Sandra Cusack and Eirgrid PLC

• Case Number: CEI/14/0016
• Decision Date: 22 January 2016
• Issuer: Eirgrid
• Applied Rules: Art.9(1)(c), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Sandra Cusack and Eirgrid PLC

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/14/0016

Published on 22 January 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)

Appellant: Sandra Cusack,

Public Authority: EirGrid plc

Issue: Whether EirGrid was justified in refusing part of the appellant's request for information relating to a plan to construct a new high voltage power line linking Leinster with Munster

In accordance with article 12(5) of the AIE Regulations, the Commissioner reviewed EirGrid's decision and found that refusal to provide access to the information requested was not justified on the grounds of commercial or industrial confidentiality by article 9(1)(c). Accordingly, the Commissioner annulled EirGrid's decision and, citing article 12(5)(c), required EirGrid to make the requested information available to the appellant.

Right of Appeal: A party to this appeal or any other person affected by this decision may appeal this decision 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

In 2014 EirGrid managed a project called the Grid Link Project. The project consisted of a plan to design and construct a new high voltage power line linking Leinster with Munster, in order "to ensure future electrical power needs are met in the south and east of Ireland".

The project considered six route options and two technical options. The technical options were 1. the use of overhead lines and 2. the use of underground cables. All options were evaluated against set technical, economic and strategic criteria. Against the background of a strong public interest in the "overhead or underground" question, EirGrid chose the overhead option. In recognition of the strong public interest in the matter, in January 2014 the Minister for Communications, Energy and Natural Resources, acting on foot of a Government decision, appointed an Independent Expert Panel to conduct a review of the "overhead versus underground" options.

The appellant submitted a request for environmental information to EirGrid on 9 July 2014. She quoted from EirGrid's Stage 1 Report for the Grid Link Project which said: "it is EirGrid's policy that for technical and operational reasons underground cables shall not be installed at intermediate points along an overhead line". The request was posed as follows: "In light of the foregoing, I would like to receive a copy of any reports completed for or by EirGrid which were prepared to support the technological solution proposed and routing for the Grid Link project in the Stage 1 report, such reports to include financial cost benefit analysis of possible solutions assessed where they exist".

EirGrid notified the appellant of its decision to part-refuse the request on 8 August 2014. It provided access to information contained in a number of reports and in a redacted capital approval document. The latter document was entitled "CP0732 Cork-Dublin Project- Phase 2 EirGrid plc Board papers - June 2011". This was a report prepared for submission to the Board of EirGrid, seeking approval for capital expenditure for phase 2 of the project, which would involve the development of a new electricity transmission line running for over 200 km. The report identified six alternative options, including one employing underground-cabling rather than overhead lines. It contained data on the expected "economic performance" of each option, used in the process of selecting a preferred option for the project. This economic analysis considered capital costs, operating and maintenance costs, and production costs. In the copy of the report given by EirGrid to the appellant, only figures relating to the underground-cabling option were redacted, and redaction was said to be for the protection of commercial confidentiality.

The appellant requested an internal review of EirGrid's decision, claiming that the redaction of figures on pages 15 and 19 of the capital approval document was unjustified. EirGrid reviewed the decision and affirmed the original decision.

On 23 October 2014 the appellant appealed to this Office seeking access to the redacted financial information specified above.

I regret the delay that arose in conducting this review. The delay was due to a shortage of resources in my Office, which has now been addressed.

In conducting my review, I took account of the submissions made by the appellant and by EirGrid. 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).

Developments since the acceptance of this appeal by OCEI

On 28 September 2015 EirGrid submitted a report to the Expert Panel which announced EirGrid's preference for a new technical option for the project, which it called "the Regional Option". The Regional Option proposed a way in which the existing grid infrastructure could be strengthened without the need for any new overhead lines or underground cables. In light of this development, the Expert Panel issued a statement on 8 October 2015 saying that "the Panel's work in respect of Grid Link had been "overtaken by the emergence of the Regional Option" and noting that such an option was outside of its terms of reference. The statement also recorded the Panel's "expectation" that neither the underground cable option nor any overhead line options would "be progressed in the short to medium term", and expressed its conclusion that it should not undertake any further analysis regarding the completeness, comparability and objectivity of EirGrid's reports (i.e. on the overhead and underground options).

Scope of Review

Under article 12(5) of the AIE Regulations, my role is to review EirGrid's internal review decision and to affirm, vary or annul it. The issue before me is whether EirGrid's decision to refuse access to the redacted information was justified.

Statutory provisions

Article 3(1) of the AIE Regulations 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 9(1)(c) provides that refusal is discretionary (subject to article 10(1)) where disclosure would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.

Article 10(1) provides that: "notwithstanding articles 8 and 9(1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment".

Article 10(3) provides that "the public authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal".

EirGrid's position

EirGrid submitted that its decision was justified by article 9(1)(c) because the redacted information concerned the cost of High Voltage Direct Current underground cable provided by a single cable manufacturing company based in Switzerland. EirGrid argued that disclosure of the information would amount to a breach of commercial confidentiality where such confidentiality is provided for in national or Community law to protect a legitimate economic interest. EirGrid submitted that the supplier's confidential costings "would be evident" from the information.

EirGrid submitted a detailed argument in support of its position. I do not intend to reproduce that argument in its entirety, but I have given it careful consideration. What follows is a summary of the key points of the...