Case Number: 170237

Whether ESBN was justified in its decision to refuse access to records relating to the transfer of lands in the applicant's name to the ESB for the purpose of building a sub-station on the ground that the FOI Act does not apply in respect of the records sought, pursuant to Schedule 1, Part 1(j) of the FOI Act

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

Background

The applicant submitted a request to ESBN on 17 February 2017 for access to all correspondence since 2002 held on file by the ESB in his name or that of his solicitor relating to the transfer of lands in his name to the ESB for the purpose of building a sub-station. On 2 March 2017 ESBN refused the applicant's request on the ground that the FOI Act applies only in so far as records concern its function under its Distribution System Operator (DSO) licence and that the records sought do not concern ESBN's functions under its DSO licence.

On 9 March 2017, the applicant sought an internal review of that decision, following which ESBN affirmed its original decision. The applicant sought a review by this Office of that decision on 12 May 2017.

In conducting this review, I have had regard to correspondence between ESBN and the applicant as outlined above, to the applicant's correspondence with this Office, and to communications between this Office and ESBN on the matter.

Scope of Review

This review is concerned solely with whether ESBN was justified in refusing access to records relating to the transfer of lands in the applicant's name to the ESB for the purpose of building a sub-station on the ground that the FOI Act does not apply in respect of the records sought.

Preliminary Matters

During the course of this review the applicant raised a number of concerns in respect of his dealings with the ESB over the years relating to the transfer of the land in question and related matters. This Office has no role in examining such matters. As I have outlined above, our role is confined to determining whether ESBN was justified in refusing access to the records sought in accordance with the provisions of the FOI Act.

Analysis and Findings

Section 6(2)(a) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details of the certain specified records that are included or excluded. If the records sought do not come within the description of the records that are included, then the Act does not apply and no right of access exists.

Schedule 1, Part 1(j) provides that ESB Networks Limited (now ESB Networks DAC) is not a public body for the purposes of the FOI Act other than insofar as it relates to records concerning its functions under its DSO licence issued under section 14(1)(g) of the Electricity Regulation Act 1999. In other words, if the records sought do not concern ESBN's functions under its DSO licence, then no right of access exists under the FOI Act. It is also important to note that ESB is specifically included in Schedule 1, Part 2 as an exempt agency, i.e. the FOI Act does not apply to ESB.

In a submission to this Office, ESBN stated that the acquisition and management of sites used by ESB for the installation of, and the subsequent installation and maintenance of, distribution sub-stations are functions of ESB in its capacity as the licensed Distribution Asset Owner (DAO) for Ireland. It stated that while the carrying out of these functions by ESB networks business unit staff (ESB staff) is managed by ESBN, it does so in its capacity as ESB's asset manager under an Asset Management Agreement which was put in place under regulatory arrangements relating to the transmission and distribution networks in Ireland approved by the Commission for Regulation of Utilities.

In simple terms, ESBN argued that records concerning the installation and maintenance of substations relate to ESB's functions as the licensed distribution asset owner and not to ESBN's functions as the distribution system operator. Having regard to ESBN's explanation as outlined above and to the nature of the records sought by the applicant, I accept that the records cannot be regarded as concerning the functions of ESBN under its DSO licence. I find, therefore, that ESBN was justified in its decision to refuse the applicant's request on the ground that the FOI Act does not apply in respect of the records sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of ESBN in this case.

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

Stephen Rafferty
Senior Investigator