Decision
Mr Lar McKenna and ESB
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-120921-D9H8T7
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-120921-D9H8T7
Published on
Whether the ESB was justified in refusing part 5 of the request under Article 9(2)(a) of the AIE Regulations
22 February 2024
1. On 24 December 2021, the appellant requested;
1. A list of current Authorised Officers appointed under Section 9 who may exercise the powers and perform the functions and duties of the Electricity Supply Board under (i) section 20 (4); (ii) section 53, and (iii) section 98, of the Electricity (Supply) Act, 1927 (“the Authorised Officers”)
2. A copy of the nomination(s) of the Authorised Officers, including any information relied on for the purpose of the nomination such as information as to the extent of or limitation on the authorisation.
3. A copy of the approval(s) of the Authorised Officers including any information relied on for approval of the authorisation and the minutes of the meeting where such authorisation was approved.
4. Information on what section/division/area of ESB each of the Authorised Officers work within.
5. Information on any training, guidance, policy, code of practice, memorandum, procedures, rules or regulations provided to the Authorised Officers in relation to the exercise of the powers, functions or duties for which they have been authorised.
2. The ESB replied on 22 of January 2022, partially granting the request.
3. The appellant requested an internal review on 22 January 2022.
4. The ESB responded on 21 February 2022 affirming its original decision.
5. The appellant appealed to my Office on 22 March 2022 in relation to part 5 of this request only.
6. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In carrying out this review, I have had regard to the submissions made by the appellant and the ESB, In addition, I have 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) (‘the Aarhus Guide’).
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered. unreasonable to believe
7. This review is concerned with whether the ESB was justified in refusing part 5 of the request under Article 9(2)(a) of the Regulations.
8. Part 5 of the request seeks information on any training, guidance, policy, code of practice, memorandum, procedures, rules or regulations provided to Authorised Officers in relation to the exercise of the powers, functions or duties for which they have been authorised. The duties of Authorised Officers are wide ranging and the ESB estimate that there are potentially thousands of hardcopy documents which it would need to locate in order to fully satisfy this request.
9. The documents in question allow Authorised Officers to exercise the powers and functions of the ESB under Sections 53 and 98 of the Electricity (Supply) Act. Section 53 of the Act deals with access to place electric lines above or below ground across lands not being a road, street, railway or tramway and Section 98 of the Act deals with land access for the purpose of cutting/lopping tree/shrubs/hedges that obstruct or interfere with any electrical wires, or with the erection or laying of any such electrical wires or with the survey of the proposed route of any electric lines.
10. The ESB refused this part of the request, relying on the exception provided for under Article 9(2)(a) of the Regulations, which provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought.
11. During the course of the investigation the ESB were asked to set out in detail how relevant documents are organised and filed and whether they are kept in hardcopy or electronic format, in addition to where such files are stored and if they are searchable by keyword or other parameters.
12. The ESB were also asked to provide details of all steps that would be necessary to identify the documents relevant to part 5 of the request and to provide an estimate of the number of hours and number of staff required to process this part of the request.
13. These details were provided to the investigator in order for this Office to carry out a review, however the ESB have asked that the details contained in their submission with regard to their data storage systems and practices be kept confidential which I believe is reasonable in the circumstances.
14. What I can set out here is that through an initial search the ESB have located approximately 300 relevant documents which were easily identifiable and these are stored electronically on their document storage system which was completed in 2021.
15. In order to locate every possible additional relevant record, the ESB estimate that at least 500 members of staff in over 50 locations would be required to carry out a search of all archived soft copy files, in addition to a full search of the ESB archives located in Dublin. The ESB submit that it would then have to examine each record to determine it was within scope of the request. Taking all of this into account the ESB set out in its submission that they believed that it would be disproportionate to remove its staff from their day-to-day functions and its staff were better placed carrying out their core duties, rather than administering Part 5 of this AIE Request.
16. I note that having carried out an initial search for relevant records the ESB contacted the appellant with a request to narrow the scope of the information requested in relation to Part 5 of the original request as the ESB believed that it was a manifestly unreasonable. The ESB suggested that the appellant revise the request and suggested he limit the request to a 12-month period. The appellant refused as he is entitled to do so, however I would ask requesters to be mindful of the amount of information being requested and to submit focused requests where possible, or work with public authorities to narrow requests in circumstances such as these to assist public authorities to release as much information as possible.
17. I note that the powers, duties and functions of authorised officers are wide-ranging, resulting in a potentially thousands of documents at over 50 locations being relevant to this request. I also note that the appellant did not place a time-limit on his request. Considering the resources needed to examine and process the potentially thousands of relevant records which would be required to fully satisfy part 5 of the appellant’s request, I am satisfied that this would result in a disproportionate diversion of resources from the other important services that the ESB provides to the public, and that the request is manifestly unreasonable within the meaning of article 9(2)(a).
18. Considering article 10(3) of the Regulations, I consider that the factors in favour of disclosure in this case are the general public interest in disclosure of environmental information, and the public interest in transparency surrounding how the ESB carries out its functions. In favour of refusal, I consider that there is an interest in ensuring that the ESB are not required to divert significant resources for the processing of this request which would be to the detriment of ESB’s other activities. I agree with the ESB that the public interest served by disclosure in this case does not outweigh the interests served by refusal. Accordingly, I find that ESB was justified in refusing part 5 of the appellant’s request on the basis that article 9(2)(a) applies.
19. It is open to the appellant to reconsider the scope of his request and to submit a new request to ESB.
20. Having carried out a review under article 12(5) of the AIE Regulations on behalf of the Commissioner for Environmental Information, I affirm the decision of the ESB.
21. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information