Mr. Pat Swords and Eirgrid PLC

• Case Number: CEI/10/0004
• Decision Date: 14 June 2010
• Issuer: Eirgrid PLC
• Applied Rules: Art.7(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Pat Swords and Eirgrid PLC

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/10/0004

Published on 14 June 2010

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

European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007)

Appellant: Mr. Pat Swords

Public Authority: Eirgrid PLC, The Oval, 160 Shelbourne Road, Dublin 4

Whether Eirgrid was justified in its refusal of access to environmental information comprising its official response to the Poyry study concerning Wind Energy published in July 2009

Summary of Commissioner's Decision:

The Commissioner found that Eirgrid was justified in its decision to refuse the request on the basis that it did not hold environmental information within the scope of the request. She found that section 7(5) of the Regulations allows Eirgrid to refuse a request on the basis that the information is not held by it

Background

On 4 December 2009, the Applicant sent an email message to Eirgrid seeking ''the official response of Eirgrid to the Poyry report they participated on: http://poyry.com/index_cases_12.html. " He quoted the Access to Information on the Environment legislation.

Following clarification as to which report was at issue, Eirgrid's response of 6 January 2010 said that it had hosted a discussion meeting on the Poyry intermittency study, which was not an Eirgrid study, and would be happy to invite the Applicant to further seminars on the subject of renewables. The Applicant, on 13 January 2010, requested a formal statement as to the conclusions reached on the study. He commented on the costs of Ireland's proposed wind energy programme.While my Office accepted this as an internal review request under Article 11(1) of the Regulations, I note that the Applicant did not address it in such terms. On 15 February 2010, Eirgrid issued a response stating that the report was not its report and it had no comment to make on it. Again my Office accepted this as an internal review decision for the purposes of Article 11 of the Regulations although Article 11(2) requires that the review decision be made by a person unconnected with the original decision and holding the same or higher rank than the original decision maker. It appears that the Eirgrid decisions were both handled by the same officer.

The Applicant, on 16 February 2010, forwarded correspondence to my Office referring to Eirgrid's refusal to comment on the Poyry report. He paid the statutory appeal fee and his submission was accepted as an appeal for the purposes of Article 12 of the Regulations.

I have taken account of the submissions of the applicant and Eirgrid, the Regulations and Directive 2003/4/EC on public access to environmental information (the Directive). What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.

Anne O'Reilly, Investigator in my Office, sent her preliminary views to the applicant on 28 April 2010. The Applicant responded on the same day and requested that I bring this appeal to a conclusion by way of a formal binding decision.

Scope of Review

Under Article 12 of the Regulations, I must review the decision of Eirgrid and affirm, vary or annul it. I emphasise, as I have had to do in other cases, that it is outside my remit as Commissioner to adjudicate on how public authorities carry out their functions generally. My Office does not have the authority to investigate complaints against public authorities or to provide an alternative dispute mechanism with respect to actions taken or not taken by public authorities; my role is confined to that prescribed in relation to appeals against decisions on requests for access to environmental information.

The Applicant has stressed the importance of his reasons for the request and his disagreement with certain actions and policies. If this were a case on which release of the information had to be considered in the light of the public interest it is possible that arguments as to the reasons behind the seeking of the environmental information might be of relevance. However, as a general principle, neither the Directive nor the Aarhus Convention require that the reasons for the making of a request be taken into account in any decision on whether to grant a request. Indeed, under the Convention, public authorities are not allowed to require the applicant to state his or her reasons or how the information is intended to be used. Article 3 (paragraph 1) of the Directive refers to ''any Applicant at his request and without his having to state an interest''. I take it that the intention is to ensure as far as possible that all member s of the public are treated equally in the...