Decision
Mr T and ESB Networks DAC
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-103363-N4S3M2
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-103363-N4S3M2
Published on
Case Number: OCE-103363-N4S3M2
Whether ESBNDAC was justified in refusing access to maps or drawings of four particular ESB lines, under articles 9(1)(d) and 9(1)(a) of the AIE Regulations
1. On 3 November 2020, the appellant made a request under the AIE Regulations for maps/drawings, to the best scale available, of:
2. On 2 December 2020, ESBNDAC refused the request under articles 9(1)(d) and 9(1)(a) of the AIE Regulations. ESBNDAC also advised the appellant that the Stranorlar-Rosgrier line was a 38kV line rather than a 110kV line.
3. The appellant requested an internal review of the decision on 7 December 2020, and ESBNDAC affirmed its original decision on 8 January 2021.
4. In an email received by this Office on 5 February 2021, the appellant appealed ESBNDAC’s decision to refuse the information sought. In the course of the review, both ESBNDAC and the appellant made submissions in support of their positions. While ESBNDAC made arguments in its original and internal review decisions as to the intellectual property rights of Ordnance Survey Ireland (OSI), it did not consult with OSI before making its decisions in this case. Consequently, this Officesought the views of OSI in the course of the review.
5. I have now completed this review under article 12(5) of the Regulations. In so doing, I have had regard to the correspondence between ESBNDAC and the appellant as outlined above and to correspondence between my Office and ESBNDAC, OSI and the appellant on the matter. In addition, I have had regard to:
6. What follows does not comment or make findings on each and every argument advanced but I have considered all materials submitted in the course of the investigation.
7. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, the Commissioner will require the public authority to make available environmental information to the appellant.
8. This review is concerned with whether ESBNDAC was justified in refusing the appellant’s request under articles 9(1)(d) and 9(1)(a) of the AIE Regulations.
9. At the same time as his request to ESBNDAC, the appellant made an identical request to ESB, the parent company of ESBNDAC. In his submissions to this Office, the appellant noted that the original decisions of ESBNDAC and ESB, although signed by different people, appeared almost identical and that one internal review decision was provided to him in respect of both requests.
10. He submits, in the first instance, that in order to come to identical decisions, ESBNDAC and ESB must have engaged in communications confirming receipt of the requests and communicating some form of agreement for one person to deal with the requests at original decision and internal review stage and for both public authorities to issue the same decision. He argues that this process subverts the requirements of the AIE Regulations as it is clear that one or other of the decisions were not made by the public authority to whom the request was submitted. He argues that the process of agreement invalidates the decisions and undermines the process for independent decisions on environmental information by public authorities based solely on the requirements of the AIE Regulations.
11. I do not consider this argument to have been successfully made out in the circumstances of this case. I note that the decisions issuing from both entities are almost identical, however, there is no suggestion that the decisions do not have sufficient regard to the requirements of the AIE Regulations (albeit that the interpretation of those requirements is a matter of contention between the parties). In circumstances where both public authorities are part of the same Group and received identical requests, it does not appear to me to be unreasonable or inappropriate that some degree of consultation took place before a decision was reached and that there was a certain synergy in the approach of both entities in order to maximise the efficient use of resources. Indeed, I note in this regard that the submissions provided by the appellant in support of his appeals for both requests are almost identical. There is nothing in the Regulations, in my view, which prevents public authorities from communicating with one another in relation to the handling of similar AIE requests and indeed there are potential benefits to such an approach. The original decisions are almost identical in the rationale for refusal provided but the request received by both entities is identical and the fact that each has been signed off by a different staff member suggests that even if they were prepared by the same individual, they were reviewed and approved separately by ESBNDAC and ESB. It is not unusual for an ultimate decision-maker to have received some assistance or input in the making of a decision which they review and approve, amend or in some cases reject. I am not satisfied therefore that there is a sufficient basis to conclude that the original decisions should be considered invalid having regard to the requirements of the Regulations.
12. Secondly, the appellant submits that the internal review decision should be considered invalid on the basis that it is not permissible for a public authority to contract the handling of an internal review to a third party. He refers to article 11(2) of the AIE Regulations which provides that “following receipt of a request [for internal review], the public authority concerned shall designate a person unconnected with the original decision whose rank is the same as, or higher than, that of the original decision-maker to review the decision”. He submits that the use of the phrase “internal review” in the Regulations expressly requires that the review be carried out internally and not externally by another public authority. He submits that what has occurred in this case is that ESBNDAC has sub-contracted the handing of internal reviews of AIE requests externally to another public authority and to a person whose rank cannot be higher than that of the original decision maker in the public authority since they do not work for or within that public authority.
13. I do not agree with the appellant’s contention that what has occurred in the circumstances of this case risks erosion of the Regulations by facilitating the “contracting out” of AIE decision-making. What has occurred in this case, as I understand, is that the original decisions in both cases were escalated to ESB’s Environment and Sustainability Manager who carries out certain functions at a Group level. ESBNDAC is a subsidiary of ESB and, I understand, as the appellant points out, that there are regulatory requirements mandating separation of certain business activities for each of ESB’s licensed entities which are subject to the approval and oversight of the Commission for the Regulation of Utilities. However, ESB has confirmed to this Office that the internal reviewer was designated by ESB, as the parent company, to review AIE decisions by ESB business units/subsidiaries under the AIE Regulations. I am not convinced, from an AIE perspective, that the fact that a senior staff member of the parent company of ESBNDAC, whose responsibility appears to cover certain activities from the perspective of the ESB Group as a whole, has conducted the internal review of the same request on behalf of both entities, raises sufficient doubt over the validity of the internal review decision to warrant further inquiry by my Office. I reach this conclusion having regard to the circumstances of this particular case where an identical request has been made to two public authorities which are part of the same Group of companies such that one might reasonably expect a degree of overlap and resource-sharing, subject to any regulatory requirements. I am also mindful that in circumstances where the appellant has issues with the substantive decision reached by ESBNDAC, and where ESBNDAC has maintained the position that articles 9(1)(d) and 9(1)(a) justify refusal of the information, remittal of the decision on the basis of a finding that the internal review was invalid is likely to result in the same decision being issued and a further appeal to my Office leading to an inefficient use of resources on the part ofthe public authority, the appellant and this Office. In those circumstances, I am satisfied that the most appropriate course of action is to proceed with the substantive review and that I have jurisdiction to do so.
14. Finally, the appellant submits that the internal review request was not conducted appropriately. He relies in this regard on a statement in the internal review decision which notes that “in your internal review requests you have not offered any supporting arguments. Therefore, in my internal review, I considered the arguments made by the decision-makers for withholding the records, including the assessment of the balance of the public interest”. The appellant argues that by carrying out a review of the arguments made in the original decision, the internal review decision-maker did not comply with the requirement to carry out a de novo review of the request. As set out in article 11(2), the AIE Regulations require an internal reviewer to “review the [original] decision” and “affirm, vary or annul the decision”. This is similar to the wording of article 12(5) which deals with my jurisdiction on appeal and provides that I shall “review the decision of the public authority” and “affirm, vary or annul the decision concerned”. The High Court has confirmed in M50 that the review referred to in article 12(5) is a de novo review, in contrast to the jurisdiction conferred on the High Court by article 13(1) of the Regulations which is specifically to conduct a review “on a point of law”. Given the similarity of the wording in articles 11(2) and 12(5) of the Regulations, it is reasonable to assume that the internal review is also envisaged by the Regulations to be conducted on a de novo basis. This aligns with article 6 of the AIE Directive which requires “access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by that or another public authority or reviewed administratively by an independent and impartial body established by law”. However, it is also important to note that articles 11(2) and 12(5) specifically envisage a review of the decision concerned (i.e. the original decision at internal review stage and the internal review decision on appeal to this Office). The requirement to conduct a de novo appeal does mean that the internal reviewer and this Office must have regard to the circumstances as they exist at the time of the review and consider the matter anew but it does not, in my view, require them to ignore the decision being reviewed altogether, to do so would amount to failure to comply with the express requirement in articles 11(2) and 12(5) to review the decision and affirm, vary or annul it
Article 9(1)(d)
15. Article 9(1)(d) provides that “a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect … intellectual property rights.”
16. Article 9(1)(d) must be read alongside article 10 of the AIE Regulations, which provides for certain limitations on the ability of a public authority to refuse environmental information. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal and article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.
17. In its original decision, ESBNDAC stated that the maps sought had been prepared for or on ESB’s behalf using mapping data provided to it under licence by OSI. It stated that the licence was non-transferable and provided that the data may be used solely for ESB’s internal business purposes. ESBNDAC stated that the licence mandated that it fully protect the intellectual property rights in the OSI data and that it did not allow ESB to sub-licence, distribute, sell or otherwise make available to third parties OSI data save for contractors or agents with whom it had a legally binding agreement. ESBNDAC argued that releasing the maps sought, in the absence of any extension of the licence, would amount to a breach of the licence agreement with OSI and would adversely impact OSI’s intellectual property rights. It also noted that the fact that the appellant held a licence from OSI was not relevant as that licence governed use by the appellant of data provided to him by the OSI and did not entitle him to access or use OSI data provided by OSI to third parties.
18. The appellant, in his submission to this Office, accepted that OSI held copyright in part of the maps he requested. He argued, however, that granting the request was not a breach of copyright or of the licence agreement between ESB and OSI.
19. The appellant argued that section 76 of the Copyright Act 2000 allowed for the release of copyright material under a statutory obligation such as the AIE Regulations. Section 76 provides that “where the undertaking of a particular act is specifically authorised by an enactment then, unless the enactment provides otherwise, the undertaking of that act shall not infringe the copyright in a work” and that “nothing in this section shall be construed as excluding any defence available under an enactment”. He also stated that, while ESBNDAC appeared to have based its decision on an assumption that he would breach the copyright of the OSI maps should they be released to him, he himself held an OSI licence and was familiar with his obligations under that licence.
20. When contacted by this Office for its views regarding the release of the information sought, OSI stated that it had no objection to the release of the mapping data either administratively, or on foot of a formal decision by this Office.
21. When notified of this fact, ESBNDAC made further arguments regarding the applicability of article 9(1)(d). It argued that the fact that OSI did not object to the release of the information did not alter the terms of its licence agreement, and that the licence had no provision to allow ESBNDAC to release OSI data in a situation or to a third party not explicitly set out in the licence.
22. ESBNDAC explained that the terms of the licence set out that if ESB were to breach the licence, OSI may terminate the licence immediately on notice to ESB. ESBNDAC argued that this would have a calamitous effect on the day-to-day business of ESB, as it would be unable to produce new maps with OSI data and would have no means of accurately recording the location of electrical infrastructure. It stated that this would have a devastating effect on public safety. It also argued that this would cause untold disruption to the business operations of ESBNDAC and ESB, as it would limit or halt ongoing maintenance and upgrade work on the electricity network. It argues that notwithstanding the consultation between this Office and the OSI “there has been no alteration to the agreed licence and ESB and ESBNDAC must abide by the agreed terms of the licence”.
23. It is important to return here to the precise wording of article 9(1)(d) of the Regulations which permits refusal where disclosure of the information at issue “would adversely affect intellectual property rights”. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. In addition, Recital 16 of the AIE Directive provides that “the right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases”. Article 10(4) of the Regulations provides that the grounds for refusal of a request must be interpreted on a restrictive basis having regard to the public interest served by disclosure. This Office therefore considers that the scheme of the AIE Regulations and the AIE Directive makes it clear that there is a presumption in favour of release of environmental information and it is for a public authority seeking to withhold environmental information to rebut that presumption by reference to the grounds for refusal provided for by the Regulations and the Directive.
24. This interpretation is supported, in my view, by paragraph 69 of the decision of the CJEU in Land Baden-Württemberg in which it found as follows:
“…[A] public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical”.
25. The intellectual property rights at issue in this case are those of OSI. OSI has informed this Office that it has no objection to release of the information requested in this case. There is therefore no basis upon which to conclude that release of the information at issue would adversely impact intellectual property rights. It is regrettable that ESBNDAC did not seek to consult with OSI before reaching a decision that release would have such impact.
26. ESBNDAC argues that the potential adverse impact in this case is the impact it would suffer were OSI to assert that release of the information at issue in this case breached the terms of the licence and terminate the licence agreement on that basis. In the first instance, ESBNDAC has not established how this can be said to be an adverse impact on intellectual property, which is what article 9(1)(d) seeks to guard against. The other difficulty faced by ESBNDAC is that in circumstances where OSI has indicated it has no objection to release, it is difficult to reach a conclusion that the risk asserted by ESBNDAC is reasonably foreseeable as opposed to purely hypothetical. In addition, a direction by this Office to disclose environmental information is a legally binding one and in circumstances where OSI has indicated it has no objection to such a direction, it cannot be said that it is “reasonably foreseeable” that OSI would seek to terminate the licence on the basis that ESBNDAC followed a legally binding direction to release information to which that licence relates.
27. Finally, ESBNDAC refers to a previous decision of this Office in CEI/13/0010 Lar McKenna and ESB in which, it submits, my predecessor found that “as the release of information under AIE is without restrictions, it is not open to either ESB or this Office to seek an extension of the licence for the purpose of granting the appellant's AIE request”. I am not bound to follow previous decisions issued by this Office and consider each case afresh on the basis of its facts but I note in that case that the comment relied on by ESBNDAC was made in relation to the applicability of article 9(2)(a) of the Regulations (i.e. the question of whether the request was manifestly unreasonable), which was found to provide grounds for refusal of the information at issue, and the issue of whether release of information would give rise to an adverse impact on intellectual property rights, such that article 9(1)(d) would apply, was not considered in detail. I am not persuaded that release of the information in this case would negate all of OSI’s intellectual property rights in the underlying maps and I note in that respect that the European Commission in its Proposal for a Directive of the European Parliament and of the Council on public access to environmental information ( COM/2000/0402 final - COD 2000/0169 ) specifically stated that “so far as concerns the exception in relation to intellectual property law, it should be noted that, if access to environmental information covered by such a right is granted, the applicant will have to observe the relevant intellectual property right governing the use intended by him. This generally means that he would not be able to reproduce or exploit it for any other economic purposes without the prior authorisation of the rightholder”. In any event, the issue for consideration is whether release of the information in this case “would adversely affect intellectual property rights” and, as outlined above, I do not consider there to be a basis for me to come to that conclusion in circumstances where the holder of those rights does not object to release of the information.
28. In circumstances where OSI does not object to the release of the information sought and where ESBNDAC has not established a “reasonably foreseeable” risk of any adverse impact to intellectual property rights, in accordance with the provisions of article 9(1)(d) and article 10,I am satisfied that there is no basis for a finding that refusal of the information requested is justified on the basis of article 9(1)(d) of the Regulations.
Article 9(1)(a)
29. Article 9(1)(a) provides that “a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect … international relations, national defence or public security”.
30. In its original decision, ESBNDAC stated that the maps contained detailed information in relation to the location of electricity infrastructure in Ireland, including the location of substations. It stated that due to the increase in the theft of copper from substations and the theft of whole sections of the electricity network, resulting in a very significant risk to the security of supply and to public safety, ESB and ESBNDAC restrict and control the dissemination of detailed information relating to the location of the distribution network. It also stated that the public interest was better served by not releasing the maps sought. In its internal review decision, ESBNDAC stated that such theft was a “serious and increasing problem” with “serious security of supply implications” which “poses public safety issues” and that it “ha[d] accordingly restricted access to this information since this trend first appeared”.
31. In his submission to this Office, the appellant noted that electricity infrastructure is visible and easy to find from any public road. He further noted that the location of substations and electricity lines was readily accessible on a number of websites including landdirect.ie; esb.ie; and eirgrid.com.
32. The appellant argued that between Eirgrid’s transmission map, Land Direct’s online mapping and the ESB Telecom’s website showing fibre optic cables that have been installed on certain distribution and transmission lines, much of the information which could be said to enable the type of theft suggested by ESBNDAC was already available to the public. He argued that in those circumstances, there was no basis for ESBNDAC’s contention that releasing the information sought would damage public security.
33. In its submissions to this Office, ESBNDAC further argued that if the wider public were aware of the exact location of substations and electricity lines via the maps the appellant had requested, it would increase the likelihood of break-ins and thefts at those locations, usually in an attempt to steal copper which is used in electricity infrastructure.
34. ESBNDAC identified a number of potential adverse outcomes of such criminal actions against ESB or ESBNDAC property. It explained that there was a risk of physical and potentially fatal injury to the person carrying out the theft, as the cables and substations have live electricity coursing through them. It also explained the risk that cables could be damaged in the course of such criminal activity and subsequently pose a threat to members of the public who could stumble across a damaged live cable or an unsecured substation. ESBNDAC stated that disruption to supply caused by theft could risk the lives of people in hospitals nearby or those otherwise dependent on electrical medical equipment to treat life-threatening conditions. Such disruption, ESBNDAC argued, would also cause losses to businesses and disruption to local residents. ESBNDAC also argued that the repair and replacement of equipment in the aftermath of such thefts and damage has a significant financial cost.
35. ESBNDAC stated that it has a legal obligation to maintain safe and secure networks. It stated that the public interest in the information being released was served to some extent through its ‘Dial before you Dig’ programme, where by the public may contact ESB Networks to get maps showing the location of underground cables in specific areas for specific digging and excavation reasons. ESBNDAC explained that the risk to the public by releasing the maps far outweighed the interest of an individual in the maps. It provided two newspaper articles, one in the Irish Examiner dating from 2019 and one from the Irish Times in 2016, reporting on copper wire thefts.
36. Again, it is important to return to the wording of article 9(1)(a) which allows for refusal of information if disclosure of that information “would adversely impact…public security” and to consider the requirements of article 10, referred to above and the decision of the CJEU in Land Baden-Württemberg. ESBNDAC has made submissions as to how the theft of material from substations might adversely impact public security but it has not, in my view, established that release of the specific information at issue in this appeal would reasonably foreseeably (as opposed to purely hypothetically) increase the risk of such thefts. I note in this regard that its internal review decision implies that such thefts have been increasing despite its policy to limit disclosure of information relating to the location of the distribution network. As the appellant also points out, much electricity infrastructure is visible and relatively easy to find from any public road. In addition, a significant amount of information in relation to the location of electricity infrastructure is already publicly available including maps of the transmission network and maps showing fibre optic cables which have been installed on certain distribution and transmission lines. Further information on the location of infrastructure on ESBNDAC’s distribution network is also made available under its Dial before you Dig programme. Finally, having reviewed the information in question, I note that it consists of what I would consider to be a high level indication of the location of the line over a relatively significant distance and does not provide detailed information on the location of substations or other such infrastructure.
37. It is not clear how the withholding of the information requested in this case is necessary to guard against any adverse impact on public security in circumstances where other information in relation to electricity infrastructure is publicly available and has not caused significant disruption of the nature alluded to by ESBNDAC in its submissions. As outlined above, I consider that the presumption of disclosure provided for by the AIE Regulations and Directive means that it is for the public authority refusing disclosure to satisfactorily establish that refusal is warranted having regard to the grounds for refusal set out in the Regulations and I do not consider ESBNDAC to have done so in this case.
38. I do not consider that ESBNDAC has satisfied me that disclosure of the information requested in particular would result in the adverse outcomes it identified in its submissions to this Office. As a result, I am satisfied that there is no basis for a finding that refusal of the information requested is justified on the basis of article 9(1)(a) of the Regulations.
39. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the ESBNDAC’s decision and direct release of the information requested. I also direct ESBNDAC to ensure that release of the information is accompanied by a clear statement that such release is without prejudice to OSI’s copyright.
40. 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.
Ger Deering, Commissioner for Environmental Information