Killross Properties Ltd and EirGrid plc

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0046
• Decision Date: 18 September 2017
• Issuer: EirGrid
• Applied Rules: Art.6(1)(d) Art.7(8) Art.9(2)(a), European Communities (Access to Information on the Environment) Regulations, 2007

Killross Properties Ltd and EirGrid plc

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0046

Published on 18 September 2017

1. Background
2. Scope of Review
3. Decision
4. 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 EirGrid. He said that EirGrid had been involved in 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 on lands owned by the appellant (which he referred to as "the Killross lands"). He asked for the following:

1. All records held by, created by and received by EirGrid, including internal communications, in relation to the part of the activities which were carried out on the Killross lands. Date range from 5 April 2013 to the date of this request.

2. Correspondence and communications between EirGrid and ESB and/or ESB Networks and/or ESB Networks Limited relating to the part of the activities carried out on the Killross lands. Date range from 5 April 2013 to the date of this request.

3. Correspondence and communications between EirGrid and ESB and/or ESB Networks and/or ESB Networks Limited in relation to the activities from 5 April 2013 to the date of this request.

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 EirGrid 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.

On 26 August 2016 EirGrid informed the appellant's representative that the request was very broad and manifestly unreasonable. It asked him to consider making it more specific, and it commented on each numbered part of the request, as follows:

Part 1: "We propose that we can provide you with all reports and studies produced by or on behalf of EirGrid and internal correspondences associated to these in relation to the part of the activities carried out on Killross lands".

Part 2: "We propose that we can provide you with all reports and studies produced by or on behalf of EirGrid and internal correspondences associated to these in relation to the part of the activities carried out on Killross lands".

Part 3: "This part is formulated in too general a manner and may not relate to information which is covered by the AIE Regulations. Please narrow your request to specific classes or types of environmental information."

Part 4: "This aspect of your request is admitted and will be processed once the remainder of your request has been clarified."

Part 5: "This aspect of your request is admitted and will be processed once the remainder of your request has been clarified."

Part 6: "This aspect of your request is admitted and will be processed once the remainder of your request has been clarified."

Part 7: "Information in relation to the installation of fibre optic cables may constitute environmental information but it is not apparent that the use of fibre optic cables would be environmental information. Perhaps you could provide a rationale, based on the provisions of the regulations, as to why the use of fibre optic cables would constitute environmental information?"

Part 8: "This aspect of your request is admitted and will be processed once the remainder of your request has been clarified."

In summary, this email did not convey a decision either to grant or to refuse the request, or to extend the time in which to make a decision. Neither did it say what information EirGrid proposed to withhold. In correspondence with my Office, EirGrid said that this email communicated the fact that EirGrid did not accept the request in its initial formulation and referred to it as a "request for refinement".

On 16 September 2016 EirGrid informed the appellant that it accepted parts 2, 4, 5, 6, and 8 of his request and requested "further clarification in more detail on a number of points". There followed a series of communications between the parties. EirGrid maintained that it had provided the appellant with specific feedback on each part of the request which was causing difficulty. The appellant, on the other hand, complained that EirGrid was required to provide applicants with assistance whereas, in its view, EirGrid was merely inviting it to revise its request without providing assistance.

On 23 September 2016 the appellant emailed EirGrid saying that, since it had not received a decision on its request within the relevant time period, the AIE Regulations deemed that a decision had been made refusing the request. It requested an internal review of this decision.

EirGrid says that it "formally accepted the request in its refined version on 28 September 2016". It appears that by "refined version" EirGrid means a version of the AIE request which it had refined without the applicant's agreement. EirGrid emailed the appellant, saying that "EirGrid does not agree that your request is at internal review stage. An AIE request is not normally accepted until it has been fully clarified. However, for the purpose of moving forward and assisting you in obtaining the environmental information you seek, we have accepted items parts 2, 4, 5, 6, and 8 of your request and will proceed to process these particular items".

On 28 October 2016 EirGrid sent the appellant its response to parts 2, 4, 5, 6, and 8 of the AIE request and provided access to some of the requested information. While EirGrid took the view that this was its initial decision, the appellant regarded it as EirGrid's internal review decision.

On 6 November 2016 the appellant appealed to my Office, calling on me to require EirGrid "to release in full the information sought".

Scope of Review

In most appeal cases my role is to review a public authority's decision to refuse a request and to affirm, annul or vary that decision. If I find that refusal was not justified for the reasons given, 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, I had to first consider the validity of the appeal as a preliminary issue. If the AIE request was invalid, as EirGrid believed, the appellant would not have acquired a right of appeal and I would have no jurisdiction to review EirGrid's refusal to grant the request.

In undertaking my task I took account of the submissions made by the appellant and EirGrid. 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).

Preliminary issue: whether this appeal is valid

The appellant appealed to my Office on the basis of its view that: EirGrid ought to have accepted the AIE request on receipt; ought to have given notice of a decision on the request within one month; since it did not do so, a decision refusing the request was deemed by law to have been made; and, since the appellant requested an internal review within the time allowed, it later acquired a right of appeal; it appealed in time; and this appeal is therefore valid.

EirGrid has a different view: It did not accept the AIE request until 28 September 2016, and then only in part. In a submission to my Office dated 10 November 2016 (three days after the appeal to my Office was initiated) EirGrid said:

"No internal review has taken place and the timeframe for requesting an internal review has not yet elapsed. It is not appropriate for this matter to be accepted as an appeal by the OCEI in circumstances where the statutory process outlined in the AIE Regulations has not been adhered to."

On 27 January 2017 EirGrid made a further submission, denying that a deemed refusal had arisen.

The AIE Regulations set out a strict timeframe for the processing of AIE requests. Time 'starts to run' from the date when a public authority receives an AIE request. In this case the request was sent by email at 17.07 hrs on Wednesday 27 July 2016. EirGrid's website indicates that its normal office hours end at 17.00 hrs on weekdays. I therefore take the date of receipt of the request as Thursday 28 July 2016.

While EirGrid accepts that it received the appellant's request in late July 2016, it did not accept that it had received a valid AIE request until 28 September 2016, and even then only in part. Before that date, EirGrid considered the request to...