Case Number: 170178

Whether Eirgrid was justified in its decision to grant access to correspondence relating to the North-South Interconnector or whether the records are exempt under sections 35 or 36 of the FOI Act

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

Background

By email dated 19 September 2016, a requester made an FOI request to Eirgrid for correspondence with a certain company about two wind farm applications. By email dated 23 September 2016 the requester clarified that he sought correspondence with the company in relation to the North-South Interconnector, which was likely to have been in connection with the two wind farm applications.

Eirgrid consulted with the applicant under section 38 of the FOI Act and issued a decision. Section 38 applies to cases where, at some stage in the decision making process, the public body has formed the view that the record(s) in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37) but that the record(s) should be released in the public interest. Where section 38 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest.

However, Eirgrid failed to apply the section 38 requirements correctly. Therefore on 7 February 2017, in Case No. 160574, this Office annulled Eirgrid's decision and directed it to conduct a new decision-making process which complied with the requirements of section 38. That new decision-making process is now the subject of this review.

On 28 February 2017, Eirgrid again consulted with the applicant under section 38. By letter dated 24 March 2017, the applicant objected to the release of certain records, on the ground that they were exempt under section 35(1)(b) of the FOI Act (confidentiality) and section 36 of the FOI Act (commercial sensitivity). By letter dated 6 April 2017, Eirgrid decided to grant access to some records and refuse access to the remaining records, under sections 35, 36 and 37 of the FOI Act. On 12 April 2017, the applicant applied to this Office for a review of Eirgrid's decision to grant access to four specified records.

In conducting my review, I have had regard to Eirgrid's decision on the matter; Eirgrid's communications with the requester, the applicant and this Office; the applicant's communications with Eirgrid and this Office; the content of the records under review, provided to this Office by Eirgrid for the purposes of this review; and the provisions of the FOI Act.

Scope of this Review

During the review, the Investigator clarified with the applicant the scope of its application for review. Having regard to this, my review is confined to certain extracts from Records 23 and 26 and all of Records 37 and 38 (the records). The question for me is whether Eirgrid was justified in granting access to the records, or whether they are exempt under sections 35 or 36 of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to make the following points. First, section 22(12)(a) of the FOI Act provides that when I review a decision to grant a request to which section 38 applies, there is a presumption that the refusal is justified unless the applicant "shows to the satisfaction of the Commissioner that the decision was not justified". Therefore, in this case, the onus is on the applicant to satisfy me that Eirgrid's decision is not justified.

Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach.

Finally, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records at issue is limited.

Analysis and Findings

Section 35 - Confidentiality

The applicant submits that section 35(1)(b) applies to the records, on the basis of three duties of confidence which apply, under an enactment and two agreements. Section 35(1)(b) provides:

"(1) Subject to this section, a head shall refuse to grant an FOI request if -

...
(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law."

Eirgrid's submissions

Eirgrid says that it did not consider the information contained in the records to comprise either confidential or commercially sensitive information and saw no other applicable exemption under the FOI Act.

The applicant's submissions

(i) Duty of confidence provided for by a provision of an enactment.

The applicant submits that Regulation 12(1)(a) of the European Communities (Internal Market in Electricity) Regulations 2000 S.I. No. 445/2000 as amended (2000 Regulations) applies. This provides:

"12. (1) Without prejudice to any obligation to disclose information in accordance with law to which it is subject, a transmission system operator -

(a) 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,".

Regulation 2 of the 2000 Regulations defines "commercially sensitive information" as "any matter the disclosure of which would materially prejudice the interests of any person".

The applicant says that Eirgrid is obliged to refuse to grant access to confidential information which it holds relating to the applicant. It says that such confidential information consists of any commercially sensitive information, being any matter the disclosure of which would materially prejudice the applicant's interests. It adds that it "has set out below its submissions as to why the release of the information concerned would materially prejudice its interests".

The submissions which the applicant sets out below say that the extracts from Records 23 and 26 are confidential information. They say that this is clearly reflected in the language of both parties and releasing this information, which is inconsequential to the public's understanding of the process, would damage the applicant's reputation, leading to a direct commercial impact to the applicant. They say that Records 37 and 38 contain references to small numbers of changes, which could prejudice two interconnector planning applications which are live, because they could create doubt or uncertainty, though unfounded, in the environmental impact statement and the environmental impact assessment.

(ii) Duty of confidence provided for by a provision of an agreement.

The applicant also submits that duties of confidence apply under two agreements. First, it submits that Eirgrid is obliged to preserve the confidentiality of commercially sensitive information held and/or obtained by it in the discharge of its functions as a transmission system operator, under Condition 20.1 of the transmission system operator licence granted to Eirgrid on 29 June 2016 CER/06/123 (the Licence). This provides:

"Condition 20 Restriction on Use of Certain Information

1. The Licensee shall preserve the confidentiality of commercially sensitive information held and/or obtained by it in the discharge of its functions as transmission system operator.
...
"commercially sensitive information" means any matter the disclosure of which would materially prejudice the interests of any person.".

Secondly, it submits that Eirgrid is obliged to treat the information as confidential under Clause 13.1 of the General Conditions of contract that apply to connection agreements with Eirgrid (General Conditions). This provides:

"13.1 Confidential Information

Each Party shall treat any and all information and data disclosed to it by the other Party in connection with the Agreement in any form whatsoever, and the Agreement itself, (the "Confidential Information") as confidential and proprietary, shall preserve the secrecy of the Confidential Information, shall not use the Confidential Information for any purpose other than solely in connection with the Agreement and shall use its reasonable endeavours to not permit any other person to so use or disclose any Confidential Information. In particular, but without limitation, the Customer shall not use or disclose any Confidential Information for the purpose of obtaining for the Customer or any Affiliate of the Customer or for any other person any contract or arrangement for the purchase or supply of electricity to any other person without the prior consent of the Company."

The applicant says that this applies to the agreement between its subsidiary wind farm and Eirgrid, to which the records relate directly.

Analysis & Finding

The applicant points to three claims of duties of confidence in support of its submission that section 35(1)(b) applies.

(i) Duty of confidence provided for by a provision of an enactment.

The 2000 Regulations are subject to any law to which Eirgrid is subject, which would include the FOI Act. The question I must address is whether the records contain commercially sensitive information obtained by Eirgrid in the discharge of its functions under the 2000 Regulations and the Act of 1999. As noted above, I am limited as to what I can say about the content of the records. Nevertheless, I can say this much: the extracts from Records 23 and 26 consist of three sentences in emails between the applicant and Eirgrid. They relate to arrangements for the sharing of certain data between Eirgrid and the applicant, in connection with a wind farm. Records 37 and 38 consist of email correspondence between Eirgrid and the applicant about wind farms and related legal proceedings.

I can see that the language used in the relevant sentences in Records 23 and 26 is informal. Yet this does not mean that their disclosure would "materially prejudice" the applicant's interests. Furthermore, the fact that they may be "inconsequential" to the public's understanding of the process is not relevant to whether their disclosure could materially prejudice the applicant's interests. Finally, I do not see how arrangements for sharing data constitutes "information obtained by" Eirgrid from the applicant - as opposed to the actual data that they were arranging to share. I do not consider that disclosing these extracts would materially prejudice the applicant's interests, or that these extracts are information obtained by Eirgrid.

The applicant says that the references in Records 37 and 38 to a small number of changes could create doubt or uncertainty in the environmental impact statement and the environmental impact assessment. Yet these references consist of information which Eirgrid itself imparted to the applicant and which Eirgrid does not consider to be commercially sensitive or confidential. I do not see how it can be classified as information obtained by Eirgrid from the applicant. Secondly and in any event, I do not believe that the applicant's fear of possible doubt or uncertainty demonstrates that disclosure would "materially prejudice" their interests. I believe that it would be open to the applicant to explain or clarify matters if that were necessary. I do not consider that disclosing this information would materially prejudice the applicant's interests, or that it is information obtained by Eirgrid.

On my reading, Regulation 12(1)(a) of the 2000 Regulations protects the confidentiality of commercially sensitive information which Eirgrid obtains from a third party in discharging its relevant statutory functions. However, it does not follow that all correspondence which flows between Eirgrid and a third party is covered by Regulation 12(1)(a). Having reviewed the records, I do not believe that they contain commercially sensitive information obtained by Eirgrid in the discharge of its functions under the 2000 Regulations and the Act of 1999. I do not consider that Regulation 12(1)(a) of the 2000 Regulations applies to them.

(ii) Duty of confidence provided for by a provision of an agreement.

(a) The Licence

The definition of "commercially sensitive information" in the Licence is the same as that under the 2000 Regulations. The question I must address is whether the records contain commercially sensitive information held and/or obtained by Eirgrid in the discharge of its functions as transmission system operator. As outlined above, I do not believe that the records disclose information which would materially prejudice the applicant's interests, as the applicant claims. I therefore do not accept that they contain "commercially sensitive information" to which Condition 20.1 of the Licence applies.

(b) The General Conditions

The applicant submits that the records consist of information and data disclosed by parties to the Agreement and therefore comprise confidential information under Clause 13.1 of the General Conditions. I must consider whether this is the case.

As noted above, the extracts from Records 23 and 26 communicate arrangements to exchange data. However, I do not consider that this amounts to information and data disclosed to Eirgrid by a party to the Agreement, for the purposes of Clause 13.1. Records 37 and 38 primarily concern a question put by the applicant to Eirgrid and Eirgrid's response to that question. I consider it noteworthy that Eirgrid does not consider this information to be commercially sensitive and/or confidential. Records 37 and 38 also contain two sentences in which the applicant provides updates on two wind farms. Yet these updates are from 2016. The fact that the matters concerned have moved on is publicly available information. I should add that Clause 13.2.1 of the General Conditions excludes from the definition of "confidential information" information which "at the time of disclosure or at any time thereafter is in, or becomes part of, the public domain other than through a breach of the provisions of this Clause 13.2.1". In the circumstances, I do not accept that the records can be said to comprise confidential information under Clause 13.1 of the General Conditions.

Having regard to the above, I find that none of the three duties of confidence applies to the records and therefore section 35(1)(b) does not apply in the circumstances.

Section 36(1) - Commercial Sensitivity

The applicant submits that sections 36(1)(b) and (c) apply to the records.

Section 36(1) provides, insofar as is relevant:

"Subject to subsection (2), a head shall refuse to grant an FOI request 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."

However, section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).

Eirgrid's submissions

As noted above, Eirgrid says that it did not regard the information contained in the records to comprise either confidential or commercially sensitive information.

The applicant's submissions

The applicant says that the extracts in Records 23 and 26 consist of "other information" and Records 37 and 38 consist of "technical information", both of which could reasonably be expected to result in a material financial loss to it or could prejudice its competitive position in the conduct of its business. Its reasons are those outlined above in the third paragraph of page 4 of this decision. As to section 36(3), the applicant submits that any information that creates doubt, uncertainty, confusion or avenues for attack increases the risk that permission for the North-South connector could be refused. The applicant says that delays to this project cost consumers €30m and rising. Finally, the applicant highlights that there are two sets of legal proceedings, to which one of the wind farms concerned is a notice party. The applicant says that a litigant in those proceedings was refused discovery of certain documents, on the basis that it was largely a fishing exercise. The applicant says that they are not aware of the identity of the requester in this FOI review, but believes that the Information Commissioner should be aware of the litigation and the judge's comments on discovery.

Analysis & Finding

Section 36(1)(b)

The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. I take the view that the test to be applied in this regard is whether the decision-maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b). The High Court decision in Westwood Club v The Information Commissioner [2014] IEHC 375 makes clear that it is not sufficient for the party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive.

I am not satisfied that the records under review contain information whose disclosure could either result in material financial loss to the applicant or which could prejudice its competitive position. I have described the content of the records in my discussion of section 35 above. First, I do not see how releasing the records could result in a material loss to the applicant. Secondly, while I have acknowledged that the standard of proof is lower in relation to the second limb of section 36(1)(b), even so, I do not see how releasing the records could prejudice the applicant's competitive position, given their content. The applicant's submissions on the public interest do not affect my view on this point. I find that section 36(1)(b) does not apply to the records.

Section 36(1)(c)

The Commissioner expects that a person seeking to rely on section 36(1)(c) 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 explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations. Where an FOI body is relying on this exemption for the refusal of a record, it must go on to consider the public interest and whether section 36(3) applies in relation to the record concerned.

In its submissions, the applicant does not point to any contractual or other negotiations which are in train or reasonably foreseen. Neither does the applicant explain how disclosing the records could prejudice any such negotiations. It simply asserts that the focus of section 36(1)(c) is on protecting information relevant to future activities, purchases, sales of assets or future development plans. Having regard to section 22(12)(a), I do not propose to consider this further, as the applicant has provided no reasons as to why or how section 36(1)(c) applies in the circumstances. I find that section 36(1)(c) does not apply to the records. In view of these findings, I am not required to consider section 36(2) or (3) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm Eirgrid's decision to grant access to the records under review. I find that neither section 35(1)(b) nor section 36(1)(b) or (c) applies to the records and that Eirgrid is justified in its decision to grant access to them.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator