Whether Eirgrid was justified in refusing access to records relating to litigation that had been taken against Company Y under sections 15(1)(a) (reasonable searches), 31(1)(a) (legal professional privilege), 36(1)(b) (commercial sensitivity) and 37(1) (personal information) of the FOI Act
OIC-60582
Background
Mr. X’s correspondence with Eirgrid of 20 March 2019 referred to certain litigation that had been taken in 2013 against Company Y (of which Mr. X is a Director) in relation to an uprate of a particular power line. It also referred to a Legal Services Consultancy Agreement (the Agreement) between Eirgrid and ESB.
The correspondence contained eight parts. Part 6 applied for a statement of reasons under section 10 of the FOI Act, which I will not refer to further because Eirgrid’s decision on it does not form part of this review. Parts 1-5 and 7-8 sought access under the FOI Act to the following records:
1. “A copy of all invoices received from ESB/’Business Unit’ in relation to services provided by ESB to Eirgrid under the [Agreement]; any related records such as cover letters or emails sent with those invoices; a breakdown of time and/or costs for each invoice; and records showing payment of those invoices by Eirgrid. Scope of request: from 1st March 2013 to the date of this request.
2. Records of Eirgrid’s decision to instruct ESB Legal Dept/’Business Unit’ to issue the aforementioned High Court proceedings against [Company Y], including but not limited to minutes of meetings, including Eirgrid Board meetings, where the aforementioned decision was made and a copy of the aforementioned decision.
3. Records of all instructions given by Eirgrid to solicitors in the ESB Legal Dept/’Business Unit’ in relation to the aforementioned High Court proceedings and any responses to those instructions. Scope of request: from 1st March 2013 to 31st December 2014.
4. Records describing the identity of the Eirgrid ‘instructing party’ in relation to the aforementioned High Court proceedings, clause 2.4 of [the Agreement] refers.
5. Records describing the identity of the ‘ESB Conducting Lawyer’ in relation to the aforementioned High Court proceedings, page 18 of [the Agreement] refers.
7. Records of correspondence and/or meetings between Eirgrid and ESB in relation to the aforementioned High Court proceedings issued against [Company Y]. Scope of request: from 1st March 2013 to 31st December 2013.
8. Records of ‘Regular Meetings’ between Eirgrid and ESB Legal as referred to at page 20 of [the Agreement], including but not limited to minutes of those meetings and/or notes taken. Scope of request: from 1st January 2013 to date of this request.”
On 26 September 2019, this Office issued a decision annulling Eirgrid’s decisions on the request (see Case Nos OIC-53497 and Case Number OIC-53498). The Senior Investigator directed Eirgrid to engage with the applicant in relation to the scope of the above parts and to make a fresh decision in accordance with the provisions of the FOI Act.
Eirgrid’s decision of 22 November 2019 refused parts 1, 4 and 5 under section 15(1)(a) of the FOI Act (records do not exist/reasonable searches). It said it was withholding 13 records covered by parts 2, 3, 7 and 8 under section 31(1)(a) (legal professional privilege). Mr. X sought an internal review of Eirgrid’s decision on 30 November 2019 and also questioned the adequacy of Eirgrid’s searches for relevant records. Eirgrid’s internal review decision of 20 December 2019 said that it had identified eight invoices as covered by part 1, which it was releasing in part. It relied on sections 36(1)(b) (commercial sensitivity) and 37(1) (personal information) in relation to the withheld excerpts. It affirmed its decision on the other parts of the request. On 24 December 2019, Mr. X sought a review by this Office of Eirgrid’s decision, again saying that further records should exist.
During the review, Eirgrid told this Office that it had found three payment records (part 1), one of which it would fully release. It said that the other two would be released subject to the redaction of details that are not covered by the request or that are exempt under section 36(1)(b). It provided this Office with copies of the records concerned. Arising from the Investigator’s queries on their contents, Eirgrid clarified that it had actually found four payment records. It confirmed that it would fully release the fourth.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. I would like to apologise for the length of time it has taken for me to issue my decision in this matter. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, Eirgrid, ESB Networks Limited and the applicant. I have also examined the records at issue and had regard to the provisions of the FOI Act.
Scope of the Review
My review is confined to whether Eirgrid’s decision on the applicant’s request for records was justified under the provisions of the FOI Act. It cannot consider, or take account of, how Eirgrid or other entities perform their functions generally.
Preliminary Matters
Although I am required to give reasons for my decisions, 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. It is also relevant to my decision that the release of a record under FOI is accepted to be equivalent to publishing the record to the world at large.
The FOI request refers to the ESB. However, the ESB (and its internal division, ESB Networks) is not an FOI body for the purposes of FOI. Rather, ESB Networks Limited (ESBNL) is subject to FOI and only in part. For the sake of simplicity in this decision, I will refer to this entity as “ESB”.
Findings - adequacy of searches/records do not exist
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist.
It is not normally the function of this Office to search for records. Furthermore, the Commissioner does not expect FOI bodies to search indefinitely for records or to account for all gaps that may be identified in records. This Office has no remit to examine, or make findings on, whether or not Eirgrid should have created further records, the level of detail in records that were created or Eirgrid’s record management practices generally.
The Investigator’s letter of 24 March 2020 summarises Eirgrid’s very detailed description of its searches for records covered by the request. It sets out why Eirgrid contends that it has taken all reasonable steps to look for records covered by the request and that some of the requested records do not exist. I will refer to the Investigator’s letter as necessary.
Section 15(1)(a) - part 1
Eirgrid found a total of 12 records covered by part 1 i.e. records 1-8 (invoices) as considered at internal review stage and four payment records that were located during this review. The relevant part of the payment records seem to me to concern seven of the invoices. The withheld parts of some of the invoices include breakdown records.
The Investigator’s letter to Mr. X describes Eirgrid’s searches for archived pre-July 2014 records and post-July 2014 records, the detail of which I do not need to set out here. She explains how the internal reviewer took a broader view of the scope of Part 1 than did the original decision maker and identified eight invoices as covered by that Part, and also how further records were identified during the course of this review. In particular, she sets out Eirgrid’s position that invoices were not routinely issued by or received from ESB under the Agreement and that, in practice, the Agreement was operated informally including in relation to the issuing of invoices.
Eirgrid says that it is satisfied it has located all invoices and related records that are covered by part 1 and that it holds no such records relating to the Plenary Proceedings. It says that it is not aware of any records covered by part 1 having in fact been destroyed, although it also notes that its Records Management Policy and Procedure provides that records are destroyed after seven years.
Mr. X is satisfied with Eirgrid’s searches for pre-July 2014 records and I will not deal further with these. He says that that further post-July 2014 records should exist, such as invoices that may have been paid/filed informally. He says that the piecemeal finding of records suggests that Eirgrid’s searches are inadequate. He says that it should be able to find records relating to its payment of public money to another body and that this Office should direct Eirgrid to identify and release all relevant records.
It is regrettable that Eirgrid did not identify the 12 records at the outset; however this does not lead to the inevitable conclusion that its searches were not adequate. It has not found payment records or breakdowns for all of the invoices or any correspondence under which the invoices were presumably sent. However, section 15(1)(a) requires bodies to take reasonable, not exhaustive, steps to locate records. The Commissioner does not expect FOI bodies to search indefinitely for records or to account for all gaps that may be identified.
Having regard to Eirgrid’s submissions and its responses to the queries put to it by this Office, I am satisfied that it has taken all reasonable steps to ascertain the whereabouts of records covered by part 1. I find that section 15(1)(a) applies to part 1.
Section 15(1)(a) – parts 2-5, 7 and 8
Eirgrid says that no records covered by parts 4 and 5 exist. It found three, five, one and four records covered by parts 2, 3, 7 and 8 respectively. The Investigator’s letter sets out how Eirgrid interpreted parts 2, 3, 7 and 8, including the term “instructions” as contained in part 3. The applicant incorrectly understood the Investigator as saying that Eirgrid had taken instructions from another party and made various comments in this regard which I need not address. He did not comment on Eirgrid’s interpretation of parts 2, 7 and 8 and I see no need to refer to or repeat the details concerned.
I will firstly summarise Eirgrid’s description of its general searches for the above records and outline its explanations specific to each part of the request. In so doing, I use terms such as “Eirgrid etc. did X” for brevity rather than as findings on any particular matters of fact. I will then summarise and comment on the applicant’s views.
General searches
Eirgrid’s legal team stored records in the relevant period in specific case files in a dedicated and secure electronic legal filing system rather than in a formal legal case file management system. Each case file contains highly structured sub-divided structures in order to replicate a form of case management.
An experienced senior legal administrator (the reviewer) carried out a broad search of the electronic system using numerous terms, which highlighted a very wide range of records. For instance, over 3,400 records were highlighted as containing Mr. X’s name alone. The reviewer sought to narrow the search by personally reviewing all electronic documents relating to the Plenary Proceedings and other proceedings involving Company Y, which took two weeks and the rearrangement of the reviewer’s other work. As the uprate was a “Grid Development & Commercial” (GDC) project, the reviewer also examined a general GDC file to see if it contained relevant records.
Two in-house solicitors, who no longer work for Eirgrid, dealt with the Plenary Proceedings and other proceedings concerning Company Y. Repositories were created to hold the inbox contents of their now-deleted email accounts, which the reviewer searched for any relevant records that had not been placed on the electronic filing system. The contents were found to primarily relate to the solicitors’ other work and advices they gave (for which case files would not always have been opened), rather than to the subject matter of substantial litigations.
The reviewer opened each document in some of the individual smaller repository files. However, other documents were not manually searched such as one folder that contained over 18,000 documents and other folders and files that could not be opened by either the reviewer or Eirgrid’s IT department. However, the reviewer carried out key word searches of the repositories, which also yielded many results (e.g. searches of one repository using Company Y’s name and “ESB” yielded 361 and 489 results respectively) and all of which were individually reviewed. Some did not relate to the Plenary Proceedings or other proceedings involving Company Y, while the dates and contents (e.g. internal correspondence relating to the preparation of court documents, requests for court hearing updates etc.) of others were not covered by the request. In any event, Eirgrid is satisfied from these searches that all substantive correspondences and documents relating to the various proceedings involving the applicant were filed in the ongoing active litigation files.
Eirgrid has given more than 50 boxes of lever arch folders of such records to a legal cost accountant, containing printed copies of records held electronically. The reviewer prepared the boxes and confirms that they contain court documents such as pleadings, affidavits, statements of case and High Court transcripts. Eirgrid sees no need to retrieve the boxes to search them.
Eirgrid’s records management policy and procedure generally provides for the destruction of records after seven years although it does not refer specifically to records relating to litigation. To the best of Eirgrid’s knowledge, no records relating to the conduct of the Plenary Proceedings have been deleted or destroyed because the matter is still ongoing.
Finally, the uprate project team holds only records containing technical project information and some copies of statements/legal papers as supplied by the legal team. This team confirms that the legal team would hold all records relating to legal discussions.
Parts 2, 3, 7 and 8 – specific explanations
Eirgrid says that it appears to have informally agreed with ESB that the latter would go on record formally for Eirgrid in the proceedings, such that both would jointly use the ESB’s existing legal team (including counsel). It says that this was in accordance with the Agreement. However, as noted earlier, it says that the Agreement itself was informally operated in practice.
It says that the two legal teams operated informally and liaised in preparing for the Plenary Proceedings and other proceedings concerning Company Y. Required work streams were agreed and divided between the teams and final documents jointly approved, which reduced duplication in preparing for the proceedings. It says that ESB did not act for and advise Eirgrid in the proceedings or related matters in the traditional sense of a solicitor-client relationship and also that Eirgrid did not issue instructions to ESB.
The reviewer says that the two former Eirgrid solicitors confirm the collaborative and informal nature of the working relationship and engagement between the two legal teams. They say that these types of proceedings were not uncommon for Eirgrid and ESB at the time and that they did not require unusual or extensive engagement, meetings or instructions between the teams. They confirm that no meetings of the sort referred to at part 7 generally took place and that no formal, informal or telephone meetings were held with ESB Legal during the relevant period for the purposes of the Agreement (part 8). The former solicitors also say that if any meetings relevant to parts 7 and 8 were held, notes would not necessarily have been taken.
Eirgrid says that it is unlikely to have destroyed any records covered by part 7 because certain aspects of the proceedings are ongoing. It also says that it is not aware that any records covered by the broader part 8 have been destroyed but cannot definitively confirm this. As already noted, its Records Management Policy and Procedure provides for the destruction of records generally after seven years.
Finally, the reviewer spoke with four Eirgrid staff working in the Project Management office during the timeframes of the request, who also say that no formal, informal or telephone meetings were held with ESB legal during the relevant period for the purposes of the Agreement. These staff conducted searches of their email accounts to identify if they held any records relating to meetings under the Agreement and found none.
Parts 4 and 5
Eirgrid is of the view that Mr. X is likely to know the identities concerned from his dealings with the teams and from records and schedules already released or provided to him. It says that there was no formal or informal appointment made, or recorded in writing, of an Eirgrid instructing party or an ESB conducting lawyer, as evidenced by the fact that it found no records despite searching the electronic legal files and the repositories using the terms “instructing party” and “conducting lawyer”.
Analysis of Eirgrid’s arguments and the applicant’s comments
General Searches
Eirgrid provided this Office with a 29-item list of some of the terms used in its initial broad search of the electronic system, which was outlined to Mr. X.
Mr. X says that Eirgrid has exaggerated its efforts by using irrelevant search terms, such as his name because it was not within the scope of the request and terms including “instructing party” and “conducting lawyer” because they are unlikely to have been mentioned in correspondence or instructions even though they are contained in the Agreement. The particular terms “instructing party” and “conducting lawyer” are in the FOI request and as noted, Mr. X is a Director of Company Y. In my view, it is reasonable for Eirgrid to have used these search terms and variations of them in order to identify as many potentially relevant records as possible. Noting the volume of results that Eirgrid says were initially generated, it seems to me that it was reasonable for Eirgrid to have confined its examination of records to those documents that were identified on foot of more focussed searches.
Mr. X sets out various reasons as to why he does not accept that the former solicitors’ email accounts have been deleted. These give me no reason to reject Eirgrid’s clear position to the contrary. Mr. X also says that was “very clearly” wrong to search the repositories for legal advice when he had not requested such records. However, Eirgrid’s submission does not say that it searched the repositories only for legal advice. It seems to me that the various searches, including key word searches, were intended to establish the nature of the material held in the repositories and to rule out the possibility that they might contain records covered by the request that had not been placed on appropriate files.
Mr. X appears to say that searches should be carried out of the files and folders in the repositories that have not been examined. It seems to me that Eirgrid carried out reasonable searches of the repositories by examining all results arising from key word searches as well as some individual small files. I do not believe it is warranted in the circumstances to require Eirgrid to carry out further searches of the repositories. Although not necessary for me to comment further, neither would I consider it reasonable to require Eirgrid to somehow obtain access to any repository files that cannot be opened by its own IT department.
Mr. X says that the hard copy records held by the cost accountant would “undoubtedly hold the instructions and correspondence” covered by his request and that is misleading to say that 50 boxes of such folders would have to be searched. He says that the first correspondence between Eirgrid and ESB, as contained in the first folder of the records concerned, will likely meet the parameters of various parts of his request. However, I see no merit in directing Eirgrid to search the files held by the legal cost accountant given its position that these are printed copies of records held electronically that it has already searched.
Mr. X says that the uprate project team’s comments are irrelevant. It seems to me that it was appropriate for Eirgrid to carry out various searches of where records might be, as well as where they should be, and so to establish whether that team might hold records.
Parts 2 and 3
Mr. X says that it is “simply impossible” to accept that Eirgrid cannot locate a record covered by part 2 and that there must be written evidence supporting Eirgrid’s description of how ESB went on record for it, as required by the Solicitors Acts and the Law Society. He describes the type of record he has in mind (a single page) and why he believes it should exist. He says that the records requested at part 3 are not ‘legal discussion’ or legal advice but “instructions from a non-legal person (client) in Eirgrid to Eirgrid’s in-house solicitors within a very specific and reasonably short period of time. Mr. X says that the legal team could not operate in the High Court without taking instructions from the client (Eirgrid). He interprets Eirgrid’s submission as confirming that it gave formal and informal instructions to ESB and that it created notes of verbal instructions, on which records it must have relied in making its submissions. He argues that Eirgrid cannot say that it engaged ESB informally and then say that ESB did not act for it in the proceedings.
Part 2 sought records of Eirgrid’s decision to instruct ESB Legal Dept to issue proceedings and part 3 sought communications between Eirgrid and ESB Legal Dept. Neither encompasses all internal Eirgrid records relating to the litigation generally. As Mr. X knows, Eirgrid located a small number of records covered by parts 2 and 3 at the outset. I note Eirgrid’s comments that ESB did not act for and advise it in the proceedings or related matters in the traditional sense of a solicitor-client relationship. It is also the case, as is set out later in this decision, that two brief excerpts of the breakdowns relevant to part 1 refer to legal advice. However, I do not see this, or the fact that Mr. X disputes Eirgrid’s description of how ESB went on record for it and how the parties interacted, to give me a basis to question what Eirgrid says about the general nature of its relationship with ESB in relation to the legal proceedings. I note also that Eirgrid says in its internal review decision that the parties communicated verbally. In my view, Eirgrid is seeking to explain how the interactions differed to those that one would generally expect in a traditional solicitor-client relationship. I accept that this has implications for the volume of records that would have been created as a result.
Parts 7 and 8
Mr. X regularly makes the point that the records he seeks do not concern “legal discussions”. It seems to me that the records sought at part 7 could well be described as relating to such matters. Mr. X asks if personnel other than the two former Eirgrid solicitors were asked about any meetings. In response to Eirgrid’s comments about the possible destruction of records, he says that the scope of these parts of the request do not go back more than 7 years. He says that Eirgrid does not refer to any meetings in the past year or in the past 1-6 years or refer to who was asked about such meetings.
I have no reason to further question Eirgrid in relation to its position on parts 7 and 8. I consider it reasonable for legal personnel to be most likely to know whether meetings concerning legal matters were held in the first place. Furthermore, it is clear from the Investigator’s letter that the reviewer made enquiries of Eirgrid staff working in the Project Management office. It also seems to me that the comments about the destruction of records were to address the possibility that records might have been deleted and to explain Eirgrid’s position that, while this is unlikely, neither can it be confirmed or ruled out.
Summary in relation to parts 2, 3, 7 and 8
It is possible that further records covered by parts 2, 3, 7 and 8 exist. However, as already outlined, section 15(1)(a) does not require exhaustive searches to be carried out and the Commissioner does not expect FOI bodies to search indefinitely for records. Further to my examination of Eirgrid’s description of its searches, its explanations of why few records of the sort requested were likely to have been created in the first place and my analysis of the applicant’s comments, I am satisfied that Eirgrid has taken reasonable steps to look for such records. I find that section 15(1)(a) applies.
Parts 4 and 5
Mr. X says that Eirgrid confirms the existence of relevant records by saying that the identities can be gleaned from records and schedules already released or provided to him. He says that Eirgrid should schedule these records and give details of when they were provided to him.
He also says that he seeks records confirming the identities of the relevant individuals rather than their appointments to the roles concerned. He says that the details must be contained in the initial records and instructions given regarding the proceedings. He goes on to say that he does not require the extraction of single sentences from records where there are undoubtedly a number of records which will adequately provide the information sought.
The FOI Act requires requests to contain sufficient particulars to enable the record to be identified by the taking of reasonable steps. Parts 4 and 5 of Mr. X’s request are worded by reference to the roles set out in the Agreement. I consider it reasonable for Eirgrid to have understood them as requesting records that officially confirm the appointment of the individuals to the roles concerned. Eirgrid’s position is, essentially, that it did not create such records because the relevant staff informally adopted the roles. I have no reason to dispute this and I find that section 15(1)(a) applies on the basis that such records do not exist.
I do not accept Mr. X’s position that parts 4 and 5 of the request were intended to cover parts of general records held by Eirgrid that could contain the relevant information. For the sake of completeness, I will deal with his view. I note that Mr. X does not specify what types of detail he is seeking but they seem likely to me to comprise names, positions, signatures, email addresses, etc.
Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). The Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the a withheld record for the purpose of granting access to those particular sentences or paragraphs.
I do not consider it in keeping with the Commissioner’s approach to section 18 to direct Eirgrid to grant partial access to records held by Eirgrid that contain the details that Mr. X might be seeking. Neither have I any power to direct Eirgrid to provide Mr. X with a schedule of records that have already been provided to him, which contain the relevant information.
Findings – withheld records
Section 31(1)(a) – legal professional privilege
Eirgrid has withheld records 1, 2 and 3 (relevant to part 2); 4, 5, 6, 7 and 8 (part 3); 9 (part 7); and 10, 11, 12 and 13 (part 8) under section 31(1)(a). Section 31(1)(a) of the FOI Act requires the refusal of access to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
- confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
- 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).
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from an original request for advice.
When considering litigation privilege, the judgment of 21 March 2014 of Finlay Geoghegan J., in the case of University College Cork - National University of Ireland v the Electricity Supply Board [2014] IEHC 135 (the ESB case) is relevant. Ms Justice Finlay Geoghegan said that the relevant document must have been created when litigation is apprehended or threatened. She said that 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. The onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to obtain legal advice or to enable his solicitor prosecute or defend an action. Arising from this judgment, it also appears that, unlike legal advice privilege, litigation privilege does not automatically continue beyond the final determination of the litigation in which it originally applied or closely related litigation.
Eirgrid says that the records attract both legal advice privilege (including some records that it says are part of a continuum of communications for the purpose of seeking or obtaining legal advice) and litigation privilege. It says that any sharing of such privileged communications between it and ESB was on the basis of common interest privilege. It says that while the legal proceedings issued in 2013 have concluded, litigation privilege survives because of related, ongoing proceedings issued by Company Y against the ESB in 2017 and also because the issue of costs arising from the Plenary Proceedings is in dispute between the parties and will be subject to adjudication before a Legal Costs adjudicator.
Mr. X does not comment on whether closely related litigation has been determined. He says that a request for or decision on the approval of legal proceedings, instructions and correspondence, notes of meetings and updates relating to a matter of business of the Board cannot comprise legal advice and cannot be refused under section 3(1)(a).
I am satisfied that, having regard to the contents of the withheld records, they comprise confidential internal Eirgrid documents, or confidential communications between Eirgrid and the ESB as a party to the litigation, which were created with the dominant purpose of preparation for contemplated/pending/ongoing litigation. I accept that litigation privilege continues in respect of the ongoing, related proceedings issued in 2017. I accept that the records attract litigation privilege and I find that they are exempt under section 31(1)(a) of the FOI Act. Although not necessary for me to go any further, I accept that parts of some of the records attract advice privilege, and that waiver of this privilege does not arise given the common interest that two parties had in relation to the matter.
Eirgrid did not rely on section 31(1)(a) in relation to the records covered by part 1. However, the ESB has made such a claim. Three provisions in the FOI Act are relevant to third parties i.e. sections 35 (confidential information), 36 (commercially sensitive information) and 37 (personal information). These provisions were presumably deemed by the Oireachtas to cater for all circumstances where third parties' interests might be affected by release of records. However, I accept that a third party's submissions may require me to consider whether a mandatory exemption applies, such as that concerning legal professional privilege.
ESB says that the invoices contain details of matters on which legal advice was provided and attract legal professional privilege such that they are exempt under section 31(1)(a). It also says that invoices for fees for legal advice provided in relation to litigation were prepared in connection with that litigation and are therefore also subject to litigation privilege.
I do not accept that the invoices, breakdowns and payment records qualify for litigation privilege. While they concern costs arising in litigation, in my view their dominant purpose is in relation to the payment of those costs. Further, I do not accept that general references to tasks carried out in relation to particular projects or to costs relating to particular litigation discloses the nature of any legal advice sought or given in respect of those matters.
Having examined the records covered by part 1, I accept that the disclosure of two excerpts in the final page of the breakdown attached to record 4 (the first and fourth entry) would disclose details of legal advice. I am satisfied that the details concerned attract legal advice privilege. I find that they are exempt under section 31(1)(a) of the FOI Act.
Section 36(1)(b) – commercial sensitivity
Material at issue
As Mr. X is aware, records 1-3 of the invoices covered by part 1 are copies of redacted invoices that were released by Eirgrid to another individual (Mr. Z) in line with this Office’s decision on Mr. Z’s application for review in Case No 160220. Eirgrid retained the redacted documents on Mr. Z’s FOI request file as a record of what had been issued. It provided full copies of these redacted documents to Mr. X further to his FOI request in this case. Eirgrid did not consider it necessary to search for the originals of records 1-3, which date from 2013 and would be on the archived accounting system. I note that Mr. X says that he is satisfied with Eirgrid’s searches for pre-July 2014 records. Therefore, I need not consider records 1-3 or their originals further.
Eirgrid partially released records 4-8 (part 1) and relied on section 36(1)(b) in relation to the remainder of these records, which are as follows:
- Record 4 (dated 2016) - the general description of the matter to which the invoice relates, details regarding the signoff of the invoice and an attached breakdown all details of which have been withheld. I have already found two excerpts in the breakdown to be exempt under section 31(1)(a), which do not fall for further consideration;
- Records 5 and 8 (dated 2016 and 2018) - the general description of the matters to which the invoices relate and details regarding the signoff of the invoices;
- Record 6 and record 7 (both dated 2018) – the general description of the matters to which the invoices relate and attached breakdowns all details of which have been withheld.
Eirgrid released two of the payment records in full and the other two in part. It says that the details withheld from one payment record (dated 2017) are not covered by the request because they concern the payment of an invoice that does not concern services provided under the Agreement. The applicant did not comment on this. I have no reason to dispute what Eirgrid says and I accept that the relevant details are not covered by this review. I will not consider them further.
The two details withheld from the other payment record refer generally to the matters to which the underlying invoices relate. Eirgrid has also withheld these under section 36(1)(b).
Section 36(1)(b) – commercially sensitive information
Section 36(1)(b) requires the refusal of access to records containing certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. 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 section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.
The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 Cross J. held that it is not sufficient for a 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. A party opposing release should explain why disclosure of the particular records could prejudice their financial position. Furthermore, a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. In the Supreme Court case of Sheedy v the Information Commissioner ([2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35) Kearns J stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.
It is noted that, in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 5 (the eNet judgment), the Supreme Court said that “it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest. ”
Analysis and Submissions of the Parties
Although section 36 is generally concerned with the interests of third party private sector businesses, the Commissioner accepts that the provision can be relied on to protect the commercial interests of State and FOI bodies.
At the outset, it should be noted that withheld details do not fall for release simply because there is an ongoing appeal in relation to them, which appears to be Mr. X’s position. Neither do I accept his view that they fall for release because they relate to legal matters supporting the normal course of business of ESB and Eirgrid in relation to the carrying out of statutory functions. Mr. X also says that details concerning some of the legal matters concerned are publicly available on the Courts Service website and are often reported in the media. He did not provide any evidence of this publicly available information.
I will deal with the breakdowns first. I accept that the details of time spent on particular tasks by various ESB in house legal advisors can, in conjunction with the total value of an invoice, be used to arrive at the advisors’ hourly rates as set out in the Agreement. I understand that the Agreement is no longer in use. Nonetheless, ESB says that release of the breakdowns could enable parties, with which it is in negotiations for the recovery of legal costs, to make arguments regarding the time spent or rates charged on other matters in a manner prejudicial to ESB’s negotiating position. Eirgrid makes a similar argument.
Mr. X says that the records released to Mr. Z disclose time spent and fees charged by ESB to Eirgrid in relation to particular tasks in certain cases to which the Agreement is relevant. He says that the similar information here should also be released. He says that any dispute over the discovery of legal costs would ultimately be determined by the Taxing Master, whose decisions are publicly available and that the disclosure of the records cannot prejudice ESB or Eirgrid’s position in this regard.
Both ESB and Eirgrid say that the breakdowns released to Mr. Z were released in error. This does not of itself require me to find that the different records at issue in this case are exempt. Neither, however, does the release of information create a precedent by which I am bound in this case.
I am satisfied that the breakdowns include information about ESB’s rates that is not in the public domain. I accept Eirgrid and ESB’s explanations of why such details remain sensitive today. It is also relevant that parties to litigation generally seek to negotiate and settle disputes regarding costs between themselves in the first instance without resorting to the additional administration etc. that would be involved in referring the matter to the Taxing Master. I accept that the breakdowns are exempt under section 36(1)(b) on the basis that their release could prejudice ESB’s competitive position in the conduct of its business, specifically in this case by prejudicing its ability to negotiate the recovery of legal costs. I find that section 36(1)(b) applies to the breakdowns. There is no need for me in these circumstances to consider other arguments made by the parties concerning the details in these documents.
I see no reason to consider that details regarding the signoff of the invoices are exempt under section 36(1)(b), nor has this been argued by the parties. ESB says that disclosure of the general description of the matters to which the various invoices relate, and the two details withheld from the remaining payment record (i.e. that dated 2014), could result in exploitative litigation targeted at those matters, which could result in financial loss. The details concerned comprise very general references to particular projects/legal matters. I have no information or argument before me to explain how disclosure of such general information could of itself result in litigation targeted at those or other projects. I do not accept that section 36(1)(b) applies to these details.
Exceptions to section 36(1)
Sections 36(2) and (3) provide for various circumstances in which the exemption at section 36(1) does not apply. I will consider these in relation to the records that I have found to be exempt under section 36(1)(b) i.e. the breakdowns in records 4, 6 and 7. Eirgrid says that section 36(2) does not apply and I agree. Both it and ESB say that the public interest (section 36(3)) does not weigh in favour of the release of the information.
Mr. X says that it is in the public interest to understand how one body paid public money to another in relation to litigation taken against members of the public in the Irish Courts. He says that all public funds should be spent in a transparent and clear manner having regard to the duties of public bodies to retain records of their expenditure, including the reasons why such monies were spent. He says that there needs to be 100% transparency regarding the expenditure in this case, and the works provided on foot of it, because the monies were paid further to a contractual arrangement that was agreed entirely “in-house” between Eirgrid and ESB without any public consultation or procurement process.
It is not appropriate for me to direct the release in the public interest of information that is exempt under the FOI Act, effectively to the world at large, on the basis that the applicant may be dissatisfied with how Eirgrid and ESBN arrived at the Agreement or with their actions generally. Neither is it appropriate to direct such release simply because a particular body is funded by public money generally and/or charges paid by the general public.
On the matter of the public interest, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 IR 729, [2011] IESC 26) (“the Rotunda case”). It is noted that a public interest (“a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law”) should be distinguished from a private interest.
On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have also had regard to the E-Net judgment. Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.
It should also be noted that I consider the comments of the Supreme Court in both judgments cited above to be relevant to the consideration of public interest tests generally.
The details already released from records 4-8 disclose the total amounts invoiced to Eirgrid by ESB arising from work carried out by individual ESB staff further to the Agreement. Release of the breakdowns attached to records 4, 6 and 7 would offer further, but in my view minimal, insight into how some of those total amounts were calculated. On the other hand, I have accepted that the details have considerable current commercial sensitivity to ESB. Having considered the matter carefully, I believe that the public interest weighs in favour of protecting the breakdowns.
Section 37(1)
Eirgrid is relying on section 37(1) in relation to the names of employees, individual landowners and litigants as contained in the records covered by part 1. I note that the breakdowns refer to identifiable landowners. They also identify particular ESB legal staff in the context of their grades/job titles, particular tasks carried out by them and how long those tasks took. The description of the invoice in record 8 contains the names of certain landowners as well as other information that in my view identifies the landowners even in the absence of their names. Finally, I am taking it that Eirgrid is also applying section 37 to the details withheld from records 4, 5 and 8 regarding staff who signed off on the invoices concerned.
Although Mr. X says that this Office can redact names if they are considered exempt under section 37, he also says that he should be given the names because Eirgrid did not rely on section 37 to withhold names from the records released to Mr. Z. As I have already said, such release does not create any precedent that I must follow in this case. If release of the above mentioned information would disclose personal information then I am required to find section 37(1) to apply.
Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (iii) information relating to the employment or employment history of the individual and (xiii) information relating to the property of the individual. It has been settled by the Courts that once information falls within one of these “listed classes” in the definition, it is personal information.
Landowners’ details
Mr. X says that section 37 cannot apply to the landowners’ names because details of legal proceedings issued by Eirgrid and ESB against them is available on the Courts Service website. He also says that the invoices do not disclose any financial or other personal information about the individuals.
Eirgrid says that the details identify individual landowners in the context of Eirgrid projects on their properties, most of whom are not litigants. It says that while the names of those who are litigants may be in the public domain as parties to High Court proceedings, other details relating to them as contained in documents concerning those proceedings are not.
It is not relevant to this Office’s review whether some of the individual landowners are litigants. The records relate to various legal matters arising from Eirgrid projects on the individuals’ properties. In that context, I am satisfied that the withheld names as well as the general description redacted from record 8 comprise the personal information of the individuals concerned. I find that section 37(1) applies to these details.
Sections 37(2) and (5) provide for various circumstances in which the exemption at section 37(1) does not apply. Of the various exceptions, I consider that only section 37(5)(a) is relevant in this case, which provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.
I have already set out the Supreme Court’s comments on the public interest matters that I may take into account. Specifically in relation to section 37, both the language of that provision and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
Eirgrid says that the public interest does not weigh in favour of the release of the information. I have already set out and commented on the applicant’s arguments regarding why the public interest weighs in favour of granting his request.
As already noted, the details released from the records covered by part 1 show the total amounts invoiced for and paid regarding legal issues arising from projects on unspecified properties. Disclosure of the property owner names will identify the properties concerned and reveal that legal matters arose in relation to them. I accept that release of the names will, to a certain extent, provide further insight into the activities of Eirgrid and ESB. However, this does not mean that there should be no protection of privacy rights of individuals. It is not relevant in this respect whether some of the landowners became subject to litigation by Eirgrid and/or ESB.
It seems to me that Eirgrid’s partial release of records covered by part 1 attempts to strike a balance between the competing interests. I am satisfied that placing the withheld details in the public domain would breach the rights to privacy of identifiable individuals. Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the specific redacted information that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
Staff details
Having regard to the above findings, I do not consider it in keeping with the Commissioner’s approach to section 18 of the FOI Act to consider directing release of the other details in the breakdowns, including the names of any ESB staff therein.
Insofar as details showing the signoff by Eirgrid staff have been withheld from the invoices, I accept that details identifying them in the context of the performance of work-related tasks relate to information about their employment and employment history. Section 2 of the FOI Act contains some narrow exclusions to what may be considered to be personal information of public servants or contractors. While the exceptions do not deprive public servants of the right to privacy generally, they include “anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions.” It seems to me that this exclusion applies such as to dis-apply section 37 to details showing the signoff by Eirgrid staff of invoices. I find that section 37(1) does not apply to these details and I direct that they be released.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby vary Eirgrid’s decision. I affirm its refusal to release further records covered by the request under section 15(1)(a). I find that most of the withheld details are exempt from release under sections 31(1)(a), 36(1)(b) and 37(1) of the FOI Act.
However, I find that the general description of the matters to which the invoices in records 4, 5, 6 and 7 (part 1) and the remaining payment record (part 1) relate and the details regarding the signoff of the invoices in records 4, 5 and 8 (part 1) are not exempt from release and I direct that access be granted 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 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.
Deirdre McGoldrick
Senior Investigator