Mr Q and ESB Networks Limited

• Case Number: CEI/15/0029
• Decision Date: 06 September 2016
• Issuer: ESB Networks Limited
• Applied Rules: Art.3(1) Art.9(1)(c) Art.9(1)(d) Art.9(2)(a) Art.10(1) Art.10(3) Art.10(4), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr Q and ESB Networks Limited

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0029

Published on 9 June 2016

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

Background

ESB Networks Limited (ESBN) is a ring fenced subsidiary of ESB Group and carries out a number of statutory functions in the electricity market. ESBN is the distribution system operator (DSO), responsible for building, maintaining, and operating the distribution level network infrastructure, (including overhead electricity lines, poles and underground cables). ESBN manages the connection of generators to the distribution system.

This appeal relates to two requests made by the appellant under the AIE Regulations concerning Knocknalour wind farm. Knocknalour wind farm is owned and operated by Knocknalour Wind Farm Limited, a private company. The wind farm is connected to the distribution system operated by ESBN, and has a maximum export capacity of 8.95 megawatts.

The Irish wholesale electricity market is known as the Single Electricity Market (SEM) and is organised on an all-island basis operated by the Single Electricity Market Operator (SEMO). The sale and purchase of electricity is carried out on the basis of a mandatory gross pool, where generators with a maximum export capacity exceeding 10 megawatts must sell into the pool. Generators with a maximum export capacity of less than 10 megawatts, such as Knocknalour wind farm, are not required to participate in the SEM pool. SEMO publishes generation information for generators participating in the SEM (including generators of renewable energy); however, the same data publication system does not apply to generator units which do not participate in the SEM.

The First Request

On 5 September 2014, the appellant emailed ESBN's DSO Generators Commercial and Renewable Regulation Section, and requested access to the following information:

"For the period 1-nov-2013 to the 20-Feb-2014 the electrical output from the Wind Farm at Knocknalour, Co Wexford in as granular details as possible"

In a written decision of 3 October 2014 by the Head of Asset Management, ESBN refused to provide access to the requested information. The appellant requested an internal review and was notified of an internal review decision on 31 October 2014. The internal review was carried out by the AIE Regulations Appeals Manager, an employee of ESB's Business Service Centre. The internal review affirmed the initial decision to refuse the request. The appellant did not appeal his first request to my Office.

The Second Request

On 18 November 2014, the appellant made a second request under the AIE regulations to ESBN. At the time of making his second request, the appellant was within time to appeal the refusal of the first request to my Office. The second request was emailed to ESBN's Head of Asset Management and sought access to the following information:

"For the period

1-nov-2013 to the 20-Feb 2014 and

1st August 2014 to the 30th October 2014

Kindly provide the electrical generated output from the Wind Farm at Knocknalour, Co Wexford in as granular detail as possible - ideally in 10 minute time periods."

In an email of 19 November 2014, an unnamed "AIE Co-ordinator" with ESB's Business Service Centre replied to the second request, and stated that all requests under the AIE Regulations are processed centrally by ESB on behalf of its subsidiaries. The AIE Co-ordinator stated that the subject matter of the second request was the same as the first request, and noted that reasons had been provided for refusal of the first request. The AIE Co-ordinator went on to state "we do not intend to enter into protracted correspondence with you in relation to those decisions". No reference was made to a right of internal review, nor was the email described as a decision on an AIE request.

The appellant renewed his correspondence with ESBN's Head of Asset Management. Between 19 November and 9 December 2014, the appellant emailed staff of ESBN on seven occasions. The ESBN decision maker replied on 27 November 2014 referring the appellant to the reply of 19 November.

On 10 December 2014, the Legal Manager and Compliance Officer of ESBN emailed the appellant in connection with the two requests, and stated:

"You have been informed of your right to appeal the decisions made to the Information Commissioner in accordance with the Regulations. ...The purpose of this letter is to advise you that ESB Networks Limited remains fully satisfied that your requests have been properly dealt with fully in compliance with the AIE regulations."

The letter of 10 December did not purport to be an internal review decision, and did not mention the right of appeal to my Office (the above reference to the Information Commissioner was not correct, and should have referred to the Commissioner for Environmental Information).

In an email sent to the Managing Director of ESBN, the appellant requested an internal review of the second request. There was no response to the appellant's request for an internal review, and he subsequently made an appeal to my Office in January 2015 on the basis of a deemed refusal. On 5 November 2015, ESBN provided the appellant with a statement of its position on the second request. The appellant indicated to my Office that he was not satisfied with the reasons provided by ESBN, and accordingly it falls to me to make a formal, binding decision on appeal.

For the purposes of my review, ESBN provided my Office with the information requested by the applicant, contained in two spreadsheet files and recording the aggregated electrical output of the wind farm in kilowatts at quarter-hour intervals for the dates requested.

ESBN's Position

As a preliminary matter, ESBN submitted that the appellant's second request was manifestly unreasonable with regard to range under article 9(2)(a) of the AIE Regulations. ESBN submitted that the appellant's second request was functionally identical to the first request, as it referred to the same information, albeit with the addition of a second period of time. ESBN characterised the appellant's second request as an abuse of process.

In addition, ESBN submitted that article 9(1)(c) applied to the second request as the disclosure of information on the electrical output of the wind farm would adversely affect commercial confidentiality as provided for by law.

The Appellant's Position

The appellant disputed ESBN's characterisation of his second request as manifestly unreasonable. The appellant submitted that the information requested related to emissions into the environment for the purposes of article 10(1) of the AIE Regulations, and therefore the exception under article 9(1)(c) could not apply. The appellant submitted that, even if article 10(1) did not apply, the exception under article 9(1)(c) could not be relied upon, as similar information to that sought (i.e. information on the output of a renewable electricity generator) is routinely published for generators units participating in the Single Electricity Market system.

The Third Party's Position

In a letter of 14 November 2014, copied to the appellant, ESBN wrote to Knocknalour Wind Farm Ltd to ascertain if the wind farm would consent to the release of the requested information. In a letter of 2 December 2015, sent to ESBN and copied to my Office, a Director of Knocknalour Wind Farm Limited stated that the company did not consent to release as the information was "commercially sensitive" and "fundamental to the economic interests" of the company. An Investigator with my Office wrote to the company seeking further submissions. In a submission of 13 April 2016, Knocknalour Wind Farm Limited stated that it is not a public authority for the purposes of the AIE Regulations and contended that the information sought does not fall within the definition of environmental information under the AIE Regulations. The company also submitted that it was the owner of the information requested, and that the information was commercially sensitive.

Scope of Review

Under Article 12 of the AIE Regulations, my role is to review ESBN's deemed refusal of the appellant's second request (as provided for by article 10(7) and 12(4)(a)(ii) of the AIE Regulations). My review is concerned with whether disclosure of the information requested is required by the AIE regulations. Having had regard to the submissions of the parties, I have considered the following aspects of the AIE Regulations in the course of this review:

• Whether the information sought falls within the definition of "environmental information" set out in article 3(1);
• Whether the appellant's second request was manifestly unreasonable under article 9(2)(a), or otherwise;
• Whether the exception under article 9(1)(d) applies;
• Whether the request relates to emissions into the environment under article 10(1);
• Whether the exception under article 9(1)(c) applies;
• Whether, under article 10(3), the public interest served by disclosure outweighs the interest served by refusal.

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...