Ms Fand Cooney and ESB Networks Limited

• Case Number: CEI/15/0002
• Decision Date: 24 June 2016
• Issuer: ESB Networks Limited
• Applied Rules: , European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Ms Fand Cooney and ESB Networks Limited

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0002

Published on 24 June 2016

Background

Ireland's Electricity Networks

This case concerns electricity supply. The supply of electricity is regulated in Ireland by the Commission for Energy Regulation (CER). Ireland has two electrical supply networks: a transmission network (which supplies electricity from generating stations to transformer stations) and a distribution network (which supplies electricity, at a reduced voltage, from transformer stations to consumers).

The Electricity Supply Board (ESB) was established in 1927 as a statutory corporation under the Electricity (Supply) Act 1927. The ESB describes itself as "a vertically integrated utility", consisting of a number of separate business units which are collectively called "ESB Group". These business units are separate legal entities. ESBN is one subsidiary of ESB Group and it carries out a number of licensed functions:

- It is responsible for the distribution network, as the licensed "distribution system operator" (DSO).

- It is also manages the performance of the licensed transmission system owner (which is the ESB), on ESB's behalf. "Transmission system owner" is usually abbreviated as "TAO", with the "A" standing for "Asset" -- apparently to avoid confusion with the transmission system operator ("TSO") licence held by EirGrid plc.

The AIE request

On 7 November 2014 the appellant submitted an AIE request to ESBN, seeking the following information:

A copy of the full business case submitted to the TSO / ESB Board for transmission reinforcement project number CP0645 "Portlaoise 110kV station - 2 new DSO 110kV transformer bays" (the project) including:

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

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

(c) The justification for the project which may show or make reference to how this project is intended to support 'security of supply'.

(d) Current status of this project.

Prompted by ESBN, the appellant clarified that "TSO" should have read "DSO" and ESBN accepted this clarification.

The core of the request, therefore, was for a business case which was submitted internally within ESBN and/or to the Board of ESB.

On 2 December 2014 ESBN gave notice of its decision. It provided information relevant to parts (a), (b),(c) and (d) of the request, while refusing to provide access to the business case on the ground of article 9(2)(c) of the AIE Regulations.

The appellant requested an internal review of the decision on 10 December 2014 and, on 23 December 2014, ESBN gave notice of its review decision. It refused the request, again citing article 9(2)(c) as justification. It also said that "detailed cost benefit analysis has not yet been completed". The decision-maker added that, in her view, the information requested is not environmental information.

The appellant appealed to my Office on 20 January 2015, seeking a review of this decision.

ESBN informed my Office that the project has not yet been implemented and its planning permission has expired. It is still expected to proceed, albeit in a revised form. A document on EirGrid plc's website indicates that it is expected to be completed in 2017.

Scope of Review

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

In conducting this review, I took account of the submissions made by the appellant and by ESBN. I had regard to: the 2013 Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister's Guidance); Directive 2003/4/EC, upon which the AIE Regulations are based (the AIE Directive); 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)(the Aarhus Guide).

ESB Network's position

ESB made a submission to this Office, on ESB headed paper, which purported to set out the "ESB's position". As this AIE request was addressed to ESBN, which is a separate legal entity and therefore a different public authority, my investigator asked ESBN for an explanation. From the explanation which followed, I understand that ESB Group has an "AIE Co-ordinator" and this person is authorised by ESBN to co-ordinate AIE correspondence on its behalf. In other words, I am given to understand that the decisions on this AIE request, and the subsequent submissions to my Office, are those of ESBN, communicated through the ESB Group's AIE Co-ordinator. I accept this explanation, but it would be preferable if all correspondence emanating from a public authority in relation to an AIE request would be marked so as to make its exact provenance clear.

ESBN put forward multiple reasons as justification for refusal, and its arguments are set out below. I do not reproduce every detail of those arguments in this decision, but I have had regard to all of ESBN's submissions.

The Appellant's position

I understand that the appellant is satisfied that she has been provided with the appropriate information relating to parts (b), (c) and (d) of her original request. In submissions to my Office the appellant argued that refusal of the remaining information is not justified for the reasons given. A synopsis of her arguments is set out below. I did not reproduce every detail of her arguments, but I have had regard to all of her submissions.

Preliminary Issue: identification of the information at issue

When asked by my Office for copies of the withheld records, ESBN provided a schedule of documents, numbered 1 to 3.

Document 1 is entitled "investment appraisal". It appears to be a business case for the project. It includes information on the technical issues and likely costs associated with various options. It then evaluates those options and identifies a preferred solution.

Document 2 is dated 28 February 2015. Since it post-dates the AIE request, it is outside of the scope of this review and will not be considered further.

Document 3 is undated and it lists the estimated completion dates for ESBN projects. It lists the completion target for the project as "2013". This information does not fit within the scope of the request. Most notably, it did not constitute information on the "current" status of the project when the request was made in 2014. Document 3 is therefore outside the scope of my review. In any case, it is publicly available at www.eirgrid.com.

To fall within the scope of the AIE request, document 1 must have been "submitted" within ESBN and/or to the ESB Board, by the date of the request. In response to a question posed by my investigator, ESBN stated that it had not been submitted to the ESB Board by that date. Indeed, ESBN said that it would never send such a document to the ESB Board.

Document 1 is signed as approved by an ESBN manager. A typed note adds "Approval by the relevant manager confirms that the Investment Appraisal document meets the requirements of Asset Management, ESB Networks. This does not infer that expenditure approval is granted". I am satisfied from the above that document 1, which is dated 5 January 2010, had been submitted to the relevant manager in ESBN by the date of the request and it is therefore within the scope of the request.

Accordingly, I am satisfied that the information at issue in this review is that contained in document 1.

I approached this review by considering the following questions:

Question 1: Is there environmental information in document 1?

Question 2: Does the request relate to information on emissions into the environment?

Question 3: Is refusal justified under articles 8 or 9 of the AIE Regulations?

Question 1: Is there environmental information in document 1?

The definition of environmental information

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...