Mr X and the Commission for Energy Regulation

• Judge: Stephen Rafferty Senior Investigator
• Judgment Date: 25 June 2015
• Case Outcome: The Senior Investigator found that the Commission was not justified in refusing access to the records at issue. He directed the release of the records. He also found that the Commission was not justified in charging the applicant a fee, and directed that monies paid by the applicant be refunded to him.
• Court: Information Commission
• Record Number: 150051
• Respondent: Commission for Energy Regulation

Case No. 150051

Whether the Commission was justified in its decision to refuse to grant access to records sought by the applicant, relating to arrangements as between two entities regulated by it, under sections 30(1)(a), 32(1)(a)(ii), 35(1)(a) and 36(1)(b) of the FOI Act, and whether it was justified in charging the applicant a fee under section 27 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 22 October 2014, the applicant submitted a request to the Commission for access to six categories of information relating to an asset management agreement between ESB and ESB Networks Limited (ESBN). On 21 November 2014, the Commission issued its decision, granting access to one record, but refusing the balance of the applicant's request under section 35(1)(a) of the FOI Act. On 24 November 2014, the applicant sought an internal review of this decision on three grounds. He sought a review of the decision to refuse access to three specific records identified as coming within the scope of his request, the decision to charge a search and retrieval fee of €167.60, and he queried whether any other relevant documents coming within the scope of his request exist.

The internal reviewer issued his decision on 19 December 2014. In that decision, he upheld the original decision to refuse access to the three records. He also decided that the appropriate search and retrieval fee should be amended to €160. Finally, he informed the applicant that having reviewed the searches undertaken and their results, he determined that every reasonable effort was taken to identify and locate all relevant records and that no additional records were identified. The internal reviewer also provided the applicant with a response to certain queries raised by him in his internal review request. On 16 February 2015, the applicant sought a review by this Office of the Commission's decision.

During the course of this review, the Commission raised supplemental arguments relating to the exemptions set out at sections 30(1)(a), 32(1)(a)(ii), and 36(1)(b) of the FOI Act. The applicant, in a telephone conversation of 26 May 2015, indicated that he did not wish to make a further submission to this Office in response to the matters raised by the Commission. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the Commission's decisions on the matter and its communications with this Office, as well as the applicant's communications with this Office and the Commission. I have also had regard to the provisions of the FOI Act.

Scope of the Review

In his application for review, the applicant stated that he required a review of the decision of the Commission to refuse access to the three records at issue and of its decision relating to the search and retrieval fee charged. As he did not raise any concerns as to the completeness of the schedule of records identified as coming within the scope of his request, this review will not consider whether any further relevant records exist. The applicant also requested that this Office examine the manner in which the Commission dealt with his original request. However, this review has been conducted under section 22(2) of the Act and cannot therefore be extended into a wider investigation into how the FOI request was handled by the Commission. Such an investigation, were it to take place, could only be initiated by the Commissioner under section 44(1) of the Act.

Accordingly, this review is concerned solely with the questions of whether the Commission was justified in refusing access to the records at issue under sections 30(1)(a), 32(1)(a)(ii), 35(1)(a) and 36(1)(b) of the FOI Act, and whether the fee charged by the Commission was justified under section 27 of the Act.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that, in a review, "a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." This means that the onus is on the Commission of satisfying this Office that its decision to withhold the relevant information at issue was justified.

The records at issue in this review are as follows:

Email from ESB re Memorandum of Understanding between ESB and ESBN, together with draft Memorandum of Understanding
Correspondence relating to unbundling of DSO (Distribution System Operator) and TAO (Transmission Asset Owner) functions from ESB to ESBN
Draft Personnel Agreement as between ESB and ESBN

Section 30(1)(a)
Section 30(1)(a) of the FOI Act provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the body concerned or the procedures or methods employed for the conduct thereof. Section 30(2) provides that this exemption does not apply if the body considers that the public interest would, on balance, be better served by granting than by refusing the request.

In essence, the Commission's concern is that the release of the records at issue has the potential to inhibit the open and frank communications it...