Mr J and EirGrid (FOI Act 2014)

• Judge: Senior Investigator
• Judgment Date: 25 May 2018
• Case Outcome: The Senior Investigator varied the decision of EirGrid. She affirmed its decision to refuse access to the majority of the records on the basis of section 36(1)(b). She also affirmed its decision to refuse access to records relating to part 5 of the request on the basis of section 15(1)(a). She annulled its decision to refuse access to record 1 and directed EirGrid to release this record, subject to the redaction of third party information. She also annulled its decision in relation to parts of record 16a and directed EirGrid to undertake a fresh decision-making process in relation to the parts of that record 16a it had considered to be outside scope, and to release the final amount of the winning tender
• Court: Information Commission
• Record Number: 170337
• Respondent: Eirgrid

Whether EirGrid was justified in refusing to grant access to various records in full or in part, relating to the construction of an electricity transmission line in County Westmeath on the basis of sections 36 and 37 of the FOI Act and whether it was justified in refusing to release additional records on the basis of section 15(1)(a)

25/05/2018

Background

On 23 March 2017, the applicant sought access to records relating to the construction of an electricity transmission line in County Westmeath, as follows:

The contract and/or terms of engagement between Eirgrid and Atkins Consulting Engineers (Atkins), the successful tenderer for the project

All tender documents and associated correspondence submitted to Eirgrid by Atkins in respect of the project

The Eirgrid decision to engage Atkins, including all records, minutes of meetings, emails and letters which informed that decision

The Project Agreement and associated documents, including the Project Implementation Plan and the Committed Project Parameters

The Authorisation of a named person to serve Wayleave Notices to landowners for the project

Records, including but not limited to emails, letters minutes of meetings, notes, diagrams, and memos, between Eirgrid and another company (Company X) in relation to the project

Records which describe the total cost of the project and any breakdown thereof

EirGrid's decision on 11 May 2017 part-granted his request. It relied on sections 36 and 37 of the FOI Act to withhold access to information which it considered to be commercially sensitive or to comprise the personal information of third parties.

The applicant sought an internal review as he was of the view that additional relevant records should exist, and that the records withheld on the basis of section 36 should be released in full. EirGrid's internal review decision identified and granted access to some additional records and withheld the remainder in full or in part on the basis of sections 36 and 37.

The applicant applied to this Office for a review of EirGrid's decision on 3 July 2017.

I have decided to bring this review to a close by way of a formal, binding decision. In conducting this review, I have had regard to the correspondence between EirGrid and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and EirGrid, as well as the contents of the records concerned. I have also had regard to submissions made to this Office by Atkins and the ESB.

Scope of Review

In its internal review decision, EirGrid identified 39 records as falling within the scope of the applicant's request. I shall use its numbering scheme set out in the document schedule provided to this Office for ease of reference. It granted access to 24 records in part (records 2, 13-20, 22-24, 26, 28-30 and 32-39) and refused access to 15 records in full (records 1, 3-12, 21, 25, 27 and 31).

During the course of the review, this Office's Investigator asked EirGrid to clarify some matters relating to the records concerned and I note that it confirmed the following:

record 2 and record 34 are the same record which was duplicated in error; record 14 was released in full to the applicant in error and records 4, 6, and 8 are all the same documents. EirGrid also confirmed to this Office that a number of attachments (to records 20, 26/27 (same attachment), 32/33 (same attachment) and 35) had been withheld in error. It undertook to release these to the applicant, and I understand that it did so on 5 January 2018.

I also note that the applicant confirmed to the Investigator that he accepted that no additional records existed relating to parts 1-3 of his original request. He also indicated that he was happy to withdraw part 6 of his request, and he agreed with her view that records 3, 11-12, 18-23, 25-27, 29-33 and 35-38 did not fall within the scope of his request. The applicant has also confirmed to this Office that he is not seeking the personal information of employees of other companies, including Atkins, which is contained in the records at issue. I am satisfied that all of the information withheld from release in records 2, 13, 15-17, 24, 28 and 32 is solely that of employees of third parties.

Finally, I note that EirGrid initially refused to grant access to the contract between it and Atkins, which was listed as record 16 in the schedule attached to its original decision. It has confirmed to this Office that this record was omitted from the schedule accompanying the internal review decision in error. To avoid confusion, I will refer to this record as record 16a.

Accordingly, this review is solely concerned with whether EirGrid was justified in its decision to refuse to grant access to records relating to parts 1-4 and 7 of his request (records 1, 4-5, 7, 9-10, 16a and 39) in full or in part, on the basis of section 36 of the FOI Act, and whether EirGrid was justified in refusing access to records relating to part 5 of the applicant's request on the basis of section 15(1)(a).

Analysis and Findings

EirGrid relied on section 36 to refuse to grant access in full or in part to the records sought. In submissions to this Office, it also relied on section 35 in relation to the records containing tender information. I shall examine the records in relation to Section 36 first.

Section 36 - Commercial Sensitivity

EirGrid relied on section 36 to refuse to grant access to the information contained the records concerned. While it did not indicate what subsection of section 36 it was relying on in its decisions, in its submission to this Office, it concentrated on section 36(1)(b). Section 36(1)(b) provides, insofar as is relevant:

"Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains –

... (b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation,".

However, section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers)

The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. I take the view that the test to be applied in this regard is whether the decision maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b).

The records at issue can be broken down into three categories as follows:

Internal EirGrid records concerning the project - records 1 and 39 which relate to parts 4 and 7 of the applicant's request

Records containing details of submitted tenders (including those of Atkins and unsuccessful tenderers) - records 4-5 and 7 and records 9-10 which relate to parts 2 and 3 of his request

The contract between Atkins and EirGrid - record 16a, relating to part 1 of the applicant's request

EirGrid refused to grant access to all of these records in full, except record 39, which was released in part.

Internal EirGrid records concerning the Project

Records 1 and 39

Record 1 is an internal EirGrid document, setting out the planned milestones, activity and action plans of the project. I note that EirGrid has not made any specific arguments as to why the information contained in this record is commercially sensitive.

Furthermore, as the project has now been completed and the record reflects the position in 2011, I do not see what harm could arise from release. I find that the refusal of access to record 1 has not been justified and I direct the release of this record, subject to the redaction of third party personal information and references to third party companies not within the scope of the applicant's request.

Record 39 is an internal EirGrid document, setting out details of costs, including Committed Project Parameters. In a submission to this Office, the applicant objected to...