Mr Thomas Freeman and Electricity Supply Board

• Case Number: CEI/16/0010
• Decision Date: 17 August 2016
• Issuer: ESB
• Applied Rules: , European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr Thomas Freeman and Electricity Supply Board

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0010

Published on 17 August 2016

Background

The ESB is a statutory corporation established under the Electricity Supply Acts 1927 - 2004. It has established subsidiary companies under the Companies Acts, one of which is ESB Networks Limited (ESBNL). ESBNL is a wholly owned subsidiary of ESB. "ESB Group" is the term used to describe the ESB together with its subsidiary companies.

On 11 December 2015, the appellant emailed an AIE request to the ESB.

On 8 January 2016, ESBNL gave notice of its decision to refuse the request for stated reasons.

On 11 January 2016, the appellant requested an internal review of the original decision.

On 12 February 2016, an internal review decision refusing the request was notified to the appellant, signed by a person who stated that they were designated as the person to review decisions made by ESBNL.

The appellant appealed to my Office and his appeal was accepted.

Scope of review

Under article 12(5) of the AIE Regulations, my role is to review the decision of the public authority and to affirm, vary or annul it.

In conducting my review I took account of the submissions made by the appellant and by the ESB. I had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations; Directive 2003/4/EC (the AIE Directive), 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).

Relevant AIE provisions

Article 7 of the AIE Regulations sets out the obligations of public authorities when they receive requests for environmental information made pursuant to those Regulations.

Article 7(1) provides that a public authority shall, notwithstanding any other statutory provision and subject only to these Regulations, make available to the applicant any environmental information, the subject of the request, held by, or for, the public authority.

Article 7(2) provides that:

(a) A public authority shall make a decision on a request and, where appropriate, make the information available to the applicant as soon as possible and, at the latest, but subject to paragraph (b) and subarticle (10), not later than one month from the date on which such a request is received by the public authority concerned.

Article 7(5) provides that where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it.

Article 7(6) provides that, where article 7(5) applies and the public authority concerned is aware that the information requested is held by another public authority, it shall as soon as possible --

(a) transfer the request to the other public authority and inform the applicant accordingly, or

(b) inform the applicant of the public authority to whom it believes the request should be directed.

Article 10(7) provides that where a decision is not notified to the appellant within the relevant period specified in article 7, a decision refusing the request shall be deemed to have been made by the public authority concerned on the date of expiry of such period.

Article 11(1) provides that where the applicant's request has been refused under article 7, the applicant may request the public authority to review the decision.

Article 12(3)(a) provides that where a decision of a public authority has been affirmed in whole or in part under article 11, the applicant may appeal the decision to the Commissioner against the decision of the public authority concerned.

Article 12(4)(a) provides that an appeal shall be initiated, where no decision is notified by a public authority, not later than one month from the time when a decision was required to be notified under article 11(3).

The issue

Since my role is to review the decision of the public authority, it follows that I must first identify the decision which I am to review. In the ESB's view, the decisions given by ESBNL were valid. According to this view, the decision to be reviewed is ESBNL's internal review decision. However, the facts of the case cast doubt on this view.

In his appeal to this Office the appellant wrote (with original emphasis in bold):

My original request was submitted to the Electricity Supply Board.... On 8 January 2016 I received a letter from ESB Networks Limited which refused to release the requested information....

The case file shows that:

- The AIE request was sent by email to sustainability@esb.ie and copied to info@esb.ie

- It was addressed to "AIE Officer, Electricity Supply Board".

From this, I am satisfied that the request was made to the ESB. Yet the decisions which issued were made by ESBNL. The ESB did not communicate any decision. I have to determine if it is the internal review decision made by ESBNL which I am to review, or a refusal decision by the ESB, deemed made pursuant to Article 10(7).

My investigator asked ESB why the decisions which followed the requests emanated from ESBNL.

ESB explained that:

"ESB is strongly of the view that the unique position that ESB and ESB Networks Limited (ESBNL) find themselves in (i.e. where ESBNL is, in effect, a "public authority within a public authority") requires a purposive interpretation of the Regulations, which in turn, requires the ESB Group to adopt a process regarding requests made under the Regulations that best facilitates the intent of the legislation - that is, to respond efficiently and definitively to requests made by members of the public to either public authority within the ESB Group. It is perhaps unfortunate that the legislation does not explicitly cater for the position that we find ourselves in (i.e. a "public authority within a public authority"). We think that that it would be counterintuitive to the aims of the legislation (and place an unnecessary expense and administrative burden on those public authorities) to adopt anything other than a purposive interpretation and in so doing force members of the public through arbitrary and unnecessary administrative hoops before addressing the substantive issue of their requests."

In relation to how this request was handled on receipt, the ESB said that:

"The AIE Co-Ordinator logged the requests and forwarded the request to the decision maker in ESBNL for a response. His view was that the records requested were more likely to be held, if at all, by ESBNL (notwithstanding that the request was addressed to the AIE Officer, ESB)."

ESB added that:

"We are unaware of any other circumstance in which a body corporate (in this case ESB) is a public authority and its wholly owned subsidiary (a separate and legally distinct body corporate - in this case ESB Networks Limited) is also (separately and in its own right), a public authority. "

My investigator suggested to ESB that it, as a separate public authority, had not responded to the applicant as required by the AIE Regulations. The ESB disagreed, saying:

"We do not accept that there was no response from ESB - on a purposive interpretation of the Regulations, it was immaterial to which public authority (ESB or ESBNL) the request was (factually) addressed and the ESB Co-Ordinator duly responded by passing the matter to that part of the ESB Group that he felt was most likely to be in the best position to deal efficiently with the...