Mr K and the Commission for Energy Regulation

• Case Number: CEI/16/0022
• Decision Date: 08 August 2016
• Issuer: Commission for Energy Regulation
• Applied Rules: Art.11(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr K and the Commission for Energy Regulation

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0022

Published on 8 August 2016

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

Background

The Commission for Energy Regulation (CER) is the statutory regulator of the electricity and natural gas markets in Ireland. CER regulates the construction and operation of wind farms. On 8 April 2016, the appellant made an AIE request to CER for the following information on eight named Irish wind farms:

1. Copies of the Authorisation to Construct with all of the supporting information and documentation needed by the CER to issue such an authorisation.

2. Copies of the Licence to Generate Electricity with all of the supporting information and documentation needed by the CER to issue such a licence.

3. Copies of the annual reports on environmental performance required to be submitted by licenced generators

4. Copies of any correspondence in regard to compliance to planning or environmental law.

5. Copies (if separate) of environmental information in regard to the named generator grid connections to include inter alia permissions, routings & planning."

On 18 April 2016 CER emailed the appellant and stated that the request had "been deemed voluminous due to the number of records involved". The FOI Officer invited the appellant to modify his request to a more defined scope. The appellant replied by email on the same day, and offered the following modification:

"To narrow this request down in [sic]- I am really looking for information which the developer must supply to demonstrate compliance with Environmental and Planning law.

So in the case of 1 & 2 - it would relate to sections of these documents which relate to the facts that a developer has complied with planning permissions, environmental impact directive (EIA Directive) and habitats directives."

On 21 April 2016, CER's FOI Officer extended the time for making a decision on the request to 3 June 2016. In a decision of 2 June 2016, CER released 12 records relating to six of the eight wind farms. The decision did not include a comprehensive schedule of relevant records considered by the decision maker. CER stated that it did not hold any information relating to the fifth part of the appellant's request. The appellant requested an internal review of the decision of 2 June 2016, and included a table setting out the parts of the request he considered to be inadequately answered. In this table, the appellant described the fifth part of his request as "Supplied (CER has none)" in respect of each wind farm, and therefore I consider it reasonable to conclude that the appellant was satisfied with this aspect of his request, and sought an internal review of the remaining unanswered parts. I therefore find that appellant's internal review request only applied to parts one to four of his AIE request, and I have not considered part five of his request for the purposes of this appeal.

In an internal review decision of 22 June 2016, CER released a further 22 documents. 16 of these documents were redacted on the basis that the redacted information was not environmental information. CER provided the records to the appellant in hard copy, consisting of hundreds of pages. CER did not specify how the 34 records released related to the four parts of the appellant's request. The appellant subsequently appealed CER's internal review decision to my Office.

Scope of Review

Articles 11(5)(b) and 12(3)(a) of the AIE Regulations provide that where a request for environmental information has been inadequately answered by a public authority, a right of appeal to my Office arises. Under article 12(5) of the AIE Regulations, on receipt of a valid appeal, I must review the internal review decision of the public authority, and affirm, vary or annul the decision. I have limited the scope of my review in this appeal to consideration of the omissions evident on the face of CER's internal review decision.

Directive 2003/4/EC (the Directive) implements the first pillar of the 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"). The Directive is transposed into Irish law by the AIE Regulations. In making this decision I have had regard to the Guidance for Public Authorities and others on implementation of the Regulations (May 2013) published by the Minister for the Environment, Community and Local Government [the Minister's Guidance]; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide].

CER's attempt to narrow the request

Article 6(1)(d) of the AIE Regulations requires that a request for environmental information must state, in terms that are as specific as possible, the environmental information that is the subject of the request.

Article 7(8) provides that where a request is made in too general a manner, a public authority must invite the requester to make a more specific request. The public authority must offer assistance to the applicant in the preparation of a more specific request. The Oxford English Dictionary defines "general" in this context as "not specialized or limited in range of subject, application, activity, etc". Under Article 9(2)(b), a public authority may refuse to make environmental information available where the request remains formulated in too general a manner, taking into account article 7(8).

Article 7(2)(b) provides that where a public authority is unable, because of the volume or complexity of the environmental information requested, to make a decision within one month from the date on which such request is received, it may extend the time for making a decision to a date not later than two months from the date of the request.

Article 9(2)(a) provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought.

The above provisions are inter-related in some regards (an overly general request is more likely to capture a large volume of records); however, a request may be well specified in terms of subject matter and nevertheless involve a large range or volume of records.

The AIE Regulations do not oblige public authorities to entertain overly general requests for information. Requests must be reasonably limited with regard to subject matter. In some cases, it may not be evident to a member of the public that a particular subject has discrete subdivisions, and it may be in the interests of all parties to establish at the outset if a more specific request can be made. Article 7(8) places an obligation on public authorities to assist applicants in making a more specific request where appropriate. As the regulator, CER has comprehensive expertise on the subjects referred to in the request and it is possible that elements of the request are too general when viewed in light of the operations of CER and the types...