Company X and Gas Networks Ireland

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 07 July 2020
• Case Outcome: The Senior Investigator found that the decision to refuse access to the records concerned was justified under section 35(1)(b) of the FOI Act. She affirmed GNI's decision accordingly.
• Respondent: Gas Networks Ireland
• Record Number: OIC-60606-G9H7W4
• Court: Information Commission

Whether GNI was justified in refusing access to records relating to a proposed 18 MW data centre, known as the Gemini Data Centre, at IDA Business Park, Ballycoolin, Dublin 15

7 July 2020

Background

In a request dated 29 July 2019, the applicant sought access to records evidencing any communication in the period of 1 January 2016 to 31 December 2016 relating to a proposed 18 MW data centre, known as the Gemini Data Centre, at IDA Business Park, Ballycoolin, Dublin 15. In a decision dated 3 October 2019, GNI refused the request under sections 32(1)(iv), 36(1), and 37(1) of the FOI Act. On 18 October 2019, the applicant requested an internal review of GNI’s decision. On 13 November 2019, GNI affirmed its original decision, but in doing so, it made additional claims for exemption under sections 30(1), 32(1)(a)(iv), and 35(1) of the FOI Act.

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 application for review and 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.

Scope of the Review

The records at issue consist of 61 sets of emails, some with attachments, concerning the Gemini Data Centre project. This review is concerned solely with the question of whether GNI was justified in refusing access to these records under the FOI Act.

Preliminary Matters

There are a number of preliminary matters that I wish to address at the outset.

First, section 25(3) of the FOI act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the contents of the records is limited.

Secondly, section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Lastly, it is important to note that release of records under the FOI Act is regarded, in effect, as release to the world at large given that the Act places no restrictions on the uses to which records released under FOI may be put. In contrast, in the case of a court order for discovery, records are released subject to an undertaking that they are to be utilised solely for the purposes of the legal proceedings in question; no further use or passing-on is allowed.

Analysis and Findings

It is not in dispute in this case that the records at issue are relevant to ongoing court proceedings between the applicant and the affected third party relating to, among other matters, the timing of availability of grid power at the Project Site. In this context, GNI set out the following reasons in its decision for refusing the request:

• Customer trust in GNI is essential to the establishment of a successful relationship between GNI and its customers and, in turn, to GNI effectively managing its customer relationships. (Sections 30(1)(a) & (b))
• The records directly relate to a dispute with the applicant and are regarded as “highly commercially sensitive”. (Section 32(1)(a)(iv))
• Certain information contained in the records relating to the exact location of gas pipelines, together with the nature of the Project Site and the operations that are conducted there, could pose a security risk to the gas pipeline and Project Site. Certain records also include information detailing GNI’s methods and systems of diligence carried out by GNI for the purposes of ensuring safety of the public and security of persons and property. (Section 32(1)(a)(ix)
• The records contain information that was provided by a third party customer of GNI for the purpose of the natural gas connection process, and includes information of a commercially sensitive and confidential nature, which was provided in confidence to GNI and with the expectation that the information would be treated in confidence by GNI and would not be disclosed publicly. Disclosure would breach customer trust and thus would be likely to prejudice the future supply of similar information to GNI in as full and frank a manner from other customers in future. The receipt of such information from customers as part of the natural gas connection process is essential to the operations of GNI in relation to natural gas connection. In addition, GNI considers that it is bound by a statutory duty of confidence under section 12(1) of the Gas Regulation Act 2013 (the 2013 Act) not to disclose the information concerned. (Sections 35(1)(a) & (b))
• The records contain financial, commercial, and technical information that was provided by the third party customer as part of its application to connect to the GNI network. It is considered that disclosure could reasonably be expected to result in a material financial loss to the third party customer or could prejudice the competitive position of that customer in the conduct of its business as against its competitors. (Section 36(1)(b))
• The records also include personal information that is exempt under section 37(1), namely, names and contact details of employees of third party entities, details on customer points of contact...