Mr. Lar McKenna and EirGrid plc

• Case Number: CEI/13/0015
• Decision Date: 24 May 2016
• Issuer: EirGrid plc
• Applied Rules: Art.7(5) Art.9(1)(b) Art.9(1)(c), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Lar McKenna and EirGrid plc

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/13/0015

Published on 24 May 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: 23 May 2016

Appellant: Mr. Lar McKenna

Public Authority: EirGrid plc

Issue: Whether Eirgrid was justified in refusing the appellant's request for access to records relating to the upgrade of the Maynooth-Reybrook 110kV electricity transmission line and pylons (otherwise referred to as "the upgrade works")

Summary of Commissioner's Decision: The Commissioner reviewed the decision of EirGrid under article 12(5) of the AIE Regulations. He was satisfied that article 9(1)(c) applied to certain redacted information relating to the main beneficiary of the upgrade works, but he found that EirGrid was not justified in refusing access to other relevant information falling within the scope of the appellant's request, including information that had effectively been refused under article 7(5) of the Regulations. Accordingly, he affirmed the decision in part and annulled in part, directing that certain information be released and that a fresh decision-making process be undertaken in relation to the addition relevant information held by or for EirGrid.

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

In a request dated 4 April 2013, the appellant sought access to all records relating to the upgrade of the Maynooth-Reybrook 110kV electricity transmission line and pylons, including, but not limited to, certain specified categories of records or information. It is common knowledge that the upgrade works were carried out in response to a Maximum Import Capacity (MIC) request made by a major "demand customer" operating in Co. Kildare. On 30 April 2013, EirGrid notified the appellant under article 7(2)(b) of the Regulations of an extension of the deadline for making its decision because of the volume of the environmental information requested. Subsequently, in June 2013, EirGrid issued a two-part decision in which it provided some information in response to certain matters identified by the appellant as being of particular interest to him and also provided links to publicly available information relevant to the upgrade works; otherwise, however, EirGrid refused access to any relevant records held on the basis that they comprised commercially sensitive information (article 9(1)(c)) or internal communications (article 9(2)(d)).

On 8 July 2013, the appellant applied for an internal review of EirGrid's decision to refuse access to the records requested "other than internal communications". In a belated decision dated 6 September 2013, EirGrid affirmed its original decision but on different grounds. It stated that the information sought related to matters at issue in proceedings before the High Court and suggested that disclosure would adversely affect the course of justice. On 7 October 2013, the appellant appealed to this Office against EirGrid's decision. Regrettably, however, a long delay then arose in dealing with the appeal, which was due to a shortage of resources that has now been addressed.

I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by EirGrid and the appellant. I have also had regard to: the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations; Directive 2003/4/EC, upon which the AIE 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].

As discussed below, I am not satisfied with EirGrid's handling of this case. However, given the length of time this review has been ongoing, the increasingly confusing and difficult process of seeking to determine the exact extent of the relevant records held by EirGrid, and the third party interests involved in relation to the numerous additional records which have come to light to date, I consider that I should bring my review to a close at this stage. I have decided to conclude this matter by way of a formal, binding decision in which I annul EirGrid's decision in part and direct it to make a fresh decision on the request insofar as it relates to the third party records which EirGrid has declined to release and any additional relevant records that EirGrid may hold.

Scope of Review

Difficulties in establishing what information is held

As indicated above, my Office initially was not in a position to deal with the appeal due to a shortage of resources. However, once my Office began its investigation of the matter, further delay arose because of confusion over the scope of the review. EirGrid initially forwarded nine records of a technical nature for the purposes of my review. (Another document entitled "Land Registry Folio 9748" was also referred to in a submission dated 6 August 2015, but it is not disputed that this is a publicly available document that was already made available to the appellant.) EirGrid claimed that it did not hold any additional relevant records other than internal communications and the publicly available information relating to the upgrade works. In support of its claim, EirGrid made a detailed submission outlining the steps taken to search for relevant records.

However, following the applicant's submissions indicating that an overly broad approach to the term "internal communications" may have been taken, EirGrid carried out a new search and, according to a submission dated 22 January 2016, located 66 additional records comprising third party email communications and attachments. The number of additional third party records eventually climbed to 80 following further communications with this Office; these records are listed in a schedule that was provided to this Office on 27 January 2016.

In addition, Eirgrid forwarded two new documents of a technical nature (a "North-West Dublin Demand Strategy Study" and a "Transmission adequacy survey") to this Office without explanation. A third document, - a "Project Implementation Plan" - was referred to in a submission made on 19 January 2016, but no copy of this document had been provided at the time. It seems, however, that EirGrid's failure to acknowledge the existence of these documents previously was an oversight, since its treatment of the records has otherwise been similar to the nine records initially forwarded to my Office. Another document, referred to as "EirGrid PMO public planning unit document", was also belatedly identified as relevant, but is subject to article 7(3)(a) of the Regulations, because it is available for public inspection at the Kildare County Council Planning Department.

My Investigator raised additional search queries based on references that she found suggesting that yet further relevant records may exist. As a result, EirGrid carried out yet another search and apparently located over 45 additional records of a technical nature, as listed in a spreadsheet that was provided to this Office on 9 February 2016. For the sake of some clarity, these additional records will be referred to as the "new" technical records, as distinguished from the "first set" of technical records (the nine records initially identified, plus the North-West Dublin Demand Strategy Study, Transmission adequacy survey, and the Project Implementation Plan).

Redactions to certain records

During the course of the review, the appellant indicated that he is well aware of the identity of the main beneficiary of the upgrade works, but in a submission made on 29 November 2015, he accepted that the name of the particular demand customer concerned and the MIC increase figure may be redacted from the records at issue in order to "ensure that Eirgrid's commercial sensitivity obligations are secured". Subsequently, in February 2016, in response to a progress update that issued from this Office, the appellant accepted that he had "confirmed [his] willingness to accept redacted records", but he asked that this Office nevertheless make a determination on whether the name of the demand customer and the MIC figure should be released. However, once the scope of a review has been narrowed, I do not consider it reasonable to expect this Office to widen it again, particularly where, as here, a considerable amount of work has been undertaken on the basis of the scope of the review as limited.

In this case, EirGrid was informed on 30 November 2015 that the appellant was willing to accept redacted records. EirGrid in turn agreed that, with two exceptions subject to its claim for refusal under article 9(1)(b) of the Regulations (see below), the first set of technical documents could be released subject to, for the most part, limited redactions. In the circumstances, and particularly in light of the third party interests involved, I do not consider that it would be fair or appropriate to make a determination on information that the appellant agreed could be redacted from the records concerned.

However, an examination of the supposedly redacted versions of...