Decision
Mr X and The Commission for Regulation of Utilities
From Office of the Information Commissioner (OIC)
Case number: OIC-144618-X2H4Z0
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URL: http://www.bailii.org/ie/cases/IEIC/2024/144618.html
Cite as: [2024] IEIC 144618
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Whether the CRU was justified in refusing access to records relating to any impact assessment or analysis of the cost to the imperfections charge of enabling energy payments for Demand Side Units (DSU's)
13 December 2024
The applicant is represented by a solicitor in this matter and therefore all references to the applicant in this decision should be taken to include correspondence with the applicant's solicitor where appropriate. On 25 September 2023, the applicant submitted an FOI request to the CRU seeking access to information relating to any assessment of the impact of SEM-22-090 and Mod_02_23 on the imperfections charge and therefore the cost to the customer. In order to narrow of the focus of the search, the applicant specifically requested the following types of records created post November 2022:
-¢ Analysis of cost to the imperfections charge of enabling energy payments for Demand Side Units (DSUs) as laid out in SEM-22-090 and Mod_02_23;
-¢ Any deliberation or cost benefit analysis made on the basis of the above impact assessment;
-¢ Communications between Regulatory Authorities, Transmission System Operators (TSOs) and Market Operators (MOs) regarding the above assessments.
On 20 October 2023, the CRU issued a decision to the applicant in which it refused access to all 51 records that it identified as falling within the scope of the applicant's request. It relied on section 29(1) of the FOI Act in refusing access to all 51 records and it also relied on section 36(1)(b) of the FOI Act in refusing access to records 1, 18, 19, 46, 47 and 48. On 1 November 2023, the applicant requested an internal review of the CRU's decision. On 23 November 2023, the CRU issued its internal review decision in which it varied its original decision. The CRU stated that a number of records have been removed from the schedule as they were outside the scope of the request and a number of new records have been added. The internal review schedule lists 58 records. The CRU refused access to 21 records in part and 37 records in full on the basis that the withheld information falls outside the scope of the request or on the basis that it is exempt from release under sections 29(1), 30(1)(a)/(c), 36(1)(b) or 37(1) of the Act. On 12 December 2023, the applicant applied to this Office for a review of the CRU's decision.
During the course of the review, the CRU informed this Office that the internal review schedule contains clerical errors regarding the provisions of the FOI Act that it relied on in order to withhold certain information. The CRU provided the applicant and this Office with an updated schedule of records containing corrected information in relation to the provisions of the FOI Act that the CRU is relying upon in order to withhold/redact the records concerned.
This Office provided the applicant and the CRU and with an opportunity to make submissions and both parties provided submissions. In its submissions, the CRU said it was no longer relying on section 30(1)(a)/(b) of the FOI Act in refusing access to parts of certain records. The CRU also revised its position in relation to which records it was refusing in full or in part under sections 29(1), 36(1)(b) and 37(1) of the Act. The CRU provided the applicant and this Office with another updated schedule of records. This Office also notified EirGrid and the Utility Regulator of Northern Ireland of the review and provided them with an opportunity to make submissions in relation to the records at issue which may affect their interests and EirGrid provided submissions.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made to date. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the CRU was justified in refusing access in full or in part to records 1 to 58 on the basis that the withheld information falls outside the scope of the applicant's FOI request or on the basis that it is exempt under sections 29(1), 36(1)(b) or 37(1) of the Act.
During the course of the review, I wrote to the CRU and stated that there are inconsistencies between its submissions and the schedule that accompanies those submissions. I stated that this makes it impossible to understand the CRU's position in relation to the records at issue. I provided the CRU with examples of the difficulties encountered in trying to understand its position. I stated that this confusion was not helped by the fact that the CRU has created four different schedules in this case and each schedule contains a different position in relation to the records that the CRU says are in scope and the exemptions that the CRU says it is seeking to rely on.
Records 2, 20 and 21 provide examples of the difficulties encountered in trying to understand the CRU's position. The CRU states, in the appendix to its submissions, that record 2 was not released as this email is delivering record 20 (powerpoint slides) which is a duplicate of record 21. However, in my view the fact that an email contains an attachment which is a duplicate of another record does not mean that the email itself is a duplicate of another record and can be refused on that basis. Record 20 contains powerpoint slides that are headed "DSU energy payments MOD_02_03 SEM Committee." These slides are dated 29/06/23 and are 9 pages long. Record 21 contains powerpoint slides that are headed "DSU energy payments MOD_02_03 for discussion at SEMOC-2". These slides are dated 20/06/23 and are 8 pages long. I have examined record 20 and record 21. The content of both records is substantially different. It is unclear to me why record 20 was refused on the basis that it is a duplicate of record 21.
A further example of the difficulty I encountered in trying to understand the CRU's position is provided by record 18. In the appendix to its submissions, the CRU states that record 18 was not released as the record is outside the scope of the request. In the schedule to its submissions, the CRU states the basis for redaction of record 18 is section 36 of the FOI Act. It is not clear to me from the submissions and the schedule to the submissions whether the CRU's position is that record 18 is refused as it is outside the scope of the request or redacted on the basis of section 36. It does not appear from the records provided to this Office, that the CRU provided the applicant with a redacted copy of record 18.
Following communications with this Office, the CRU said it appreciated and regretted the difficulty encountered in trying to understand its position. The CRU proposed seeking to agree the cohorts of records or parts of records that are out-of-scope and these records could then be excluded from the review. It said as regards any records that the CRU might now agree are in-scope (but were previously deemed by it to be out-of-scope), these would not be made the subject of a decision in the course of this review but would be remitted to the CRU for a decision to be made on them.
In my view, the difficulty with this proposal is that the CRU's approach to the issue of which records fall within the scope of the applicant's request is equally difficult to understand. In its original decision, the CRU located 51 records that it considered to fall within the scope of the applicant's request. It did not redact any of these records on the basis that the information concerned falls outside the scope of the request. In the schedule provided with its submissions to this Office, the CRU listed 58 records and it refused access or redacted 55 of these records on the basis that the information concerned falls outside the scope of the applicant's request. During the course of the review, I also wrote to the CRU and provided examples of information that appears to be related to the applicant's FOI request but which was redacted on the basis that it falls outside of scope of the request.
In my view, there are numerous inconsistencies in the CRU's decision making in this case. I also take the view that the CRU's decision to refuse access or to redact 55 of the 58 records at issue on the basis that the information concerned falls outside the scope of the request represents an unduly narrow interpretation of the request. Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. The onus is therefore on the CRU to justify its decision to refuse access to the records concerned. I am not satisfied that the CRU has justified its decision in this case. I have considered directing release of the records at issue. However, having examined the records and considered the submissions of the CRU and EirGrid, it seems to me that it is likely that a certain amount of the information in the records is commercially sensitive and parts of the records are likely to fall outside the scope of the request. Having considered the matter carefully, I consider that the most appropriate course of action to take in this case is to annul the CRU's decision. The effect of this is that the CRU must consider the applicant's request again and make a new first-instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if it is not satisfied with the CRUs fresh decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the CRU's decision. I direct it to undertake a fresh decision making process in respect of the applicant's request.
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.
Jim Stokes
Investigator