Mr W and Eirgrid

• Jurisdiction: Ireland
• Judge: Deirdre McGoldrick Senior Investigator
• Judgment Date: 22 October 2021
• Case Outcome: The Senior Investigator varied Eirgrid's decision. She annulled its decision and directed the release of the record. She found that it was justified in refusing access to further information under section 15(1)(a).
• Record Number: OIC-104052-L1N4V9
• Court: Information Commission
• Respondent: Eirgrid

Whether Eirgrid was justified in refusing access to records relating to procurement for the North South Interconnector Project, under sections 15(1)(a) and 36(1) of the FOI Act

22 October 2021

Background

On 25 January 2021, the applicant made an FOI request to Eirgrid for specified records regarding the procurement of steelwork/pylons for the North South Interconnector Project. On 27 January, Eirgrid issued a decision. It refused access to the information sought under section 15(1)(a) of the FOI Act, on the basis that the records did not exist as they did not belong to Eirgrid. On 28 January 2021, the applicant applied for an internal review. On 17 February 2021, Eirgrid issued an internal review decision, in which it varied its original decision. It identified three records. It granted access to two records and refused access to the remaining record under sections 36(1)(b) and 36(1)(c) of the FOI Act. It said that no other records were obtained following its new search and relied on section 15(1)(a). On 18 February 2021, the applicant applied to this Office for a review of Eirgrid's decision.

In conducting my review, I have had regard to the correspondence between the applicant and Eirgrid as outlined above, the correspondence between this Office and both parties, and to the content of the records that were provided to this Office by Eirgrid for the purposes of this review. I have also had regard to submissions received from ESB Networks (ESB).

Scope of this Review

The scope of this review is confined to whether Eirgrid was justified in refusing access to the withheld record under sections 36(1)(b) and (c) of the FOI Act. The applicant asked this Office to examine the adequacy of searches undertaken by Eirgrid. I will therefore consider whether section 15(1)(a) applies.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following. First, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.

Secondly, in his application for review, the applicant said that the internal review decision-maker does not work for Eirgrid and asked this Office to address that point. The Investigator sought clarification from Eirgrid. Eirgrid confirmed in writing that the decision-maker at internal review stage “is a member of staff of Eirgrid, which operates as a group”. I therefore do not propose to consider this point further.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision-maker and the reasoning used by the decision-maker in arriving at his decision. Also, I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision-maker was justified in coming to the decision that the records sought do not exist or cannot be found.

During the review process, the Investigator asked Eirgrid about its record-management practices and the steps it had taken to search for any records falling within the scope of the request. Eirgrid says that the procurement of materials does not fall within its statutory remit. It says that ESB is responsible for the purchase of materials, as well as contracts for the construction of projects. It says that in general, Eirgrid is not privy to the type of documents requested and in this instance has not received the requested documents from ESB. Eirgrid says that nonetheless, to be prudent, it conducted a comprehensive search to ensure that this was the case regarding this particular project. It says that it found no...