Thomas Freeman and ESB Networks Designated Activity Company

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0016
• Decision Date: 08 May 2017
• Issuer: ESB Networks Designated Activity Company
• Applied Rules: , European Communities (Access to Information on the Environment) Regulations, 2007

Thomas Freeman and ESB Networks Designated Activity Company

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0016

Published on 8 May 2017

Background

The AIE Request

The appellant wrote to the Company on 13 January 2016, saying the following:

"I wish to make the following request under the 2007 AIE Regulations. Some of the information sought is referenced in the attached document.

1. Copies of the easements acquired by ESB Networks for electricity lines, either compulsorily or by agreement, from 2009 to 2015 inclusive.

2. A copy of ESB Networks procedures for dealing with easements and loss of development (section 3.1 of the attached document refers).

3. A copy of the ESB Networks process for dealing with (i) landowners' claims for compensation and (ii) claims for devaluation of property (section 3.1 & 3.4 refers).

4. A copy of [a specific] letter from January 2009 (referred to in section 3.2).

5. Details of the stage payments made by ESB Networks as referred to in section 3.5 of the attached document, including how those stage payments are calculated.

6. Details of the 'consideration amounts' for 110kV angle masts and polesets referred to in section 3.5(c).

The "attached document" referred to by the appellant is an 18 page redacted document, produced by ESB Network Ltd, entitled "DH07 Planning Permission and Land Access" (DH07).

The Company gave notice of its decision on 12 February 2016. While it provided access to some information on a "without prejudice basis", it found that the requested information is not environmental information and refused the request on that basis. The Company also commented that: the request was voluminous; the records contain personal information; disclosure would adversely affect commercial or industrial confidentiality; and the public interest does not require disclosure.

The appellant requested an internal review of the decision on 7 March 2016. He added that the documents which the Company had made available were already in the public domain and do not contain any of the requested information.

The Company gave notice of its internal review decision on 24 March 2016. It affirmed the refusal of the request on the ground that the requested information is not environmental information. The internal review decision maker did not give detailed consideration to whether, if the requested information is environmental information, refusal might be justified on the grounds of the concerns mentioned by the original decision-maker (i.e. the request is voluminous; the records contain personal information; disclosure would adversely affect commercial or industrial confidentiality; and the public interest did not require disclosure), but briefly endorsed those concerns.

The appellant appealed this decision in so far as it concerned parts 2, 3 and 4 of his request.

Scope of Review

My primary role is to review the decisions of public authorities on AIE requests. In this case the Company's decision was made on the request as a whole. However, since this appeal only concerns parts of the overall request, the Company suggested that it would be appropriate for me to review its decision only in so far as it relates those parts, while taking account of the context in which the decision as a whole was made. This was agreed.

The scope of this review is therefore limited to: identifying any information that is held by the Company and captured by parts 2, 3 and 4 of the request and determining whether any such information constitutes environmental information.

In conducting my review I took account of the submissions made by the appellant and by the Company. 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 (the Minister's Guidance); Directive 2003/4/EC (the AIE Directive), 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).

Preliminary issue: confirming the identity of the public authority to which the AIE request was addressed

Although this issue is not disputed by the parties, I nonetheless thought that I should satisfy myself on this matter as a preliminary step. Throughout his AIE request the appellant referred to "ESB Networks". Potential for confusion arises because ESB Networks and ESB Networks Ltd (now renamed "ESB Networks DAC") are two separate entities. "ESB Networks" is a business division of the ESB, which is a statutory corporation. While the ESB is a public authority for the purposes of the AIE legislation, ESB Networks is part of that public authority and is not itself a public authority. On the other hand, ESB Networks Ltd (now ESB Networks DAC) is a wholly owned subsidiary company of ESB and it is the licensed distribution system operator. It is a separate legal entity in its own right and a public authority for the purposes of the AIE legislation. This potential for confusion is all the greater because documents produced by ESB Networks DAC often bear the "ESB Networks" logo, which is the ESB logo followed by the word "Networks".

The appellant sent his AIE request to foi@esbnetworks.ie, which is the email address provided for use in Freedom of Information requests by ESB Networks DAC on its website (www.esbnetworks.ie/). I am therefore satisfied that the appellant directed his AIE request to ESB Networks Ltd - now ESB Networks DAC - and that references to "ESB Networks" in the AIE request should be understood as references to ESB Networks DAC (the Company).

First substantive issue: identifying the information (if any) that is captured by parts 2, 3 and 4 of the AIE request and held by the Company

My investigator asked the Company for a copy of its records relating to parts 2, 3, 4 of the AIE request. Each of those parts referred to paragraphs in the DH07 document referred to earlier. This document was created by the Company and its front page states that it was submitted to the Commission for Energy Regulations (CER) on 27 November 2009.

The Company supplied records numbered 1 to 14, along with a schedule. In an accompanying letter, the Company said that records 1 -13 are "possibly" relevant to parts 2 and 3 of the request, and record 14 is relevant to part 4. In a later submission the Company said that records 2, 3, 4 and 10 are out of scope because they are not captured by the request. It argued that this is because the references in the AIE request to DH07 mean that the request should be understood as being confined to records which informed the drafting of DH07. I considered the contents of the relevant sections in DH07 and I found no basis for that conclusion. It is simply the case that DH07 suggests the existence of certain documents which the appellant was specifically asking for in his AIE request. So, while I do not accept the Company's argument in this regard, I am satisfied that the request has to be understood in the light of what those references to DH07 mean.

The paragraphs in DH07 referred to in parts 2 and 3 of the AIE request are 3.1 and 3.4. These announce that new procedures "were developed" for dealing with easements and loss of development, along with a processes to be followed for dealing with landowners' claims for compensation and claims for devaluation of property. Paragraphs 3.1 and 3.4 relate to the same procedures and processes: the "new procedures" referred to in paragraph 3.4 are clearly those referred to earlier in the "new approach" reported in paragraph 3.1. It is clear to me that the appellant, by wording his AIE request as he did, was asking for a copy of these new procedures. I take it that "new" in these circumstances means documents which were "new" when DH07 was drafted in late 2009. The introduction to section 3 in DH07 indicates that the new processes and procedures referred to had been introduced following a...