Whether EirGrid was justified in refusing to grant access to records relating to the alteration, diversion or undergrounding of 110Kv transmission lines on lands in County Kildare under sections 15 and 31 of the FOI Act.  

5 March 2019 

Background

On 13 June 2018, the applicant sought access to the following:

(i) records received by EirGrid from ESB/ESB Networks on or after 1 January 2013 regarding the alteration, diversion or undergrounding of the 110 kV transmission lines on lands owned by Killross Properties Ltd ('the Killross lands');
(ii) records prepared or considered by EirGrid on or after 1 January 2013 in relation to the alteration, diversion or undergrounding of the 110 kV transmission lines on the Killross lands;
(iii) records sent by EirGrid to ESB/ESB Networks on or after 1 January 2013 in relation to the alteration, diversion or undergrounding of the 110 kV transmission lines on the Killross lands;
(iv) records prepared or considered by EirGrid in relation to the letter to ESB/ESB Networks of 30 October 2015; and 
(v) records prepared or considered by EirGrid which informed the content of the letter dated 30 October 2015 from EirGrid to ESB/ESB Networks.  

EirGrid identified 13 records as falling within the scope of the applicant's request.  It granted access in full to one record and refused access to 12 records on the basis of section 31(1)(a) relating to legal professional privilege.   The applicant sought an internal review of that decision.  On 5 September EirGrid issued its decision.  The internal reviewer, as set out in a schedule accompanying his decision, identified 64 records as falling within the scope of the applicant's request.   The internal reviewer granted access to 52 records but refused access to 12 records on the basis of section 31(1)(a).  On 10 September the applicant sought a review by this Office of EirGrid's decision.

The applicant was, at the internal review stage, provided with a schedule listing 64 records as falling within the scope of his request.  This schedule indicated that access was granted to 52 records with 12 records redacted on the basis of section 31(1)(a).   However when Eirgrid forwarded the relevant records to this Office a schedule was appended which listed 57 records as falling within the scope of the applicant-™s request and again 12 records were redacted on the basis of section 31(1)(a).  When requested by this Office to explain this disparity, EirGrid indicated that the schedule which was forwarded to the applicant at the internal review stage was done so in error.  EirGrid further indicated that the schedule forwarded to the applicant was a draft working version which had been prepared by the internal reviewer before the final response was reviewed by EirGrid's Legal Department.   EirGrid indicated that the schedule forwarded to this Office, listing 57 records as falling within the scope of the applicant's request, was the correct schedule and it subsequently supplied this schedule to the applicant.  

I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to EirGrid's correspondence with the applicant as outlined above and to the communications between this Office and both the applicant and EirGrid on the matter. I have also had regard to the contents of the record at issue.

Scope of Review

This review is concerned solely with whether EirGrid was justified in refusing access to records under sections 15 and 31 of the FOI Act.   

Preliminary Matters

It is important to note at the outset that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on EirGrid of satisfying this Office that its decision to refuse to release the records sought was justified. 

Analysis and Findings

Section 31(1)(a) 
Section 31(1)(a) is a mandatory provision which provides for the refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. In deciding whether section 31(1)(a) applies, I must consider whether the records concerned would be withheld on the ground of legal professional privilege in court proceedings. 

Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

(a) 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

(b) 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).

Litigation Privilege
Litigation privilege is the relevant aspect of section 31(1)(a) that EirGrid have relied on.  

For litigation privilege to apply, the records must have been created for the dominant purpose of contemplated/pending litigation.  Litigation encompasses not alone court proceedings but also proceedings before tribunals exercising quasi judicial functions.  The dominant purpose test was expressly adopted in Ireland by O'Hanlon J. inSilver Hill Duckling Limited v Minister for Agriculture [1987] 1 IR 289.  In the judgment of the High Court in University College Cork -“ National University of Ireland v The Electricity Supply Board([2014] IEHC 135) Finlay Geoghegan J. stated -

"The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation."

As such, a body claiming the exemption must satisfy this Office, on balance, that litigation is contemplated or pending and consideration must be given to the purpose or purposes for which the records were created.  

In line with normal practice of this Office, the Investigator in this case sought a submission from EirGrid which amongst other matters sought detailed explanations around its reliance on section 31(1)(a) to refuse access to 12 records.   EirGrid submitted a response dated 23 October 2018 wherein it provided a detailed description of each of these 12 records and outlined how in its view the exemption relating to legal professional privilege set out in section 31(1)(a) applied to these records.   

However the Investigator was not satisfied that the description of the records in EirGrid's submission matched the records which had been provided to this Office at the outset of the review (numbered 46-57 on the schedule supplied to this Office).   Therefore on 5 November the Investigator wrote to EirGrid querying the situation and drawing EirGrid's attention to the fact that, both in terms of numbering and description, the records as described in its submission did not appear to match the records supplied to this Office.   In its response of 6 November EirGrid failed to address the matter.  Therefore the Investigator once again wrote to EirGrid on 12 November and highlighted again the apparent disparity in relation to the records for which section 31(1)(a) had been invoked.   

In its response of 28 November EirGrid indicated that its submission of 23 October had been prepared by an external legal company and 'it appears that records described at the submission were the records on the Draft schedule of records (which was issued in error)'.  EirGrid further indicated that the records referred to in its correspondence of 23 October were those withheld at the original decision stage (numbered A1-A12).  Finally EirGrid indicated that the records supplied to this Office (numbered 46-57) were in fact those which had been refused to the applicant at the internal review stage.

In light of this information the Investigator wrote to EirGrid on 11 December and provided one final opportunity for EirGrid to make a submission in relation to the applicability of section 31(1)(a) to the records which had in fact been refused at the internal review stage and supplied to this Office (numbered 46-57).  In its response of 14 January EirGrid merely restated the fact that the submission of 23 October had been prepared by an external legal company which had referenced the incorrect schedule of records.   EirGrid did not supply any further arguments in relation to the applicability of section 31(1)(a) to records 46-57.   

I have reviewed the exchange of correspondence on this matter as well as the records supplied to this Office.  I am not satisfied that EirGrid has in any way addressed the applicability of section 31(1)(a) to the records refused to the applicant at the internal review stage.  I should also note in this regard that, at the request of the Investigator, EirGrid did supply those records which it previously indicated had been refused to the applicant at the original decision stage on the basis of section 31(1)(a) (numbered A1-A12) to this Office.   Having compared these records with EirGrid's submission of 23 October it is clear that these are the records described in that submission, and not those refused to the applicant at the internal review stage.  

I have considered whether I should simply annul EirGrid's decision on the ground that it has not justified its refusal of the request and direct it to release these records to the applicant. However, I am satisfied that it is not appropriate to do so.   As outlined above, the exemption set out in section 31(1)(a) is a mandatory one.  In circumstances where this Office lacks the requisite clarity in relation to the contents of the records coming within the scope of the request, and in the absence of any substantive argument from EirGrid as to why the relevant exemptions apply to the specific records, it is simply not possible to determine if EirGrid's refusal of the request under section 31 was justified. 

Accordingly, I do not consider it appropriate to simply direct the release of the records to the applicant. Instead, I consider that the appropriate course of action is to annul EirGrid's decision and to direct it to make a new first instance decision in respect of the applicant's original request. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with EirGrid's decision. I appreciate that remitting the case back to EirGrid causes further delay for the applicant. However, I do not believe that there is an alternative appropriate course of action to take in this instance.

Section 15(1)(a)
In addition to the applicant's arguments in relation to section 31(1)(a), in his submission to this Office he also argued that additional relevant records should exist beyond those identified by EirGrid.   As such section 15(1)(a) of the FOI Act is relevant.  

This section provides that a request may be refused if the records sought do not exist, or cannot be found, after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in such cases is to review the decision of the FOI 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. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that it has taken all reasonable steps to locate the relevant records.   Having regard to 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.  However, it is not normally the function of this Office to search for records that a requester believes are in existence.

In submissions to this Office, the applicant stated that EirGrid ought to hold further records falling within the scope of his request.   With regard to the first three parts of his request, the applicant argued that a number of the records identified were letters or records which issued from ESB/ESB Networks and that in order for EirGrid to hold a copy of these records they must have been transmitted from ESB/ESB Networks to EirGrid via email.  The applicant has therefore argued that a copy of such cover emails from ESB/ESB Networks to EirGrid should exist, as well as possible related records.  The applicant also argued that there should be records of internal EirGrid communications and a response from EirGrid to ESB/ESB Networks which have not been released to him.  

With regard to parts four and five of his request, the applicant contended that record 45 (record 43 on the amended schedule) which is entitled -˜Policy on the use of Overhead Line and/or Underground Cable-™ does not deal with the entirety of the information sought under these parts of his request.  In his submission to this Office he has argued that other information, such as communication from ESB/ESB Networks which were considered by EirGrid, the cover letter from ESB/ESB Networks to EirGrid under which the diversion/undergrounding was requested in or about October 2015 and internal EirGrid records regarding the preparation of the letter from EirGrid to ESB/Networks fall within the scope of his request and should have been released to him.

The Investigator provided these details to EirGrid and sought answers to detailed queries about searches undertaken to locate all records within the scope of the review.  In response EirGrid provided details of the specific searches that had been undertaken on foot of the applicant's request. It indicated that following receipt of the applicant's request it utilised its 'Clearwell' search tool to identify records falling within the scope of the request.   This Clearwell search can search large numbers of records over multiple locations including Microsoft Outlook, SharePoint and public folders as well as individual mailboxes together with project information repositories and source locations.   EirGrid provided details of the specific search strings which were used and which included 'undergrounding', 'diversion options', 'Killross lands', 'Maynooth-Ryebrook' and the applicant's name.  EirGrid informed this Office that such searches will return any document where a word is contained, but not necessarily just in relation to the specific matter in question.  This search produced 1620 documents which were then filtered and reviewed for relevance to the specific search.  

EirGrid also provided details of its record management policies and in particular details around its policies for record destruction.  With regard to the possibility that records could have been destroyed, EirGrid considered that this is very unlikely as there is no record of any deletion/destruction request as the project is still live.  In sum the position of EirGrid is that it has taken all reasonable steps to look for records of relevance to the applicant's request. 

With regard to records 41, 42 and 44, in the course of its submissions to this Office EirGrid indicated that these records were received in an email from ESB/ESB Networks on 14 September 2015.  EirGrid supplied the covering email for these records to this Office, the subject line of which was 'Proposed development at lands at Easton, Leixlip'.  EirGrid further indicated that as none of these words were used in the Clearwell 'string search' that this email was not identified as falling within the scope of the applicant's request.     

In light of confusion around schedules I am not currently satisfied that EirGrid have properly identified all records relevant to the applicant's request. As is clear from EirGrid's comments above in relation to records 41, 42 and 44, it appears clear that further records falling within the applicant's request may exist which have not been identified in the searches conducted to-date.  

As I have outlined above, section 22(12)(b) places the onus on EirGrid to satisfy this Office that it was justified in refusing the applicant-™s request.  I do not consider that EirGrid has justified its decision to refuse the applicant-™s request on the basis of section 15(1)(a).   In line with my decision in relation to section 31(1)(a) above, I therefore annul EirGrid's decision and remit the matter for fresh consideration.   In carrying out this fresh review I would suggest that EirGrid reconsider the terms, or 'search strings' which it proposes to use to identify records falling within the scope of the applicant's request, as it is clear from the above that not all records relevant to the applicant's request appear to have been identified. 

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby annul EirGrid-™s decision to refuse the applicant's request for access to records and I direct EirGrid to undertake a fresh decision-making process on the request.

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