Mr Lar McKenna and ESB Networks

• Case Number: CEI/13/0010
• Decision Date: 11 December 2015
• Issuer: ESB Networks
• Applied Rules: Art.9(2)(a), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr Lar McKenna and ESB Networks

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/13/0010

Published on 11 December 2015

1. Background
2. Scope of Review
3. Analysis and Findings
4. Decision
5. Appeal to the High Court

Appeal to the Commissioner for Environmental Information Case CEI/13/0010

European Communities (Access to Information on the Environment) (AIE) Regulations 2007 to 2014

Appellant: Mr. Lar McKenna

Public Authority: ESB Networks (ESB)

Issue: Whether ESB was justified in refusing the appellant's request for access to certain categories of records relating to "thermal and hydro-electric power generation schemes and the effect of those schemes on land"

Summary of Commissioner's Decision: In accordance with Article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of ESB and found that it was justified in refusing the request under Article 9(2)(a) of the Regulations. He affirmed the decision of ESB accordingly.

Background

In a request dated 22 April 2013, the appellant sought access under the AIE Regulations to records relating to "thermal and hydro-electric power generation schemes and the effect of those schemes on land". In particular, in reference to an article prepared by Amicus Technology Limited, the appellant sought access to the following categories of records:

• a copy of the records within the ESB 'master database' of property;
• a copy of the records within the ESB 'Excel spreadsheet' which contains all of the ancillary information for the property (land) held in the 'master database';
• a copy of the records within the ESB 'Access database';
• copies of the property related records and associated maps including copies of the rights of way and wayleaves.

In a decision dated 21 June 2013, ESB refused the request on the basis that the requested information was not environmental information within the meaning of Article 3(1) of the Regulations. Alternatively, ESB claimed that the request would be be subject to refusal under Articles 9(2)(a) on the basis that it was manifestly unreasonable having regard to the volume and range of information sought. On 28 June 2013, the appellant applied for an internal review of ESB's decision, arguing that the requested information fell within subparagraph (c) of the environmental information and that it should be readily available for dissemination. In a decision dated 13 August 2013, ESB affirmed its original decision. On 11 September 2013, the appellant appealed to this Office against ESB's decision. Regrettably, however, a long delay then arose in dealing with the appeal, which was largely 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 ESB 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; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide] relating to the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which is more commonly known as the Aarhus Convention.

Scope of Review

The question before me is whether ESB was justified in refusing the appellant's request for the specified records relating to "thermal and hydro-electric power generation schemes and the effect of those schemes on land". In a submission dated 16 October 2015, the appellant has sought to modified his request by extending it beyond the database referred to in his request to include information on flood compensation agreements and the details of thermal and electric power stations. However, my review on appeal is confined to the terms of the original request.

Definition of "environmental information"

The AIE Regulations are based on Directive 2003/4/EC. In line with Article 2(1) of the Directive, Article 3(1) of the AIE Regulations defines "environmental information" as

"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 . . . 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 factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,

(d) reports on the implementation of environmental legislation,

(e) cost benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and

(f) the state of human health and safety ... conditions of human life, cultural sites and built structures ...affected by the state of the elements of the environment...or through those elements, by any of the matters referred to in paragraphs (b) and (c)".

The Directive was adopted to give effect to the first pillar of the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which is more commonly known as the "Aarhus Convention". The Directive replaced Council Directive 90/313/EEC, the previous AIE directive, in order to increase public access to environmental information so that an informed public can participate more effectively in environmental decision-making.

ESB's submissions

Not environmental information

In its submissions to this Office, ESB maintains its position that the appellant's request is not for environmental information within the meaning of Article 3(1) of the Regulations. It explains that the appellant's request, which is based on the article by Amicus Technology, relates to an historical mapping project involving the digitisation of maps. The digitisation project was carried out to create a database of certain land in which ESB has an interest, i.e. land associated with ESB's hydro-electric power schemes, but ESB emphasises that the project was a simple digitisation/scanning exercise of existing maps which also involved the compilation of a related Excel spreadsheet and an Access database for administrative purposes. Referring to the digitised maps, the related Excel spreadsheet and the Access database as "the Database", ESB states that the exercise of creating the Database did not impact on the environment in any way. ESB also says that the Database is not used for any operational reason connected with the generation of electricity, the operation of dams or management of fisheries that might potentially impact on the environment. "It is simply a property management tool i.e. it is a record of certain land in which ESB has an interest."

More specifically, ESB contends that a map, digital or otherwise, is not, in and of itself, environmental information, because it simply provides details of a "topographical feature that exists in a particular geographical location (e.g., a river or road)". "The map does not provide details of the state of that feature, such as whether a river is polluted or has changed level or course over time". In support of its position, ESB refers to the guidance note of the UK Information Commissioner's Office (the UKICO) entitled "What is environmental information", which states:

"The state of the elements of the environment covers quality and quantity. It will include physical, biological and chemical characteristics. It is not limited to current conditions, but includes past and predicted future conditions."

Thus, ESB considers that the "key question is whether the information relates to the conditions of the items that make up the environment".

In relation the ancillary information requested, ESB maintains that it is necessary to consider why such information is held in light of the six categories of information set out in Article 3(1) of the definition. ESB says that the ancillary information which is stored in the Excel spreadsheet and the Access database consists solely of:

(a) Townland name;

(b) County name;

(c) The ESB scheme that the property is associated with;

(d) ESB's interest in the land;

(e) The source of the mapping;

(f) The map scale; and

(g) A reference number for the historical OSi map detailing where the original is stored within the ESB archive.

It is ESB's position that this information does not relate to the state of any elements of the environment or to factors affecting those elements. ESB also highlights the fact that the information is held "for administrative purposes". According to ESB, "the information is kept . . . for general business purposes, rather than on the basis that it has any connection with the environmental impact of any of the schemes to which it relates."

Regarding Category 4 of the request, ESB takes the view that the appellant is seeking information in relation to rights of way or wayleaves associated with hydro-electric schemes and recorded in the Database. ESB states: "Any such rights of way or...