Company Y c/o Mr. X and Eirgrid

CourtInformation Commission
JudgeRight of Appeal
Judgment Date26 Aug 2021
Case OutcomeThe Senior Investigator was satisfied that Eirgrid had carried out reasonable searches and that certain records do not exist and found that section 15(1)(a) applies. She found that the majority of the records were exempt under sections 31(1)(a), 36(1)(b) and 37(1) and that the public interest (where relevant) weighed in favour of withholding the details concerned. She found some excerpts of records covered by one part of the request were not exempt and directed Eirgrid to grant access to these.
RespondentEirgrid
Record NumberOIC-60582-G7Q1H7
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-G7Q1H7

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-W8S4T6 and Case Number OIC-53498-L3V6K4). 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...

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