Mr Lar McKenna and EirGrid

• Case Number: CEI/14/0014
• Decision Date: 17 February 2016
• Issuer: Eirgrid
• Applied Rules: , European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr Lar McKenna and EirGrid

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/14/0014

Published on 17 February 2016

Decision of the Commissioner for Environmental Information

on an appeal made under article 12(5) of the European Communities

(Access to Information on the Environment) Regulations 2007 to 2014

(the AIE Regulations)

Date of decision: 17 February 2016

Appellant: Mr Lar McKenna

Public Authority: EirGrid plc

Issue: Whether EirGrid was justified in refusing a request for information relating to: (1) studies on the relationship between electricity lines/pylons and property values; (2) any cost-benefit analyses of such studies; (3) records relating to a code of practice concerning landowners' rights

Summary of Commissioner's Decision: The Commissioner noted that, following the intervention of his Office in the course of this review, EirGrid provided the appellant with access to all of the information which it held it in relation to part (1) of the request. In accordance with article 12(5) of the AIE Regulations, the Commissioner reviewed EirGrid's decision to refuse access to the remaining information. He found that refusal was justified because some of the information is not held and the information which is held is either not environmental information or is environmental information to which the AIE Regulations do not apply by virtue of article 4(1). Accordingly, the Commissioner affirmed EirGrid's decision to refuse those parts of the request.

Right of Appeal: A party to this appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision, as set out in article 13 of the AIE Regulations. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.

Background

On 9 February 2014 the appellant submitted an AIE request to EirGrid, seeking the following information: (1) any records held by EirGrid, including studies, reports or analysis, on the effects of high voltage electricity lines and /or pylons on land and property values; (2) any cost benefit analysis of such studies, reports or analysis; and (3) any records held in respect of the IFA/ESB Code of Practice for Survey, Construction and Maintenance of Overhead Lines in Relation to the Rights of Landowners(the Code), including legal advice, correspondence, and cost-benefit analyses. "IFA" is the Irish Farmers' Association and "ESB" is the Electricity Supply Board.

On 5 March 2014 EirGrid wrote to the appellant, saying that the request was too general. EirGrid asked the appellant to narrow the scope of the request and suggested that he might ask for information about a particular project, piece of infrastructure, development or land-holding.

On 21 May 2014 the appellant clarified the request, but without narrowing it to the degree suggested by EirGrid. EirGrid accepted the request and took this date to be the date when time started to run in relation to processing the request. The items of information sought in the clarified request (as numbered by EirGrid) were:

1. Any records held by EirGrid, including but not limited to, studies, reports or analysis carried out by or on behalf of EirGrid on the effects of high voltage electricity lines and/or pylons on land and property values.

2. Any cost benefit analysis of the studies, reports or analysis referred to at 1 above.

3. Any records held by EirGrid in respect of the Code, including but not limited to:

The minutes of the EirGrid Board meeting wherein it was decided to adopt and use the Code.

Legal advice received by EirGrid in relation to the Code.

Any communication or correspondence between EirGrid and the ESB at the time EirGrid adopted the Code.

Correspondence between EirGrid and the IFA (the third party) in relation to the Code.

The cost benefit analysis carried out in respect of the compensation provisions of the Code.

The cost benefit analysis of the "loss of development" section of the Code.

EirGrid refused to provide access to any of the information requested. It denied that the information sought in parts 1 and 2 of the request was environmental information. It denied access to legal advice on the grounds of legal privilege and because disclosure would adversely affect the course of justice. It denied access to all of the other information requested in part 3 of the request on the ground that it did not hold such information.

The appellant requested an internal review of the decision. In doing so, he clarified that he intended parts 1 and 2 of his request to be understood as a request for information on cost-benefit or other economic analysis and assumptions used within the framework of measures and activities within the meaning of paragraph (e) of the definition of environmental information set out in article 3 of the AIE Regulations. In its internal review decision, EirGrid said that the information sought in parts 1 and 2 of the request was not environmental information because property values cannot be environmental information. However, EirGrid added that, if it was held to be environmental information, refusal would be justified by article 9(1)(b). It affirmed its decision to refuse parts 3.1, 3.3, 3.5 and 3.6 of the request on the basis that it did not hold such information. EirGrid affirmed its decision to refuse part 3.2 on the grounds of legal privilege and article 9(1)(b). In relation to part 3.4 of the request, EirGrid admitted to having since found records of such correspondence but refused to make them available because they did not contain environmental information.

On 22 September 2014, the appellant appealed to this Office for a review of EirGrid's decision.

I regret the delay in bringing this case to a close. The delay was primarily due to a shortage of resources in my Office, which has now been addressed.

In December 2015 my investigator informed EirGrid that, in his opinion, records held by EirGrid in relation to part 1 of the request appeared to constitute environmental information within the meaning of paragraph (e) of the definition set out in article 3(1) of the AIE Regulations (set out below). He added that it was doubtful if refusal to provide access to those records could be justified by the reason given. EirGrid subsequently informed my Office that it had decided to make those records available to the appellant and confirmed on 15 January 2016 that it had done so. In taking this step, EirGrid continued to maintain that the information contained in those records does not constitute environmental information. EirGrid said that the release of records was an attempt to progress the matter, done in the interests of openness and transparency.

Preliminary issue: have all relevant records been identified and made available to my Office?

EirGrid provided copies of records to my Office, listed in 3 schedules. Schedule 1 listed records relevant to part 1 of the request, since made available to the appellant. Despite having refused access to information relating to part 2 of the request on the grounds that it was not environmental information and its disclosure would adversely affect the course of justice, EirGrid informed my Office that it had, in fact, found no records relevant to that part of the request. Notwithstanding this, EirGrid provided copies of records on "costings in general" and listed them in Schedule 2. I reviewed these records and found them to be outside of the scope of the request and did not consider them further. EirGrid maintains that all the records listed in Schedule 2 are already in the public domain in any case. I am not surprised that EirGrid found no records meeting part 2 of the request. It seems to that any such records would have been cost-benefit analyses of studies which were themselves economic and cost-benefit analyses. I am satisfied that the information which the appellant intended to be captured by part 2 was effectively captured by part 1 and since made available amongst the Schedule 1 records. EirGrid maintains that it found no records relating to parts 3.1, 3.2, 3.3, 3.5 and 3.6 of the request, while it listed records relevant to part 3.4 in Schedule 3.

Article 7(5) applies where a public authority says that it does not hold information which has been requested. My approach to cases where a public authority has effectively refused a request on this ground 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 by 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...