Mr Andrew Duncan and Sustainable Energy Authority of Ireland

• Case Number: CEI/13/0005
• Decision Date: 11 December 2015
• Issuer: Sustainable Energy Authority of Ireland
• Applied Rules: Art.4(1), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr Andrew Duncan and Sustainable Energy Authority of Ireland

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/13/0005

Published on 11 December 2015

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

**Appeal to the Commissioner for Environmental Information

Case CEI/13/0005**

European Communities (Access to Information on the Environment) (AIE) Regulations 2007 to 2014 (the Regulations)

Appellant: Andrew Duncan

Public Authority: Sustainable Energy Authority of Ireland

Issue: Whether SEAI was justified in refusing the appellant's request for access to environmental information relating to a study on the viability and cost-benefit analysis of Ireland exporting renewable electricity

In accordance with article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of SEAI and found that its refusal to provide access to the information requested was justified because, having regard to the definition of "environmental information" and article 4(1) of the Regulations, the study and related records do not contain environmental information. Accordingly, the Commissioner affirmed SEAI's decision to refuse the request, while varying the grounds for refusal.

Background

Directive 2009/28/EC (the Renewable Energy Directive) sets targets for the use of renewable energy by EU member states and provides for cooperation mechanisms whereby renewable energy produced in one member state may be exported to another member state and used by the receiving state to count towards meeting its renewable energy targets. In 2011, SEAI, in cooperation with the Department of Communications, Energy and Natural Resources (DCENR), EirGrid and the Commission for Energy Regulations (CER), commissioned a Study on the Viability and Cost-Benefit Analysis for Ireland Exporting Renewable Electricity using the cooperation mechanisms (the Study). In its submission to this Office, SEAI described the Study as a preliminary strategic scoping and exploratory examination of "the landscape of opportunity" and overall viability of Ireland exporting renewable electricity to other member states. The Study was completed in July 2012, by which time the Irish and UK Governments had begun a process of negotiation aimed at establishing a framework agreement to provide for Ireland exporting renewable electricity to the UK. In broad terms, the Study concluded that there is an opportunity [for Ireland] which is "worth exploring further".

On 24 January 2013 the Minister for CENR signed a Memorandum of Understanding on energy cooperation with the UK. The shared Understanding was that Ireland and the UK would collaborate to explore whether an intergovernmental agreement might be entered into under which Ireland would export renewable electricity to the UK. The Minister for CENR stated in the Dáil on 25 March 2014 that publication of the Study was "not appropriate at that stage of the discussions, due to its commercial sensitivity". In April 2014 the Minister reported that the negotiations had stalled because the UK Government was not in a position to conclude an agreement. Indicating that this is not necessarily the end of the matter, the Minister added that, "in the context of a European Internal Market and greater integration, greater trade in energy between Britain and Ireland is inevitable in the post-2020 scenario".

The appellant submitted an AIE request to SEAI on 21 March 2013. He requested access "to the environmental information held by SEAI in relation to the Study", and added that "this request includes but is not limited to:

1. The actual Study.

2. All documentation and correspondence from the stakeholder forum which occurred on 7 December 2011.

3. All correspondence and associated documentation (including review comments) from the following: a. EirGrid; b. DCENR; c. CER; d. trade bodies representing the renewable energy sector; and e. individual renewable energy developers.

4. All documentation and correspondence within SEAI associated with this report."

In its original decision, SEAI refused access to all of the information requested on the grounds that:

1. Making the information available would adversely affect the proceedings of public authorities (a ground mandating refusal under article 8(a)(iv), subject to article 10).

2. Making the information available would adversely affect commercial and industrial confidentiality (a ground permitting refusal under article 9(1)(c), subject to article 10).

3. The request was manifestly unreasonable (a ground permitting refusal under article 9(2)(a), subject to article 10).

4. The request concerns the internal communications of a public authority (a ground permitting refusal under article 9(2)(d), subject to article 10).

5. SEAI denied holding records relating to correspondence with trade bodies or individual developers (a ground permitting refusal under Article 7(5)).

The appellant requested an internal review on 22 May 2013. SEAI gave notice of its decision to affirm the original decision on 24 June 2013. The appellant appealed to this Office on 18 July 2013.

In conducting this review, I have taken account of the submissions made by the appellant and by SEAI. I have had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the Regulations (the Minister's Guidance); Directive 2003/4/EC (the AIE Directive), upon which the 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) (the Aarhus Guide).

I regret the delay in concluding this review: it arose due to a shortage of resources in my Office, which has now been addressed.

Three preliminary issues arise in this case: compliance with the requirement for different decision-makers; compliance with the time-limits for decisions; and the adequacy of the provision of records to this Office.

Compliance with the requirement for different decision-makers

The appellant complained that, contrary to the Regulations, the original decision and the internal review decision were both made by the same person. It would be contrary to the Regulations for this to occur and it could have the effect of rendering the internal review decision invalid. My investigator examined the decision-notices given by SEAI to the appellant. He found that while both notices were signed by the same person, neither disclosed the identity or position of any decision-maker. SEAI has since informed my Office of the identities of two decision-makers, along with a written assurance that the internal review decision-maker was unconnected with the original decision and holds the same rank as the original decision maker. I am satisfied by this assurance that both decisions were made by different people as required by the Regulations.

The Regulations are silent as to whether a public authority ought to disclose the names and grades of decision-makers acting on its behalf. However, I consider it highly desirable that public authorities would disclose such information when giving notice of decisions, in the interests of transparency; an applicant ought to be able to see that the requirements of the Regulations have been met.

Compliance with the time-limits for notification of decisions

SEAI acknowledges that it "appears" not to have complied with the time-frames specified in the Regulations and that, because it was late in notifying the appellant of its intention to extend the period for making an internal review decision, SEAI is deemed to have refused the request for internal review. SEAI says that this arose due to its own error. It says that it proceeded to deal with the request on the basis of the extended deadline and the appellant did not raise this as an issue. SEAI also acknowledged that it notified the appellant of its internal review decision two days after the due date.

Provision of records to this Office

SEAI provided my Office with relevant records, but denies holding any records relevant to parts 3d and 3e of the request, except for two items of correspondence which fall within the scope of part 2 of the request.

Article 7(5) applies where a public body says that it does not hold information which has been requested. My approach to cases where a public authority has effectively refused a request under article 7(5) is guided by the experience of the Information Commissioner: a similar, though not identical, ground for refusal in relation to records ''not held'' is provided for under section 15(1)(a) of the Freedom of Information Act 2014. That approach is to assess the adequacy of the searches conducted by the public authority in looking for relevant records and to decide whether the decision-maker was justified in deciding that the information was not held for or by the public authority. It is not normally my function to search for information.

SEAI says that the reason why it does not hold such records is that it did not receive or engage in such correspondence. SEAI provided me with a description of how it conducted its search for records of this type. The description included an account of how SEAI sought records, including any held by the preceding Head of Department, along with correspondence between SEAI staff and officials from the other public bodies involved in the project. SEAI also described having tasked its Information Technology Manager with searching the electronic...