Case Number: 160220

Whether EirGrid was justified in refusing access to a Legal Services Consultancy Agreement and three related records on the basis that the records fell within Schedule 1, Part 1 (i) of the FOI Act or on the basis that the records are exempt from release under sections 31(1)(a), 35(1)(a), 35(1)(b), 36(1)(b), 36(1)(c), and 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by the Senior Investigator, Elizabeth Dolan, who is authorised by the Information Commissioner to conduct this review

Background

On 7 December 2015, the applicant made an FOI request to EirGrid for the following records:

1. A copy of the 2011'Legal Services Consultancy Agreement' (the Agreement) between EirGrid and ESB;
2. Correspondence between EirGrid and ESB in relation to the Agreement which describes the reasons for and/or the reasoning behind the Agreement;
3. Records regarding all payments made by EirGrid to ESB (or ESB to EirGrid) for legal services under the Agreement since the date of the Agreement;
4. Records regarding the public procurement and/or tender process used by EirGrid for the acquisition of the legal services/consultancy provided for under the Agreement;
5. Records in relation to the number of in-house solicitors employed by EirGrid together with their qualifications and salaries.

The sequence of events surrounding the decision making is complicated. On 29 December 2015, EirGrid informed the applicant that it was considering release of the records in the public interest. EirGrid stated that as the records contain material which may affect a third party's interests if released, it was required to provide the third party with an opportunity to make submissions before coming to a decision. It is clear from the request that the third party is ESB. On 15 January 2016, EirGrid advised ESB of its entitlement under section 38 of the FOI Act to make submissions in relation to access to the records. On 5 February 2016, ESB made submissions to EirGrid in which it argued that the Agreement contained personal information which should be redacted prior to release. It argued that the records may also contain legally privileged or confidential information. ESB also identified a list of 17 records relevant to part two of the applicant's request.

On 17 February 2016, EirGrid refused access to parts one and two of the applicant's request on the basis that the records contain legally privileged information. EirGrid stated that it was fully granting part three of the request and it provided the applicant with a table listing the total payments for the years 2011 to 2014. EirGrid stated that it was fully granting part four of the applicant's request. It provided him with a "Context Note" explaining the process by which the Agreement came about. Finally, EirGrid stated that it was partially granting part five of the applicant's request. It provided the applicant with a list which showed the number of in house solicitors working in EirGrid and their qualifications. EirGrid refused to release individual salaries on the basis that this information was personal.

On 22 February 2016, the applicant applied directly to this Office for a review on the basis that the decision was one to which section 38 of the Act applied. On 11 March 2016, this Office informed the applicant that section 38 did not apply as EirGrid had refused certain records on the basis of legal professional privilege. In relation to the other exemptions cited, it was not at all clear that EirGrid had been considering release of the records in the public interest having formed the view that they were exempt under sections 35, 36 or 37 as required by section 38. The applicant was informed that he could request an internal review of the decision. On 30 March 2016, the applicant requested an internal review of EirGrid's decision. On 26 April 2016, EirGrid upheld its original decision. On 6 May 2016, the applicant applied to this Office for a review of EirGrid's decision.

In its submissions to this Office, EirGrid sought to rely on additional grounds in support of its decision. EirGrid argued that all of the records requested should be refused on the basis that they fall within the exclusion in Schedule 1, Part 1(i) of the FOI Act. EirGrid also argued that the Agreement and related correspondence are commercially sensitive and confidential. This Office informed the applicant of EirGrid's additional submissions. In response, the applicant argued that the additional grounds relied on by EirGrid were not applicable to the records requested. This Office also provided ESB with an opportunity to make a submission. In its submission, ESB argued that the records contain personal information, commercially sensitive information and confidential information.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between EirGrid and the applicant, to correspondence between EirGrid and this Office, to correspondence between ESB and EirGrid, to correspondence between ESB and this Office (although this review is not one to which section 38 of the Act applies) to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act 2014.

Scope of Review

In his submissions to this Office, the applicant complains that EirGrid failed to provide him with an adequate schedule listing all records which fall within the scope of his request. The applicant states that while EirGrid refused to release records relevant to part two of his request, it did not list any records relevant to part two on the schedule provided to him. The applicant states that EirGrid agreed to fully grant part three of his request; however, he says that he was not provided with actual records of payments such as invoices which fall within the scope of his request. The applicant states that the only record released under part four of his request was a 'context note' specifically prepared to explain how EirGrid entered the Agreement with ESB. According to the applicant, the 'context note' states that at the time of entering into the Agreement, EirGrid obtained expert external procurement advice. He argues that this advice falls within the scope of part four of his request.

The Investigator wrote to EirGrid and asked it to identify all records falling within the scope of the applicant's request. EirGrid provided this Office with a revised Schedule listing additional records. EirGrid identified six emails which relate to the Agreement. Three of the emails are correspondence between EirGrid and ESB and fall within the scope of part two of the applicant's request. The other three emails are internal emails between EirGrid staff and fall outside the scope of the applicant's request. Some additional records also came to light during the course of the review and I deal with those separately below. The scope of this review is confined to the following issues:

• Whether EirGrid is a public body in respect of the records requested by the applicant having regard to the exclusion in Schedule 1, Part 1 (i) of the FOI Act;
• Whether EirGrid has justified its decision to refuse to release the Agreement and three emails related to the Agreement on the basis that they are exempt under sections 31(1)(a), 35(1)(a), 35(1)(b), 36(1)(b), 36(1)(c) and 37(1) of the FOI Act.

Preliminary Matters

Handling of the Request and Review
I must say here that I am disappointed with EirGrid's handling of this case. Apart from the confusion about whether this was a case to which section 38 of the Act applied, I find it difficult to understand how records clearly falling within the scope of the request were only considered relevant when queries were raised by this Office in the course of the review.

Section 18
Section 18 of the 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, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 22(12)(b)
Section 22(12)(b) of the FOI Act provides that a decision to refuse a request shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on EirGrid to satisfy the Commissioner that its decision to refuse access to the records was justified.

Section 25(3)
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Analysis and Findings

Additional Records
As noted above, additional records came to light during the course of the review. In a letter to EirGrid, the Investigator noted that while ESB had listed 17 records as being relevant to part two of the applicant's request, these records were not listed on the revised schedule provided to this Office by EirGrid. In response, EirGrid stated that this was an administrative error and it acknowledged that these records are in fact relevant to part two of the applicant's request. EirGrid did not provide copies of the 17 records to this Office. The Commissioner is not generally the 'first instance" decision maker on records held by an FOI body. I have decided to annul what was effectively a decision to withhold those records and direct EirGrid to undertake a fresh decision making process in respect of the 17 additional records, this decision which will be subject to the same rights of review and timelines applicable to the original request.

In relation to part three of the applicant's request, EirGrid states that it will provide any invoices regarding payments made by EirGrid to ESB for legal services under the Agreement since the date of the Agreement until the date of the request. EirGrid says that it has begun the process of retrieving these records from offsite storage. I understand that, to date, these records have not yet been provided. If the records have not been released to the applicant by the date of this decision, I find that they or any parts withheld should be the subject of a fresh decision making process under section 13 of the Act along with the 17 'Part Two' records dealt with above.

In relation to part four of the applicant's request, EirGrid states that no procurement/tender process took place in advance of the 2011 Agreement. It states that the procurement advices mentioned in the context note refer to an earlier Transfer Agreement and not the Legal Services Consultancy Agreement. I have no reason to dispute this. I accept that procurement advices in relation to the earlier Transfer Agreement fall outside the scope of the applicant's request.

Schedule 1, Part 1(i) of the FOI Act

Schedule 1, Part 1 of the FOI Act contains details of bodies that are partially included for the purposes of the Act, and also details of certain specified records that are excluded or, in some cases, included. If the records sought come within the description of the exclusions in Part 1, then the Act does not apply and no right of access exists. Schedule 1, Part 1 (i) provides that section 6 does not include a reference to:

"(i) EirGrid plc, other than insofar as it relates to records held by it relating to its functions under its Transmission System Operator (TSO) licence granted under section 14(1)(e) of the Electricity Regulation Act 1999."

EirGrid argues that the records requested by the applicant do not relate to its functions under its TSO licence and the FOI Act does not apply to these records. Condition 3 of the TSO licence lists Eirgrid's general functions:

1. The Licensee shall:
"(a) operate and ensure the maintenance of and, if necessary, develop a safe, secure, reliable, economical and efficient electricity transmission system as part of an efficient, economical, co-ordinated, safe, secure and reliable electricity transmission system on the island of Ireland as a whole... and
(b) ensure the availability of all ancillary services which are necessary for the Licensee to carry out its functions in paragraph (a) insofar as this availability is independent from any other transmission system with which it is interconnected..."

Paragraphs (c) to (w) list the remainder of EirGrid's functions including planning for the long term ability of the transmission system to meet reasonable demands for the transmission of electricity.

The applicant argues that EirGrid has entered into the Agreement with ESB to allow it use ESB's in-house solicitors to act for it in any legal action taken to ensure the maintenance of the electricity transmission system. The applicant argues that if EirGrid was unable to access lands to maintain an electricity line, EirGrid could instruct ESB, via the Agreement, to issue court proceedings so that EirGrid can maintain the transmission system. The applicant submits that the Agreement and the related records clearly relate to EirGrid's functions under its TSO licence.

EirGrid submits that the Agreement and related records arise in the context of provision of legal services that fall most particularly under condition 3(a) "operate and ensure the maintenance of and, if necessary, develop a safe, secure, reliable and efficient electricity transmission system." EirGrid argues that there was no particular obligation on it related to its functions under the TSO licence to put in place the precise arrangements to deal with the legal issues arising under the carrying out by EirGrid of the function under condition 3(a). It submits that the provision of legal services and legal work carried out by EirGrid is not sufficiently closely connected with its functions to be considered "related to" the functions; rather, the provision of legal services to EirGrid is resulting from the performance and carrying out of the functions of EirGrid, and is therefore incidental.

"Relates to"
The phrase "relates to" was interpreted by the High Court in EH v. The Information Commissioner [1999] 2 I.R. 463, albeit in the context of personal information. In his decision, O'Neill J. held as follows:

"In my view the test to be applied to determine whether or not a record "relates to" is that which is postulated by Mr. O'Donnell at paragraph (a) above namely "whether there is a sufficiently substantial link between the requesters personal information (as defined in the act) and the record in question." I do not think one should go further than this in formulating a test in this regard."

In the context of this decision, the question to be determined is whether there is a "sufficiently substantial link" between the records requested and EirGrid's functions under the TSO licence. In considering this question it is appropriate to consider the services to be provided under the Agreement. I am limited by section 25(3) of the Act in the description which I can give of the services listed in the Agreement. I can say that schedule 1 of the Agreement provides for the provision of certain services "as may be required by EirGrid in relation to the Transmission System." I am satisfied that the legal services described in the Agreement are necessary to allow EirGrid to carry out its function of maintaining and developing the transmission system as required under the TSO licence. I find that the Agreement falls outside the exclusion in Schedule 1, Part 1 (i) of the Act.

As noted above, EirGrid provided this Office with three emails which are relevant to part two of the request. In these emails, the parties discuss certain services to be provided under the Agreement. The services discussed are directly relevant to EirGrid's functions under its TSO licence. I find that the three emails fall outside the exclusion in Schedule 1, Part 1 (i) of the Act. In lights of the findings in relation to parts three and four of the applicant's request, it is not necessary to consider whether these parts fall within the exclusion in Schedule 1, part 1(i).

In relation to part five of the applicant's request, I am not satisfied that there is a "sufficiently substantial" link between details of salaries paid to in-house solicitors in EirGrid and its functions under its TSO licence. I find that this part of the applicant's request falls within the exclusion under Schedule 1, Part 1 (i) of the Act.

I will now proceed to consider whether the exemption provisions relied on by EirGrid apply to those records that I have found are not excluded under Schedule 1, Part 1 (i) of the Act. (i.e. the Agreement and three related emails).

Section 31(1)(a) - Legal Professional Privilege
Section 31(1)(a) provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of Legal Professional Privilege (LPP). LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal advisor for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal advisor or the professional legal advisor 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)

There are some situations in which LPP may not attach to communications between lawyer and client, for example: non-confidential communications; legal assistance other than the giving of advice, and communications in furtherance of a criminal offence. The LPP exemption contains no public interest balancing test.

The applicant submits that the Agreement describes the terms under which one body provides services to another body in return for payment. He argues that the Agreement would not be exempt from production in court proceedings and does not fall within the categories of records covered by section 31(1)(a).

EirGrid submits that the Agreement and related correspondence are exempt under section 31(1)(a) of the Act on the basis of legal advice privilege and litigation privilege. EirGrid argues that the Agreement and related correspondence form part of a sequence and continuum of correspondence the primary purpose of which is "intimately" connected with the seeking and giving of legal advice. EirGrid states that the lawyers providing the services framed the Agreement in a manner to ensure the appropriate management of the legal services required. It argues that the lawyers were under a duty of care to ensure that Agreement was suitable and appropriate to deal with litigation and other legal services required. According to EirGrid, the Agreement sets how legal issues will be managed, it submits that if this information was released it would indicate to third parties how certain cases would be dealt with.

EirGrid also argues that the dominant purpose of the Agreement relates to litigation which is in the contemplation of both the client (EirGrid) and the lawyers (ESB). It argues that the services to be provided in the Agreement are clearly services to be provided in contemplation of legal proceedings, albeit not any specific legal proceedings.

Correspondence in relation to the Agreement
The correspondence in relation to the Agreement consists of the following three emails:

i. Email from EirGrid to ESB 26/7/10 at 9:39 re Legal Services Consultancy Agreement;
ii. Email from ESB to EirGrid 27/7/10 at 12:27 re Legal Services Consultancy Agreement;
iii. Email from ESB to EirGrid 18/8/10 at 15:15 re Legal Services Consultancy Agreement.

Emails (i) to (iii) were sent between in-house legal advisors in EirGrid and ESB. In Case 020281 (Mr. X and the Department of Education and Science),the former Commissioner found that the fact that a professional legal advisor may be employed as an in-house legal advisor did not prevent privilege being attached to the communications at issue. The former Commissioner also considered records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of communications regarding the giving or receiving of legal advice. She referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed..), Butterworths, 1996, at pp. 521-522]:

"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317; [1988] 2 All E.R.., 246, CA.] ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the parties; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach."

I consider it reasonable to treat emails one and two as containing information passed between solicitor and client the aim being to keep both informed so that advice may be sought and given. I am satisfied that emails (i) and (ii) form part of a continuum of correspondence that resulted from an original request for legal advice. I find that EirGrid has justified its refusal of access to emails (i) and (ii) on the basis of section 31(1)(a) of the Act. Email (iii) does not concern the passing of information so that advice may be sought or given. I find that email (iii) is not exempt under section 31(1)(a).

The Agreement
The Agreement sets out the terms under which ESB agrees to provide legal services to EirGrid. It lists the services to be provided, the fees to be charged and the terms of engagement etc. The fact that a record concerns legal services is not a sufficient basis on its own to determine that the record is legally privileged. I am not satisfied that the Agreement can be categorised as a confidential communication made between a client and his/her professional legal advisor for the purpose of obtaining and/or giving legal advice. It seems to me that the Agreement is the end product of communications between the parties. Neither am I satisfied that it comprises information passed between the parties as part of a continuum as envisaged in Balabel v Air India referred to above.

In relation to the claim for litigation privilege, I cannot accept that the dominant purpose for the creation of the Agreement is apprehended or threatened litigation. Even if I was to accept that it was created for such a purpose, it seems to me that at a minimum, an equal purpose for the creation of the Agreement was the setting out of terms under which ESB agrees to provide legal services to EirGrid. In making a claim for litigation privilege, I would expect that a public body would be able to point to a specific set of proceedings apprehended or threatened for which this record was prepared which has not been determined or to closely related litigation. I reject EirGrid's argument that the fact that various litigation has taken place since the Agreement was made is enough to find that the document was brought into existence for preparation for litigation apprehended or threatened. I am consider that, following the judgment of Finlay Geoghegan J. in University College Cork (NUI) v. ESB [2014] IEHC 135, EirGrid has not discharged the onus of establishing that litigation privilege applies.

In summary, I find that EirGrid has justified refusal of access to emails (i) and (ii) under section 31(1)(a). It has not justified refusal of access to email (iii) or to the Agreement under section 31(1)(a). I consider below whether the remaining exemption provisions relied on by EirGrid apply to the Agreement and email (iii).

Section 35 - Confidential Information
Section 35(1)(a) provides a mandatory exemption for certain records containing information given to an FOI body in confidence. A number of conditions must be met in order for the exemption to apply. Section 35(1)(a) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request (section 35(3) refers). Section 35(1)(b) provides an exemption for records whose disclosure would result in a breach of a duty of confidence provided for by a provision of an agreement, or enactment or otherwise by law.

EirGrid submits that disclosure of the Agreement would result in a breach of a duty of confidence provided for in the provision contained in the Agreement "all the information contained in this document is confidential and must not be disclosed to any party without the prior consent and authority of both parties." ESB argues that the Agreement is confidential and is exempt under section 35(1)(a).

Section 35(2) provides that the confidentiality exemption at subsection (1) shall not apply to a record which is prepared by a member of staff of an FOI body or a service provider in the course of the performance of his or her functions unless disclosure of the information would constitute a breach of a duty of confidence which is owed to a person other than the FOI body or service provider. Section 2 of the Act defines a service provider as "a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services". Contract for services includes an administrative arrangement.

As section 35(1) does not apply where the records fall within the terms of section 35(2), section 35(2) should be considered at the outset. In the case of The Health Service Executive v. The Information Commissioner [2009] 1 IR 700 McMahon J. stated that it was logical to consider the provisions of what is now section 35(2) and its application to the facts of the case first as, if this subsection applied, it would be unnecessary to consider the arguments based on what is now section 35(1).

I note that ESB is not an FOI body although ESB Networks Limited is a "partially included agency" in relation to certain records. I am satisfied that, at the time the request was made, ESB was providing legal services to EirGrid under a contract for services or similar arrangement. I am satisfied that the Agreement and email (iii) were prepared by legal advisors in ESB in the course of the performance of their functions and disclosure of the information contained in them would not constitute a breach of a duty of confidence owed to a party other than EirGrid or ESB. I am satisfied that section 35(2) applies to the Agreement and email (iii). Accordingly, I find that the Agreement and email (iii) are not exempt under section 35(1)(a) or 35(1)(b) of the Act.

Section 36 - Commercially Sensitive Information
Section 36(1) provides a mandatory exemption for commercially sensitive information. It applies to a record containing:

(a) trade secrets of a person other than the requester concerned,
(b) financial, commercial, scientific, or technical or other information the disclosure of which could reasonably be expected to result in a material financial loss or gain to the person to whom it relates or could prejudice the competitive position of that person,
(c) Information the disclosure of which could prejudice the conduct or outcome of negotiations of that person.

Section 36(2) provides for various exceptions to section 36(1). Section 36(3) provides that Section 36(1) is subject to a public interest balancing test. The Commissioner takes the view that a party seeking to rely on 36(1)(b) would be able to show the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the records at issue. A party seeking to rely on 36(1)(c) should be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

The applicant states that it is clear from information released to date, that EirGrid has made substantial payments to ESB under the Agreement. He submits that there is a strong public interest in openness and accountability in the use of public funds.

EirGrid argues that the Agreement and related correspondence are commercially sensitive, in particular it argues that schedule 1 which contains the services to be provided; and schedule 2 which contains information in relation to fees, hourly rates, and terms of payment are "highly commercially sensitive" and are exempt under sections 36(1)(b) and 36(1)(c) of the Act. ESB argues that the consequence of release would be to reveal ESB's working arrangements with EirGrid on legal matters within the scope of the Agreement and confidential rates payable for services provided thereunder. It argues that there is a strong public interest in protecting commercially sensitive information which may affect future tenders from ESB to the market for external legal services.

I accept that ESB negotiates legal fees with external providers of legal services and releasing details of hourly rates charged by ESB's in-house legal team could reasonably be expected to result in a material financial loss to it in terms of what external providers might charge. I am satisfied that the information contained in schedule 2, bullet point 2 in relation to "hourly rates" and bullet point 8 in relation to "fees for counsel" are exempt under section 36(1)(b). I am not satisfied that either EirGrid or ESB have explained why the remainder of the Agreement is commercially sensitive. The High Court decision in Westwood Club v The Information Commissioner [2014] IEHC 375 makes it clear that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list parts of the record and say that they are commercially sensitive. The FOI Body or third party opposing release should explain why disclosure of the particular parts could reasonably be expected to prejudice their competitive position. I find that, with the exceptions mentioned above, EirGrid has not justified its decision that the remainder of the Agreement and email (iii) are commercially sensitive and are exempt under section 36.

Section 36(3) the Public Interest
As I am satisfied that parts of the Agreement are commercially sensitive, it is necessary to consider whether it is in the public interest to release those parts. Section 36(3) provides:

"Subject to section 38, subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request."

The Commissioner accepts that there is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result and it is this public interest which section 36(1) seeks to protect. The Act also recognises, both in its long title and its individual provisions, that there is a significant public interest in government being open and accountable. The Commissioner takes the view that, in attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, it is legitimate to consider the positive public interest which is served by disclosure and also the harm that might be caused by disclosure.

Where records relate to the expenditure of public money, the Commissioner takes the view that there is a strong public interest in openness and accountability in the use of public funds. EirGrid states that it is funded by charges including Transmission Use of System (TUS) Charges and it is not funded by the exchequer. I note that records already released to the applicant disclose total legal fees paid under the Agreement. EirGrid has also agreed to provide the applicant with copies of any invoices regarding payments made by EirGrid to ESB for legal services under the Agreement. I am satisfied that the public interest in openness and transparency has been met to some extent by material already released and to be released to the applicant. I find that, on balance, the public interest would be better served by refusing access to those parts of schedule 2 identified above.

Section 37 - Personal Information
Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester.

ESB submits that the names of its staff which appear in the Agreement and the related e-mail correspondence, constitutes personal information which is exempt under section 37(1) of the Act. ESB states that that while ESB Networks Limited is a partially included agency under Schedule 1, Part 1 (j) of the FOI Act, the Agreement was entered into by ESB itself which is an exempt agency listed under Schedule 1, Part 2 of the Act. It argues that for the purposes of section 2(1) of the FOI Act, these individuals are not staff of an FOI body because they are not staff of ESB Networks Limited in its capacity as the licensed distribution system operator.

The definition of personal information contained in section 2 of the Act does not include:

(ii) in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service.

Section 2 of the Act also defines a "service provider" as follows:

"Service provider means a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI Body under a contract for services and contract for services includes an administrative arrangement between an FOI body and another person"

I am satisfied that at the time the request was made, ESB provided legal services to EirGrid in accordance with the terms of the Agreement. I find, therefore that the names of its staff, contained in the Agreement and email (iii), do not constitute personal information and that EirGrid has not justified its refusal of access to them.

Decision

I vary EirGrid's decision. I find that, with the exception of one part of the request, the records requested do not fall within Schedule 1, Part 1 (i) of the Act. I find that section 31(1)(a) applies to exempt emails (i) and (ii) described above. I find that section 36(1)(b) applies to exempt bullet point 2 in relation to "hourly rates" and bullet point 8 in relation to "fees for counsel" which are contained in schedule 2 of the Agreement. I direct release of the remainder of the Agreement and one record related to the Agreement. I further direct that a fresh decision making process be undertaken in relation to 17 records which came to light during the review as well as invoice records which EirGrid agreed to release, if these have not already been released to the applicant.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator