Mr Frank Mulligan, Ms Margaret Mulligan and Ms Mary Horan and Eirgrid plc

• Case Number: CEI/15/0005
• Decision Date: 09 June 2016
• Issuer: Eirgrid plc
• Applied Rules: Art.9(1)(c), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr Frank Mulligan, Ms Margaret Mulligan and Ms Mary Horan and Eirgrid plc

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0005

Published on 9 June 2016

1. Background
2. Preliminary issue: identifying the subject records
3. Scope of Review
4. Analysis and Findings
5. Decision
6. Appeal to the High Court

Background

On 24 September 2014, the appellants submitted an AIE request to EirGrid, saying that "the following information is requested:

• Are losses and liabilities arising directly or indirectly from electromagnetic field (EMF) exposure specifically covered in any EirGrid insurance policy?
• Are losses and liabilities arising directly or indirectly from EMF exposure specifically excluded from any EirGrid insurance policy?
• Copies of the relevant parts of EirGrid's insurance policies which indemnify it against losses and liabilities arising directly or indirectly from EMF exposure. Please note that I do not wish to receive a standard letter of public liability insurance cover.
• Copies of all correspondence between EirGrid and its insurers, reinsurers or insurance brokers which relate to EMF risks.
• Any other documents including emails, memos, reports and analysis relating to insurance cover for EMF losses and liabilities."

The appellants asked for "yes or no" answers to points 1 and 2. EirGrid invoked article 7(2)(b) of the AIE Regulations and informed the appellants that it required an extension of a month in order to deal with the request. In its subsequent decision, EirGrid: said "no" to the questions raised in points 1 and 2; denied holding any information within the scope of points 3 or 4; and agreed to provide access to some information within the scope of point 5. EirGrid refused access to internal records of its legal department's correspondence, saying that this information is "subject to legal privilege and not releasable under the premise of the AIE Regulations". EirGrid added that "any EMF risk would be covered by the Electricity Supply Board's (ESB's) Public Liability Insurance Policy" and suggested that the appellants might refer their request to the ESB.

The appellants asked EirGrid to review its decision regarding points 4 and 5. They did not challenge EirGrid's position on legally privileged documents.

In its review decision, EirGrid affirmed its decision on point 4 (saying that no such information was held) and said that it had "varied" its decision on point 5: it now said that it held a copy of an ESB insurance policy which expressly covers EirGrid (as a named party) for EMF risks. EirGrid refused access to this policy because it was "commercially sensitive and confidential in nature, and its disclosure would adversely affect the legitimate economic interests of the insured parties", citing article 9(1)(c) of the AIE Regulations. On 2 February 2015, the appellants wrote to EirGrid saying that they were of the opinion that EirGrid had been forthcoming to a certain extent on points 1 -3. However, they said that they were not at all satisfied with the response to points 4 and 5 and would be appealing the decision. Accordingly, my Office received their appeal on 10 February 2015.

I regret the delay which occurred in dealing with this matter. Due to a shortage of resources in my Office (which has since been addressed), investigation did not begin until 18 December 2015. There was then a further delay while EirGrid attempted to resolve a problem which arose when it undertook to conduct a fresh search for records.

Preliminary issue: identifying the subject records

When appeals are made to my Office in relation to specific parts of internal review decisions, my practice is to restrict my review to those parts. There was some confusion in this case about which parts of the internal review decision were being appealed. My staff contacted the appellants and they confirmed that their appeal related only to parts 4 and 5 of the AIE request. It therefore does not concern a request for access to information in an insurance policy.

Another issue was whether the appeal included a challenge to EirGrid's decision on legally privileged records. EirGrid expressed the view that since the appellants did not refer to this issue when they requested an internal review of the original decision, their appeal does not challenge this issue. I note that, in a number of submissions to my Office, the appellants articulated what they saw as the shortcomings of EirGrid's responses. They challenged the justification to refuse access to records on commercial confidentiality grounds. They did not raise the issue of legal privilege. I therefore accept that access to legally privileged information does not form part of this review. For the record, I wish to add that it is not correct to say that information which is subject to legal privilege is "not releasable under the premise of the AIE Regulations": whether or not it should be released depends on a public-interest test to be made by the decision-maker.

The appellants submitted that "there must be some correspondence between EirGrid and their insurers on the subject" (i.e. EMF) "and it is this correspondence that we wish to see". This review therefore concerns all correspondence between EirGrid and its insurers, reinsurers or insurance brokers which relates to EMF risks, and any other documents including emails, memos, reports and analysis relating to insurance cover for EMF losses and liabilities, except for legally privileged records of EirGrid's correspondence (if any) with professional lawyers who provided it with legal advice.

Following its first search for records, EirGrid provided my Office with 5 documents. On examining these records, my investigator noted that 3 post-dated the AIE request and were therefore outside of the scope of my review. He noted that the other 2 documents were outside of scope because their content is not captured by points 4 or 5 of the request. My investigator wrote to EirGrid on 5 February 2016 asking for an account of how EirGrid had conducted its search for records and emphasising that, to complete my review, I would need to be satisfied that all relevant records had been made available to me.

EirGrid responded by explaining that, since the earlier document search, it had purchased software designed to conduct comprehensive searches for records. After using that software to complete a fresh search, EirGrid provided a further schedule which listed additional documents as records 1 to 6. EirGrid submitted that 3 of these were relevant to point 4, and 3 were relevant to point 5. I examined those records and found the following to be the case:

• The records consist of emails. Some are email chains. I regard each individual email as a separate document. There are, therefore, more than 6 documents under this schedule. Some emails are duplicated in other records listed in the same schedule.
• Setting aside duplications, there are 4 emails which contain information which is within scope. They are:
• Record number 1: a 1 page email.
• One part of record 3: a 2 page email.
• One part of record 5: a 1 page email.
• Record number 6: a 1 page email.

The subject of my review, therefore, is any environmental information that is in these records and within the scope of the request.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is to review EirGrid's internal review decision and to affirm, vary or annul it.

In conducting this review, I have taken account of the submissions made by the appellants and by EirGrid. I have had regard to: the 2013 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, upon which the AIE Regulations are based (the AIE Directive); 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).

Statutory provisions

Article 3(1) provides that "environmental information" means:

any information in written, visual, aural, electronic or any other material form on:

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and...