Killross Properties Ltd and Electricity Supply Board

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0045
• Decision Date: 28 August 2017
• Issuer: ESB
• Applied Rules: Art.6(1)(d), European Communities (Access to Information on the Environment) Regulations, 2007

Killross Properties Ltd and Electricity Supply Board

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0045

Published on 28 August 2017

1. Background
2. Scope of Review
3. Findings
4. Decision
5. Appeal to the High Court

Background

On 27 July 2016 a representative of the appellant company emailed a request for information under the AIE Regulations to ESB. He said that some of ESB's works (which he referred to as "the activities") on (i) the Maynooth-Ryebrook 110kV line, (ii) the Maynooth-Rinawade 110kV line and (iii) the Dunfirth- Kinnegad-Rinawade 110kV line were carried out on lands owned by the appellant. He referred to these lands as "the Killross lands" and asked for the following:

1. All records held by, created by and received by ESB, including internal communications, in relation to the part of the activities which were carried out on the Killross lands.

2. Correspondence and communications between ESB and EirGrid and/or ESB Networks Limited and/or ESB Networks in relation to the part of the activities carried out on the Killross lands.

3. Correspondence and communications between ESB and EirGrid and/or ESB Networks Limited and/or ESB Networks in relation to the activities.

4. Correspondence between ESB and Intel regarding the activities.

4.* Information (i) describing the total cost incurred in respect of the activities with a breakdown of those costs and (ii) information on the amount paid by Intel or any other third party towards the cost of the activities.

5. Information in relation to all alternatives and options which were considered in relation to the construction of the 110kV 'temporary diversion line' on the Killross lands.

6. Information describing any analysis or examination carried out by or on behalf of ESB in relation to the possible undergrounding of all, or part, of the transmission lines referred to at (i), (ii) and (iii) above.

7. Information regarding the installation and use of the fibre optic cables and associated equipment placed on any and all lines and/or pylons crossing the Killross lands.

8. A copy of any Screening for Environmental Impact Assessment carried out in respect of the activities, whether individually or cumulatively; in particular any screening for Environmental Impact Assessment which was carried out in relation to the activities in conjunction with development within Intel.

(* There were two parts numbered 4 in the request)

On 26 August 2016 ESB notified the appellant that it needed more time, in accordance with article 7(2)(b) of the AIE Regulations, and it would issue a decision by 26 September 2016.

On 26 September 2016 ESB emailed the appellant saying that it was "unable" to deal with parts 1 to 7 of the request under the AIE Regulations because those parts were not in accordance with article 6(1) of the AIE Regulations, because they did not state in terms that are as specific as possible the environmental information that was requested. ESB also said that the request was "very general, broad and potentially voluminous in nature" and offered to assist the appellant in reformulating it. In relation to part 8 of the request, ESB said that it could not locate the requested information. However, as it believed it was held by EirGrid plc, it transferred that part of the request to EirGrid.

The appellant's representative replied on 26 September 2016 saying that if the requested information is not environmental information it should have been refused on that basis. He denied that there was any problem with his request and declined to reformulate it. He said that he did not see from ESB's email of 26 September 2016 that it had made any decision on his request. He said that he understood that, since he had not received a decision within the statutory time period, a decision refusing his request was deemed to have been made. Accordingly, he requested an internal review of that decision.

On 25 October 2016 ESB gave notice of the conclusion of its internal review of part 8 of the request, i.e. the only part of the AIE request which ESB had accepted as valid. This notice affirmed ESB's earlier conclusion that transfer was the appropriate response to that part of the request.

The appellant appealed to my Office on 26 October 2016.

Scope of Review

In most appeal cases, my role is to review a public authority's decision on an AIE request and to affirm, annul or vary it. If I find that refusal was not justified for the reasons given in that decision, my role is to decide whether it would be appropriate for me to require the public authority to make environmental information available to the appellant.

In this case, ESB submitted that there is no AIE decision arising from the AIE request for me to review. Clearly, I must address this as a preliminary issue.

In undertaking my task I took account of the submissions made by the appellant and ESB. I had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister's Guidance); Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based; the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and The Aarhus Convention -- An Implementation Guide (Second edition, June 2014).

Although the appellant appealed against ESB's response to his entire request, I eliminated part 8 of the request from my review and I would like to record my reason for so doing. ESB accepted part 8 of the request as valid and informed the appellant that it could not locate the requested information. ESB also said that, as it believed that the requested information was held by EirGrid plc, it had transferred that part of the request to EirGrid. It went on to notify the appellant of his right to seek an internal review of that decision. The appellant sought an internal review, and the subsequent response from ESB affirmed the original response. ESB later submitted that it had erred in informing the appellant of a right to request an internal review and in conducting an internal review. It now maintains that it did not 'refuse' this part of the request or make any 'decision' on it. ESB agreed with my investigator that, before transferring this part of the request, ESB must first have 'concluded' that the requested information was not held by or for it. However, ESB denied that this 'conclusion' constituted a 'decision to refuse' (or, indeed, a decision of any kind) which is reviewable, on appeal, by my Office. ESB submitted a detailed legal argument to support its position. In the event, at my investigator's request, ESB provided details of how it came to conclude that it did not hold the information sought in part 8 of the request. My investigator put this information to the appellant and the appellant accepted ESB's position. It is therefore unnecessary for me to review ESB's decision on that part of the request. This matter is now outside the scope of my review.

Whether ESB was justified in refusing to accept parts 1 to 7 of an AIE request on the ground of article 6(1)(d) of the AIE Regulations.

The appellant made a single AIE request listing various classes of information sought. While ESB referred to the parts of the request as if they were separate requests, this does not materially affect my review. I am...