Whether EirGrid was justified in its decision on a request for records concerning the award of a particular contract

21 February 2024

Background

Part 1 of the applicant's email to EirGrid of 23 February 2023 sought a statement of reasons for the body's decision to award a particular contract to a named entity (Case No. OIC-142828-R8N6K1 refers).

This particular review deals with EirGrid's decision on parts 2-4 of the applicant's email, which sought access to the following:

2. records in any format "made by EirGrid employees and/or consultants hired by EirGrid or other parties, which discuss or evaluate [the named entity] as an actual or potential bidding party in past or future EirGrid capacity auctions";

3. "-¦ all correspondence by EirGrid with [the named entity] up to and including 4th March 2022 -¦" and

4. -¦ "details EirGrid received from [the named entity] on:

a. financial status

b. plans for financing of proposed power plants

c. details on owners of [the named entity]

d. details on managers of [the named entity]."

EirGrid's decision of 9 March 2023 refused the request under various provisions of sections 35 (confidential information) and 36 (commercially sensitive information) of the FOI Act. I understand that it listed 34 records on an attached schedule.

The applicant sought an internal review on 4 April 2023. He said that his request was not confined to emails and attachments, which according to the schedule were the only type of records considered for release. He also described other records that he said would have been created as part of EirGrid's process and codes. 

EirGrid's internal review decision of 27 April 2023 clarified that its original decision had covered 80 records, i.e. the 34 referred to above, and some further attachments that it had not scheduled. However, it said it now felt that 36 of the 80 records were not covered by the request (the excluded records). It fully released 11 records and partially released the remaining 33 records. It relied on sections 36 and 37 (personal information) of the FOI Act in relation to the redacted details.

On 27 September 2023, the applicant applied to this Office for a review of EirGrid's decision. He said also that EirGrid had not considered all of the records that he had requested, and he commented on how the internal review had considered fewer records than did the original decision.

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. In carrying out my review, I have had regard to the above exchanges, correspondence between this Office, EirGrid and the applicant, and the provisions of the FOI Act.

Scope of Review

This review is concerned solely with whether EirGrid's decision on the applicant's request for records was justified under the FOI Act.

Analysis and Findings

Adequacy of searches -" section 15(1)(a)

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.

I asked EirGrid to supply various details concerning its searches for records. In particular, I asked it to comment on: whether staff and/or consultants involved with the contract had been asked if they hold relevant records; the extent to which written correspondence had been sent to or received from the named entity; and the apparent lack of records showing internal discussion/evaluation of the relevant application and other process-related records. I described particular attachments that the applicant said had not been considered, which I said would appear to be covered by part 3, if not also part 4, of the request.

EirGrid has confirmed that my queries prompted it to identify more than 600 further relevant records. It accepts that it did not carry out adequate searches for records at either original decision or internal review stage. It asked me to annul its decision and remit the matter to it for fresh consideration.

Excluded records

In inviting EirGrid's submissions, I also asked it to describe the 36 records that had been excluded from internal review, and its basis for doing so. Further to discussions on the matter, I understand that EirGrid initially considered the records to fall under part 2 of the request, but that it later excluded them on the basis that part 2 is confined to records created by its employees and/or its consultants. However, part 2 also refers to "other parties". I have drawn this matter to EirGrid's attention and, while I understand that EirGrid may need to clarify its overall understanding of part 2 with the applicant, it seems that the 36 records may have been excluded from internal review in error.

Redactions & overall conclusion

I informed the applicant of the above developments. I also explained to him that (for various reasons including third party consultations that may be needed regarding the redactions) it could take some time for me to issue a decision addressing all aspects of the reviews. I informed him that in all of the circumstances, it seemed more efficient overall to annul the entirety of EirGrid's decision on his request for records, and to direct it to consider the matter afresh. Both the applicant and EirGrid agree with such an approach.

Accordingly, I have decided to annul EirGrid's decision on the applicant's request for records. I direct it to make a new decision on the matter in accordance with the provisions of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul EirGrid's decision on the applicant's request for records. I direct it to make a fresh decision on that request in accordance with the provisions of the FOI Act.

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.
 

Anne Lyons
Investigator