Ms Fand Cooney and the Commission for Energy Regulation

• Case Number: CEI/15/0009
• Decision Date: 07 April 2016
• Issuer: Commission for Energy Regulation
• Applied Rules: , European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Ms Fand Cooney and the Commission for Energy Regulation

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0009

Published on 7 April 2016

Decision of the Commissioner for Environmental Information on an appeal made under article 12(5) of the European Communities (Access to Information on the Environment) Regulations 2007 to 2014 (the AIE Regulations)

Date of decision: 7 April 2016

Appellant: Fand Cooney

Public Authority: Commission for Energy Regulation

Issue: Whether CER was justified in refusing a request for information on an EirGrid project on the ground that it is not environmental information within the meaning of the AIE Regulations

Summary of Commissioner's Decision: The Commissioner found that one of the withheld records was outside the scope of the request and the remaining records constitute environmental information. Accordingly, the Commissioner annulled CER's decision and remitted the request to CER to make a fresh decision on the request in accordance with the AIE Regulations.

Right of Appeal: A party to this appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision, as set out in article 13 of the AIE Regulations. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.

Background

On 14 November 2014, the appellant submitted an AIE request to CER seeking the following information:

1. A copy of the full business case submitted to CER for transmission reinforcement project number CP0585 (the Laois / Kilkenny reinforcement project) (the project) including any supporting documents for the business case such as:

(a) Details of the associated cost / benefit analysis (or other economic analysis as applicable).

(b) The objectives / key drivers / reasons upon which the project is based (short, medium and long term).

(c) Also, details of any approval of capital expenditure that may have been issued by CER to ESB / EirGrid regarding this project.

The appellant asked for the information to be made available by 21 November 2014.

No decision was notified to the appellant within the one month permitted period, and accordingly a decision refusing the request was deemed to have been made on 13 December 2014.

On 18 December 2014, the appellant sought an internal review of the deemed refusal decision.

No decision was notified to the appellant within the one month permitted period. Accordingly, the appellant acquired a right of appeal to this Office, which she exercised on 29 January 2015. My staff informed CER of the appeal and asked CER to provide copies of its records of the request and CER's responses.

CER replied, stating that it had not issued a formal decision on the request and providing a log of correspondence with the appellant. CER explained that it had received two requests from the appellant and that, due to a clerical error, the current request was not directed internally to the "Networks team" until 28 November 2014. CER explained that that team then engaged in "attempting to discuss the request" with the appellant "in advance of issuing a decision" and "this was not possible until January 2015". On 5 February 2015, CER asked my Office for "an extension of time to issue a decision, after which the OIC (sic) may consider the matter further". No extension was granted.

CER replied to the appellant on 10 February 2015. It provided a schedule listing 3 records held by it, which it considered to be within the scope of the request. It refused access to each of these records on the basis that they did not contain environmental information within the meaning of the AIE Regulations. CER informed the appellant of a right of appeal, and indicated that any such appeal should be made in writing to CER.

Notwithstanding CER's approach, the appellant had already appealed to my Office, having rightly regarded CER's failure to deliver decisions within the prescribed timescales as having given rise to deemed refusals.

Regrettably, on 25 February 2015 an error was made by my Office. The appeal was mistakenly deemed by my staff to have been made prematurely, and declared invalid. When the error was discovered on 27 March 2015 a new appeal case was opened. A letter confirming acceptance of the new case was sent to CER on 30 March 2015. My staff have apologised to the appellant for this error and I would like to offer my sincere apologies also. Such an error had not previously occurred and steps have been taken to avoid a recurrence.

Scope of Review

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

In this case, CER did not give notice of an internal review decision within the permitted period. CER's eventual decision, although necessarily invalid due to being late, set out CER's reason for refusing the request and it is this reason which was considered in this review.

In conducting the review I took account of all arguments advanced by the appellant and by CER. 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, 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 3(1) provides that "environmental information" means:

any information in written, visual, aural, electronic or any other material form on --

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,

(d) reports on the implementation of environmental legislation,

(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and

(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);

Article 10(7) provides that where a decision (on an original AIE request) is not notified to the applicant 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 12(4)(a)(ii) provides that an appeal (to OCEI) under this article shall be initiated, where no decision is notified by the public authority (following a request for internal review), not later than one month from the time when a decision was required to be notified under article 11(3).

Preliminary issue: Has all information within the scope of the request and held by or for CER been provided to my Office?

CER provided the appellant with a schedule listing the records held by or for CER which CER regarded as being within the scope of the request. Those records are:

TSO* Revenue Review Queries Response 8", dated 31 March 2010: (*TSO is Transmission System Operator)

CP585 Loughteeog 400/ 100kV Station* Stage 1, dated 16 April 2008 (*also known as the 'Laois / Kilkenny reinforcement project').

GDC Internal Approval Report: an unsigned and undated report (*GDC is Grid Development & Commercial -- a business unit of EirGrid plc).

CER provided my Office with a copy of the schedule and the records. The records contain no information relevant to part (c) of the request.

Record 1 is an EirGrid document which lists a number of projects in a table. This document does not form part of a business case. I therefore find that Record 1 is outside of the scope of the request.

Record 2 is an EirGrid report prepared for submission to the Board of EirGrid for the purpose of seeking capital approval for the project. It includes information which sets out the justification for the project, which is relevant to part (b) of the request.

Record 3 includes cost-benefit analysis for the project, which is relevant to part (a) of the request.

I understand that Records 2 and 3 constitute the...