Ms Mary Horan, Ms Margaret Mulligan and Mr Frank Mulligan and ESB Networks

• Case Number: CEI/14/0009
• Decision Date: 05 August 2016
• Issuer: ESB Networks
• Applied Rules: Art.9(2)(a), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Ms Mary Horan, Ms Margaret Mulligan and Mr Frank Mulligan and ESB Networks

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/14/0009

Published on 5 August 2016

1. Background
2. Scope of Review
3. Analysis and Findings
4. Decision
5. Appeal to the High Court

Background

In a request addressed to ESB Head Office, dated 5 May 2014, the appellants sought access to "copies of: - all correspondence/documentation/pieces of paper generated, and all information known by you, that in any and all ways relate to the entire cost of The Srananagh Station Project ('the Project') . . . including but not limited to original costings for project, compensation to all affected landowners, cost of all construction works, and any and all costs associated with the project, including legal fees and consultation fees". In a decision dated 9 May 2014, which was issued on behalf of ESB by the Head of HV Delivery & Contracting at ESB Networks Limited (a separate public authority from ESB Networks), the request was refused under article 9(1)(c) of the AIE Regulations on the basis that disclosure of the requested information would adversely affect its commercial or industrial confidentiality. On 26 May 2014, the appellants applied for an internal review of ESB's decision. In a decision dated 23 June 2014 that issued from ESB Head Office, ESB affirmed its original decision on the basis that the request did not relate to environmental information as defined in the AIE Regulations. According to ESB, the request was instead for financial information of a commercially sensitive nature. ESB further stated that the information on compensation relates to private matters concerning third parties who have not consented to the sharing of this information.

On 23 July 2014, the appellants appealed to this Office against ESB's decision. Regrettably, however, a long delay then arose in dealing with the appeal, which was due to a shortage of resources that has now been addressed.

I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by ESB and the appellants. I have also had regard to: the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the 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) [the Aarhus Guide].

Scope of Review

Under article 12(5) of the AIE Regulations, my role is to review ESB's internal review decision to refuse the request and to affirm, annul or vary it. My review is concerned with the question of whether ESB's decision to refuse the request was justified under the AIE Regulations.

Analysis and Findings

Definition of "environmental information"

In line with article 2(1) of EU Directive 2003/4/EC, article 3(1) of the AIE Regulations defines "environmental information" as

"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 . . . 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 ... conditions of human life, cultural sites and built structures ...affected by the state of the elements of the environment...or through those elements, by any of the matters referred to in paragraphs (b) and (c)".

The appellants contend that the requested information is environmental information within the meaning of the AIE Regulations. In their submissions, the appellants emphasised that the definition is broad and does not exclude financial information of a commercially sensitive nature. They noted that financial information is explicitly included at paragraph (e) of the definition. They identified the Project as the relevant measure affecting the elements and factors of the environment, describing it as a "major project involving the construction of significant electricity transmission infrastructure in the North West of Ireland". They maintained that the cost of such a measure is not separable from the measure and its actual or likely effect on the environment. They referred to the recent judgment of Baker J in Minch -v- Commissioner for Environmental Information [2016] IEHC 91 in support of their position.

In its submissions, ESB argued that the information requested in relation to the costs of the Project does not fall within the definition of environmental information as set out in article 3(1) of the Regulations. It noted that the costs are not information on the state of the elements of the environment or a factor that is likely to affect the state of the elements of the environment. ESB did not dispute that the Project itself is a measure within the meaning of article 3(1)(c) of the environmental information definition. It described the measure, which it referred to as the "Flagford-Srananagh 220kV Line Project", as consisting of "the...