Deputy Wallace that he cannot make allegations.

Deputy Mick Wallace

They were not allegations. They are known facts.

An Leas-Cheann Comhairle

As far as I am concerned, the Deputy cannot make allegations against those who are not here to defend themselves.

Deputy Paschal Donohoe

When he responds, the Deputy might explain what a fact is, as he understands it, and what is an allegation. The Deputy knows that I cannot intervene in any decision that is made by either the Director of Public Prosecutions or the Data Protection Commissioner. He also knows that it would be entirely inappropriate and wrong for me to engage in any matter which NAMA is dealing with while it is dealing with both bodies. What I have outlined for the Deputy today comprises independent decisions that have been made by both the Data Protection Commissioner and the DPP. I cannot influence any decisions they make in any way, as I know the Deputy understands. When NAMA was dealing with both of those bodies, it would have been wrong for me to be involved in any decisions it made. I have answered the questions that the Deputy has put to me, and I have explained that I am confident that NAMA is aware of all of its duties in relation to this area. Where there are any breaches or issues, NAMA has responded to the relevant authorities.

An Leas-Cheann Comhairle

Deputy Wallace has a final question. He should be careful.

Deputy Mick Wallace

I wrote to the Data Protection Commissioner about this case. Her office seems to be the only wing of the State at present that has any interest in holding NAMA to account. The Minister might be able to help me with this. The Data Protection Commissioner asked me whether the information leaked by Mr. Pugh contained personal data. This is critical to allowing the DPP to investigate. Will the Minister instruct NAMA, as is his right as Minister, to give all files relating to this individual case to the Office of the Data Protection Commissioner, so that it can investigate it properly? The Office of the Data Protection Commissioner obviously does not have that information, but the Minister could tell NAMA to give the relevant information to it so that it can do its work. The Minister cannot wash his hands of this. The last Minister for Finance did not hold NAMA to account. Will Deputy Donohoe? I am not convinced.

Deputy Paschal Donohoe

Any investigation that is under way on the part of the Office of the Data Protection Commissioner of any matter that it is raising with NAMA is a matter for that body. If it has any concerns that information is not being fully shared with them, or any issues in relation to the investigation, it has significant power under law to deal with that matter. I am sure if there were any such concerns, the Office of the Data Protection Commissioner would be using the powers that are available to it.