Case number: 170337
25/05/2018
On 23 March 2017, the applicant sought access to records relating to the construction of an electricity transmission line in County Westmeath, as follows:
The contract and/or terms of engagement between Eirgrid and Atkins Consulting Engineers (Atkins), the successful tenderer for the project
All tender documents and associated correspondence submitted to Eirgrid by Atkins in respect of the project
The Eirgrid decision to engage Atkins, including all records, minutes of meetings, emails and letters which informed that decision
The Project Agreement and associated documents, including the Project Implementation Plan and the Committed Project Parameters
The Authorisation of a named person to serve Wayleave Notices to landowners for the project
Records, including but not limited to emails, letters minutes of meetings, notes, diagrams, and memos, between Eirgrid and another company (Company X) in relation to the project
Records which describe the total cost of the project and any breakdown thereof
EirGrid's decision on 11 May 2017 part-granted his request. It relied on sections 36 and 37 of the FOI Act to withhold access to information which it considered to be commercially sensitive or to comprise the personal information of third parties.
The applicant sought an internal review as he was of the view that additional relevant records should exist, and that the records withheld on the basis of section 36 should be released in full. EirGrid's internal review decision identified and granted access to some additional records and withheld the remainder in full or in part on the basis of sections 36 and 37.
The applicant applied to this Office for a review of EirGrid's decision on 3 July 2017.
I have decided to bring this review to a close by way of a formal, binding decision. In conducting this review, I have had regard to the correspondence between EirGrid and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and EirGrid, as well as the contents of the records concerned. I have also had regard to submissions made to this Office by Atkins and the ESB.
In its internal review decision, EirGrid identified 39 records as falling within the scope of the applicant's request. I shall use its numbering scheme set out in the document schedule provided to this Office for ease of reference. It granted access to 24 records in part (records 2, 13-20, 22-24, 26, 28-30 and 32-39) and refused access to 15 records in full (records 1, 3-12, 21, 25, 27 and 31).
During the course of the review, this Office's Investigator asked EirGrid to clarify some matters relating to the records concerned and I note that it confirmed the following:
record 2 and record 34 are the same record which was duplicated in error; record 14 was released in full to the applicant in error and records 4, 6, and 8 are all the same documents. EirGrid also confirmed to this Office that a number of attachments (to records 20, 26/27 (same attachment), 32/33 (same attachment) and 35) had been withheld in error. It undertook to release these to the applicant, and I understand that it did so on 5 January 2018.
I also note that the applicant confirmed to the Investigator that he accepted that no additional records existed relating to parts 1-3 of his original request. He also indicated that he was happy to withdraw part 6 of his request, and he agreed with her view that records 3, 11-12, 18-23, 25-27, 29-33 and 35-38 did not fall within the scope of his request. The applicant has also confirmed to this Office that he is not seeking the personal information of employees of other companies, including Atkins, which is contained in the records at issue. I am satisfied that all of the information withheld from release in records 2, 13, 15-17, 24, 28 and 32 is solely that of employees of third parties.
Finally, I note that EirGrid initially refused to grant access to the contract between it and Atkins, which was listed as record 16 in the schedule attached to its original decision. It has confirmed to this Office that this record was omitted from the schedule accompanying the internal review decision in error. To avoid confusion, I will refer to this record as record 16a.
Accordingly, this review is solely concerned with whether EirGrid was justified in its decision to refuse to grant access to records relating to parts 1-4 and 7 of his request (records 1, 4-5, 7, 9-10, 16a and 39) in full or in part, on the basis of section 36 of the FOI Act, and whether EirGrid was justified in refusing access to records relating to part 5 of the applicant's request on the basis of section 15(1)(a).
EirGrid relied on section 36 to refuse to grant access in full or in part to the records sought. In submissions to this Office, it also relied on section 35 in relation to the records containing tender information. I shall examine the records in relation to Section 36 first.
EirGrid relied on section 36 to refuse to grant access to the information contained the records concerned. While it did not indicate what subsection of section 36 it was relying on in its decisions, in its submission to this Office, it concentrated on section 36(1)(b). Section 36(1)(b) 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,".
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)
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 records at issue can be broken down into three categories as follows:
Internal EirGrid records concerning the project - records 1 and 39 which relate to parts 4 and 7 of the applicant's request
Records containing details of submitted tenders (including those of Atkins and unsuccessful tenderers) - records 4-5 and 7 and records 9-10 which relate to parts 2 and 3 of his request
The contract between Atkins and EirGrid - record 16a, relating to part 1 of the applicant's request
EirGrid refused to grant access to all of these records in full, except record 39, which was released in part.
Internal EirGrid records concerning the Project
Record 1 is an internal EirGrid document, setting out the planned milestones, activity and action plans of the project. I note that EirGrid has not made any specific arguments as to why the information contained in this record is commercially sensitive.
Furthermore, as the project has now been completed and the record reflects the position in 2011, I do not see what harm could arise from release. I find that the refusal of access to record 1 has not been justified and I direct the release of this record, subject to the redaction of third party personal information and references to third party companies not within the scope of the applicant's request.
Record 39 is an internal EirGrid document, setting out details of costs, including Committed Project Parameters. In a submission to this Office, the applicant objected to EirGrid's decision to refuse access to this record. He argued that as Eirgrid is a monopoly service provider in that it has no competitors, the information could not be commercially sensitive.
EirGrid said that the ESB had indicated that it did not wish for the Committed Project Parameter cost details to be released, as they were commercially sensitive. It stated that the release of detailed cost information derived from Transmission Standard Development Costs could reasonably be expected to result in material financial loss or gain to the ESB, as transmission asset owner, and should be exempt from release under section 36(1)(b). Having carefully examined the figures withheld from release, it is clear that they relate to various payments estimated to be paid to landowners in terms of wayleaving and other compensation costs. I consider that release of such estimated figures could allow someone to calculate the maximum figures the ESB is willing to pay in such circumstances and affect its ability to successfully negotiate on other projects. Accordingly, I find that section 36(1)(b) applies to this record.
Records 4-5, 7 and 9-10
Records 4-5 and 7 set out and evaluate the tender responses received from all tenderers including Atkins. EirGrid stated that these records comprise its decision-making records in terms of the evaluating the submitted tenders for the project, and that they contained the relative rankings of Atkins and the unsuccessful tenderers. Records 9-10 are Atkins' tender documents. During the course of this review, EirGrid indicated that it would be willing to release the gross figure of the winning tender, although it was of the view that the remaining information was commercially sensitive. I note that the Investigator drew Atkins' attention to the fact that this Office's approach in such cases is that while some details of a winning tender may retain confidentiality, generally speaking, the total amount of a winning tender does not. She invited Atkins to comment in this regard, but it did not do so.
EirGrid stated that the unsuccessful tender information was commercially sensitive and had been submitted in confidence.
EirGrid argued that release of the information contained in these records could affect the interests of both Atkins and EirGrid. In essence, it stated that release of the records could reveal the terms arrived at between Atkins and EirGrid following negotiation, which could impact EirGrid's ability to successfully negotiate with other suppliers, as it stated that those arrived at were more favourable than the terms that are generally negotiated between EirGrid and other suppliers.
In terms of the second part of the test, whether disclosure of the information "could prejudice the competitive position" of the person in the conduct of his or her business, EirGrid stated that the release of details of Atkins' particular processes, team composition, individualised pricing information and technical content could allow its competitors to improve their own responses to future tender competitions.
I note that the Investigator contacted Atkins in relation to to this case, and invited it to make a submission. It objected to the release of the records at issue on the basis of section 36(1)(b). Essentially, it stated that release of the records would be likely to prejudice its competitive position in the conduct of its business. It stated that this was because the records contained confidential business information such as details of strategic pricing strategies and detailed methodologies for carrying out the services concerned. In sum, it argued that the level of detail and the proprietary nature of the information contained in the records would allow its competitors to improve their future tenders
In summary, the applicant argued that as the records relating to parts 1-3 of his request concerned the appointment of consultants by a public body that there was ample precedent for the release of records regarding successful tenders awarded by public bodies under FOI to allow the release of these records.
Having reviewed the records at issue, I am of the view that the records contain a level of detail about Atkins' procedures and processes in relation to this particular project which is over and above the material which one could find publicly. I am prepared to accept that it would be possible for potential competitors to use this information to their advantage, thereby prejudicing Atkins' competitive position. I also accept that disclosure of the ESB's Transmission Standard Development Costs estimates and EirGrid's negotiated pricing with Atkins could result in a material financial loss. Finally, I accept that the information provided by the unsuccessful tenders is of a similar nature to that provided by Atkins. I am therefore willing to proceed on the basis that section 36(1)(b) applies to the information withheld from release in records 4-5, 7, 9-10 and 39. This finding is subject to sections 36(2) and (3), which I shall consider below. However, as I have found above, I do not consider that EirGrid has justified its decision to refuse access to record 1 on the basis of section 36.
Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arises in this case.
Section 36(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.
Section 36(1) itself reflects the public interest in protecting commercially sensitive information. I recognise that there is a legitimate public interest in entities being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result.
On the other hand, the FOI Act recognises, both in its long title and in its individual provisions that there is a significant public interest in government being open and accountable. Section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters, including the need to achieve greater openness in their activities and to promote adherence by them to the principles of transparency in government and public affairs.
EirGrid argued that there was no public interest in favour of the release of unsuccessful tender information which had been submitted in confidence. In relation to record 39, EirGrid was of the view that the public interest favoured the cost effective development of transmission assets and that release of the information could reasonably be expected to increase the costs of developing transmission assets, so that the public interest favoured withholding the information. While Atkins acknowledged the public interest in openness and accountability in relation to the expenditure of public funds, it argued that release of such confidential information could discourage companies from participating in future tender processes.
The applicant argued that the costs information in record 39 should be released as it was in the public interest to understand how monies paid by electricity consumers are ultimately spent.
I take the approach 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 two things: the positive public interest which is served by disclosure and the harm that might be caused by disclosure.
In considering the public interest under section 36(3), I note once again that there is a strong public interest in openness and accountability with respect to the expenditure of public funds. However, this public interest is served to some degree by the records already released by EirGrid. On the other hand, the provisions of section 36 itself reflect the public interest in protecting commercially sensitive information.
The purpose of the public interest test is to strike a balance between competing interests insofar as they are relevant. As noted in previous decisions, the Commissioner takes the view that the FOI Act was designed to increase openness and accountability in the way in which public bodies conduct their operations; generally speaking, it was not designed as a means to open up the operations of private enterprises to scrutiny. In this case, the withheld parts of the records relating to Atkins include detailed information about its "know how", its daily rate charges, and other charging structures, as well as its strategy for managing the project and the expertise of individuals in its team. Furthermore, I consider that it is in the public interest that public bodies be able to negotiate and to achieve value for money when expending public funds. Taking the above into account, I am of the view that, on balance, the public interest would be better served by refusing access to the records sought. Accordingly, I find that EirGrid was justified in refusing access to the relevant information in records 4-5, 7, 9-10 and 39 in full or in part on the basis of section 36 of the FOI Act.
However, as acknowledged by EirGrid, the final price of the winning tender is generally not considered to be commercially sensitive once the contract has been awarded. I see no reason why that should not be the case here. Therefore, I find that section 36 does not apply to this information. Accordingly, I direct the release of the final price of the winning tender to the applicant.
Record 16a is the consultancy services framework agreement between EirGrid and Atkins. EirGrid refused to grant access to this document in full on the basis of "commercial sensitivity/non relevance". Having reviewed the record at issue, It is clear that most of it comprises Atkins' proposed project details, procedures, staff CVs and cost information, which I consider to fall under section 36(1)(b) and/or be out of scope where personal information is at issue. However, the record also contains a lot of information such as the tender requirements issued by EirGrid, etc. Furthermore, it is not clear which part(s) of this record EirGrid considered to be outside of the scope of the applicant's request. Having regard to the wording of part 1 of his request, I am of the view that the entirety of record 16a, i.e. the consultancy framework agreement, is within the scope of his request. It would not be appropriate for this Office to make a first instance decision on those parts of this record that EirGrid has not considered. Therefore, I annul EirGrid's decision to refuse to grant access to the parts of record 16a that it considered to be outside scope. Accordingly, I direct EirGrid to make a fresh decision on record 16a in line with the provisions of the FOI Act.
The applicant is of the view that records should exist relating to part 5 of his request. As EirGrid's position is that no records exist or can be located in EirGrid relating to this part of the applicant's request, section 15(1)(a) is relevant.
Section 15(1)(a) provides that an FOI body may refuse to grant a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to review the decision of the body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. On the basis of the information provided, this Office forms 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. Furthermore, section 11(9) of the FOI Act provides that records held by a service provider relating to the service provided to an FOI body shall be deemed to be held by the FOI body for the purposes of FOI.
The records sought in relation to part 5 of the applicant's request concern the authorisation of a named person to serve Wayleave Notices to landowners for the project. A wayleave is a right of way granted by a landowner, generally in exchange for payment and typically for purposes such as the erection of telegraph wires or laying of pipes. EirGrid has maintained its position, set out in a previous, related case: Case No. 170206 (Mr G and EirGrid PLC), that it is not authorised to carry out a wayleaving function and that wayleave notices are a matter for the ESB stated that only the ESB the statutory power to issue wayleave notices. It further stated that while it contracted consultants, such as Atkins Engineering, to assist with wayleaving functions, neither Atkins, nor EirGrid were involved with the issuing of wayleave notices to landowners.
I note that the applicant has made comprehensive arguments that the authorised officer was essentially carrying out this function on behalf of EirGrid. He referred to various sections of the Infrastructure Agreement between EirGrid and the ESB well as other documents and agreements in support of his argument. He contended that Eirgrid has wayleave function and that the ESB operates under the direction of Eirgrid in these matters. Essentially, he is of the view that Eirgrid has access to the records sought in relation to wayleaving as the ESB was operating under EirGrid in issuing wayleaves, and that the ESB would be required to supply the records to EirGrid in those circumstances.
EirGrid informed the ESB of the matters arising in this case and it also made a submission to this Office. It stated that the Wayleave Notices in respect of the Project were served by the ESB the licensed Transmission Asset Owner, on its own behalf and not as a service provider to EirGrid. It provided additional information as to the relationship between the ESB EirGrid in relation to the project concerned to support its argument. However, having regard to the recent Supreme Court decision in the ESB and EirGrid plc and Kilross Properties Limited, [2018] IESC 22, which dealt with this very issue, I do not consider it necessary to go into any further detail in this regard. In her recent decision, Finlay Geoghegan J found that the ESB carries out the wayleaving function, and that it alone serves wayleave notices pursuant to section 53(1) of the Electric Supply Act 1927, not EirGrid. Finlay Geoghegan J also found that the ESB had not delegated its powers to EirGrid (or ESB Networks) to issue wayleaves.
regard to the above, I am satisfied that the ESB, which is exempt from FOI under part 2 of Schedule 1 of the FOI Act, was carrying out its own statutory functions in this case, and was not acting as a service provider to EirGrid. I am also satisfied that the authorised officer in question, as found by the Supreme Court, was acting for and on behalf of the ESB and not EirGrid in performing these functions. Therefore, I find that section 11(9) does not apply in this instance and that the ESB is not obliged to provide records relating to the authorisation of its named employee to serve wayleave notices in relation to this project to EirGrid under the FOI Act.
Having regard to the matters above, I am of the view that EirGrid was justified in refusing to release records in relation to part 5 of the applicant's request under section 15(1)(a) on the ground that these records do not exist or are not held by EirGrid.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary EirGrid's decision as follows:
I affirm its decision to refuse access to records 4-5, 7, 9-10 and 39 in full or in part on the basis of section 36(1)(b) of the FOI Act.
I annul its decision to refuse access to record 1 and direct its release subject to the redactions listed above. I also direct the release of the amount of the winning tender.
I annul its decision to refuse access to parts of record 16a on the basis that these parts were outside the scope of the request and direct it to make a new decision on this information under the FOI Act.
I affirm its decision to refuse access to records relating to part 5 of the applicant's request on the basis of section 15(1)(a).
I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by EirGrid to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision, as provided for at section 24(4) of the FOI Act.
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