Whether the CER was justified in its decision to refuse access to records relating the regulation of the electricity sector

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner

Background

In its original request of 15 April 2013, the applicant sought access to detailed information relating to:
Eirgrid's Technical assumptions document for the Incremental Transfer Capability (ITC)
Grid Development
Conventional Plant
Consent to connection and access for Eirgrid's East West Interconnector (EWIC)
Legal opinions received by CER on implementation of the Renewables Directive 2009
The Single Electricity Market Committee (SEMC) proposal to the EU requesting a derogation from the EU's full unbundling rules
Register of declaration of interests of all CER Commissioners and Directors.

The original request set out detailed elements of the above to be included, and was subject to clarification between the applicant and the CER. The revised scope was agreed on 15 May 2013. The CER then proceeded to deal with the request, and issued its original decision on 12 July 2013 in which it identified and set out in a schedule 85 records relevant to the request. It granted access to some and refused access to others on the basis that various exemptions provided for in the FOI Acts applied. The applicant sought an internal review on 27 August 2013 and the CER's internal review decision issued on 19 September 2013, in which some additional records were identified and some additional parts of records were released. The applicant made an application for review to this Office on 25 October 2013. During the course of the review, the Ms. Brenda Lynch, Investigator, informed the CER of her view that not all of the exemptions claimed were justified and asked it to review its position. On foot of this, the CER agreed to release some or all of a further 16 records which had previously been refused.

In dealing with the request, the CER consulted with potentially affected third parties on some of the records identified by it as relevant to the request. For procedural reasons, those records on which third parties were consulted were treated as the subject of a separate review by this Office. I have, however, decided that it is appropriate that this composite decision be issued covering both reviews.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the CER, to the submissions of third parties and to the provisions of the FOI Acts. I have decided to bring this matter to a conclusion is by making a formal, binding decision.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

The review relates solely to whether the decision of the CER to refuse access to the records sought was justified. Any records or parts of records released during the course of the review are no longer in scope of this decision. The records remaining in scope are as follows:

Review No. 130264: Records 46, 63, 65, 76-80, 83, 85, and 86.
Review No. 130287: Records 19, 57, 58, 59, 66, 72 and 73.

Preliminary Matters

Unfortunately, there was a considerable delay before the review was assigned to an Investigator in this Office, due to a backlog of cases on hands and the limited resources available. I am glad to say that both of these issues have now been addressed. Further delays arose in dealing with the case due to changes of staff both in this Office and the CER. Under new procedures introduced by my Office for more recent cases, public bodies which fail to deal properly with requests generally have their decisions annulled and the matter remitted to them for fresh consideration. In cases where the public body fails to justify its decision as required under the FOI Act, I will, subject to other requirements of the Act, direct the release of records. However, in older cases such as this one, it was considered necessary to give the public body further opportunities to justify its position. It is fair to say that the content of the records and the circumstances of this case made the investigation relatively complex.

Section 34 provisions relevant to the Commissioner's decision
Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." It should also be noted that a review under section 34 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Section 43(3)
Although I am obliged to give reasons for my decision, Section 43(3) of the FOI Act requires the me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the records is limited.

The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Section 13
I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, I take the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

Section 32
Section 32 provides that a public body shall refuse to grant a request if (a) the disclosure of the record concerned is prohibited by any enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule), or (b) the non-disclosure of the record is authorised by any such enactment in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record.

EirGrid plc is the statutory transmission system operator (TSO) and is one of the third parties affected by this review. In its submission to this Office, it pointed out that it is subject to statutory obligations in relation to the preservation of commercial confidentiality. The relevant statutory provisions are Regulations 12 and 24 of the European Communities (Internal Market in Electricity) Regulations, 2000(SI 445 of 2000), as amended by Regulations 9 and 12 of the European Communities (Internal Market in Electricity) Regulations, 2005 (SI 60 of 2005). Regulation 12 of SI 445 of 2000 provides as follows:

"The transmission system operator shall preserve the confidentiality of commercially sensitive information obtained by it in the discharge of its functions under these Regulations and the Act of 1999 unless required to disclose such information in accordance with law."

Regulation 24 of SI 445 of 2000 makes similar provision for the Distribution System Operator (DSO) which is ESB Networks.

SI 445 of 2000 and SI 60 of 2005 are not specified in the Third Schedule of the FOI Act. However, the question of whether the provision outlined above amounts to a prohibition on disclosure as envisaged by section 32 is conditional upon whether the records do indeed contain commercially sensitive information obtained in confidence. Arguably, this amounts to an exercise in discretion which might not equate to an unequivocal prohibition. I will examine the question of whether the information is commercially sensitive in the context of section 27 of the FOI Act later in my decision. In any case, I am satisfied that disclosure of information under the FOI Act is a disclosure "in accordance with law" and, therefore, I find that section 32 does not apply to prohibit any disclosure in this case.

Section 10(1)(a)
The CER has refused access to five records on the basis that section 10(1)(a) applies. These are described in the schedule prepared by the CER as "Specific Direction to connect Whitegen, Aghada, Viridian Huntstown, Tarbert and Great Island", reflecting the agreed revised scope of the request and have been numbered 76 - 80. I should explain at the outset that the FOI Act confers a general right of access to records held by public bodies. If the information sought is not contained in a record held by the public body, the FOI Act does not oblige public bodies to create records to satisfy or respond to the request.

Section 10(1)(a) of the FOI Act states:

"A head to whom a request under section 7 is made may refuse to grant the request if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."

In cases such as this, my role is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally my function to search for records that a requester believes are in existence. My Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.) which is available on my Office's website,www.oic.ie.

In its submissions to this Office, the CER stated that four of the five records sought did not exist as they had never been created. It said that only one record had existed but cannot now be found. According to the CER, it carried out searches of all current and historic systems, relevant emails, paper files and available hard copy notes. It also suggested that the information in question may have formed part of a wider decision of the CER. It seems to me from the submissions of the parties that it is possible that the specific directions sought would have been communicated to EirGrid by the CER. The applicant suggested that the information should have been sought by CER from EirGrid. However, as EirGrid is not a public body for the purposes of the FOI Act, the request could not be transferred to them and there is nothing in the FOI Act to oblige the CER to seek the information from whatever other entity might hold it. The applicant pointed out that queries raised by it in its request to the CER had not been addressed. As set out above, the FOI Act provides for a general right of access to records held by a public body, but does not oblige public bodies to create records in response to a request.

Having considered the submissions of the applicant and the CER, I am satisfied that the records sought do not exist or cannot be found after all reasonable efforts have been made to search for them. I find that section 10(1)(a) of the FOI Act applies to records 76-80.

Section 22(1)(a)

The CER refused access to records 83 and 86 on the basis that section 22(1)(a) applies. Section 22(1)(a) provides that : "A head shall refuse to grant a request under section 7 if the record concerned - (a) would be exempt from production in proceedings in a court on the ground of legal professional privilege" . I accept that legal professional privilege enables the client to maintain the confidentiality of two types of communication:
confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
Unlike most other provisions of the Act, section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest. Having examined these records, I am satisfied that they are communications between a client and its legal adviser for the purpose of obtaining legal advice and that, therefore , the first limb of legal professional privilege (advice privilege) is satisfied. I find that the records are exempt under section 22(1)(a).

Section 27
The CER refused access to all or parts of records 19, 46, 57, 58, 59, 63, 65, 66, 72 and 73 on the basis that section 27 applies. Although I cannot give details about the content of the records, it is fair to describe them as containing detailed technical and financial data on various projects.

Section 27 (1) provides that

" Subject to subsection (2), a head shall refuse to grant a request under section 7 if the record concerned contains .....

(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or

(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."

Section 27(1)(b) protects information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in the first part of this section is not the nature of the information but the nature of the harm which might be occasioned by its release. In order for the exemption to apply, it is necessary for the harm and the reasonableness of the expectation that the harm could arise from the release of the information under FOI to be identified.

In case number 98049 (on www.oic.gov.ie), the former Commissioner, the late Mr. Kevin Murphy, set out his view on the standard of proof needed to meet the test for the second part of this section to apply:

"However, I am conscious that the only requirement which has to be met in this case is that disclosure "could prejudice the competitive position" of the person concerned. In my view the standard of proof necessary to meet this test is considerably lower than the standard required to meet the test of "might reasonably be expected to."

Section 27(1)(c) protects information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it could do so. Having said that, I would expect that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and to explain how exactly the disclosure could prejudice the conduct or outcome of such negotiations.

In its submissions, the CER set out in respect of each record why it considers the information to be commercially sensitive together with its view of the potential implications of the release of the information. The issues raised are relevant to section 27(1)(b). The position of the CER is that the records contain information on various capital works projects, including expected delivery dates of relevant network reinforcements and financial information on projects. It contended that the release of such information would reveal to competitors financing and build strategies for companies involved in the projects as well as indicating the funding available to these companies. It argued that release of the financial information could allow for distortion of the competitive process in the market and allow competitors an insight into the position of the companies, as the entry of each individual new generator will alter the market position of others. According to the CER, some of the information was only provided to it on the basis that it would be kept confidential and not published or otherwise released to the public, as it was considered that release of the information would materially disadvantage certain parties. It further argued that the CER would not normally hold this type of information. It said that it obtained the details from Eirgrid in the context of efforts to understand delays in projects. I accept that even where the information is several years old, there is an inherent competitive advantage in knowing the plans of competitors in a market such as energy generation, where planning and regulatory frameworks can contribute to long lead in times for projects.

I have also considered the submissions of Eirgrid and ESB Networks insofar as they are relevant to the remaining records under review.

Having considered the submissions of the CER and third parties, where relevant, and examined the records at issue, I am satisfied that section 27(1)(b) applies to the redacted information in record 19, Appendix 1 only of Record 46, parts of records 63 and 65, the questions only in record 57, all of record 58, all of record 59, record 66 attachment only and records 72 and 73.

The CER has claimed that section 27(1)(c) applies to records 63 and 65 (identical content), on the basis that the record contains information on a project related to the development of an electricity connection between Ireland and Britain. While it seems that particular project did not proceed at that time, the CER informed this Office that it understands that the project remains "live" for the company involved. It said that release of the records would reveal information on the company's plans and views on relevant matters and could put the company at a disadvantage in future contractual negotiations in this context, where it would be competing for access and funding. Having considered the content of the records and the arguments put forward, I accept that the conduct or outcome of contractual or other negotiations could be prejudiced if certain information was released. I am satisfied that section 27(1)(c) applies to the remaining parts of records 63 and 65.

Section 27(2) provides for the release of information to which section 27(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 27(2) arise in this case.

Having found that section 27(1)(b) and/or 27(1)(c) applies, section 27(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies as to how they conduct their business. I am aware that the CER publishes information on its activities on a regular basis, that it fulfils a statutory role as a regulator and that the development of electricity generating installations is subject to planning legislation requirements. I accept, however, that there is a legitimate public interest in entities being able to submit information to public bodies about commercial plans and specifications without suffering commercially as a result. I also note that no direct payment from public funds appears to have accrued to the parties mentioned in the records, unlike, for example, a successful tenderer in a tender competition. Having considered the matter, I am satisfied that the public interest in openness and accountability and in the public knowing how the CER carries out its functions is served to some extent by the release of the information in records already released, including redacted versions of some of the records, and by the statutory requirements placed on the CER and in the planning legislation for public consultation. In the circumstances of this case, I conclude that, on balance, the public interest would not be better served by the release of the redacted information to which section 27(1)(b) and/or 27(1)(c) applies to the extent that overriding the commercial sensitivity of that information would be justified and I find accordingly.

It could be argued that certain elements of the records have been put into the public domain previously and that parts of these records could be released. However, I consider that extracting certain parts, e.g. figures or dates out of context, would be misleading and therefore not appropriate in this case taking account of the provisions of Section 13 set out above.

Section 26
The CER has claimed that section 26(1)(a) applies to records 19, 46, 57, 58, 59, 63, 65, 66, 72 and 73. As I have found that section 27(1)(b) or 27(1)(c) applies to all or part of records 19, 46, 57, 58, 59, 63, and 65, it is not necessary for me to deal with the application of section 26(1)(a) to those records. Therefore, I need only consider the application of section 26(1)(a) to part of record 46 and to record 57.

Section 26(1)(a) provides that:

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if-

(a) the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body,".

For section 26(1)(a) to apply, there are four separate requirements to be satisfied:

• that the information was given in confidence, and
• that the information was given on the understanding that it would be treated as confidential, and
• that the disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons in the future, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

 

The approach adopted by this Office is that all four of these tests must be satisfied in order for a record to be considered exempt from release under this section of the FOI Act.

In its submissions, the CER has set out how it considers the tests to be met. It has stated that the information was given to the CER in confidence on the understanding that it would be treated as confidential. It has also outlined the importance to the CER of receiving the information in these records to it in carrying out its role and the potential difficulties for the CER if parties providing the information were to curtail the information given due to concerns about its potential release under FOI. I accept that there is information in the records, the disclosure of which is likely to prejudice the giving to the CER of similar information in the future and that it is important to the CER that it continue to get this information. However, I am satisfied that any such information has already been found to be exempt from release under section 27 above. I do not accept that the third and fourth tests are met with regard to the information in Records 46 and 57 for which the section 26 exemption has been claimed and which has not already been found to be exempt under section 27. The relevant material in Record 46 is a description of the type of information found in the Appendix to record 46, but no actual information is contained in the narrative, nor does the narrative contain any analysis or commentary on the information. The description of record 57, in the schedule provided by the CER, is such that release of the material not otherwise exempt under section 27 merely confirms the description. I am satisfied that section 26(1)(a) does not apply to those parts of records 46 and 57 not otherwise exempt from release under section 27, and I find accordingly.

Section 28
The CER refused access to one paragraph in record 85 on the basis that it contains personal information.

Section 28(1) of the FOI Act provides:

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information".

The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Having examined the information at issue, I am satisfied that it is personal information of an identifiable individual, and that section 28(1) applies to exempt it from release.

There are some circumstances, provided for at section 28(2), in which the exemptions at section 28(1) do not apply. I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 28(2) does not apply to the withheld information.

I turn now to section 28(5) which also provides for exceptions to the section 28(1) exemption. I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 28(5)(b) does not apply in this case. Section 28(5)(a) recognises a public interest in protecting privacy rights. The right to privacy also has a constitutional dimension. Release of a record under FOI may be regarded as release to the world at large as records are released without any restriction as to how they may be used. Having reviewed the information, I am not satisfied that the public interest served by the disclosure of other parties' personal information would, in this instance, be of sufficient weight so as to displace the public interest served by upholding the right to privacy of the individuals concerned. I find that section 28(1) applies to the personal information contained in the record and direct that the redacted information be withheld.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the CER and find that section 10(1)(a) applies to records 76-80; that section 22(1)(a) applies to records 83 and 86; that section 28 applies to the redacted part of record 85; and that section 27 applies to the redacted information in record 19, Appendix 1 only of Record 46, the questions only in record 57, records 58, 59, 63, 65, 72, and 73, and to record 66 attachment only. I find that section 26(1)(a) does not apply to any parts of records not otherwise exempt. I direct the release of any records or parts of records not found to be exempt i.e. record 46 apart from the appendix, record 57 apart from the questions, and record 66 apart from the attachment.

Riight of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Peter Tyndall
Information Commissioner